Common Order: 1. The instant Writ Petition and the Contempt Case are essentially interconnected and the adjudication of the Contempt Case is dependent upon the orders passed in the Writ Petition, as the said contempt case is filed for alleged willful disobedience of the interim orders passed in the writ petition, both matters are heard together and are being disposed of by this common order by addressing the issues fallen for consideration separately.

2. The Writ Petition No.17842 of 2014 has been filed with the following prayer:

               “……..to issue a Writ, Order or Direction more particularly one in the nature of WRIT OF MANDAMUS declaring the inaction of the respondents 1 and 2 in taking action against the respondents 4 to 6 who violated the provisions of A.P. Apartment (Promotion of Construction and Ownership) Act, 1987 and its Rules as well as violation of the rules of Greater Hyderabad Municipal Corporation Act without leaving area for common area and parking area unauthorizedly constructed Flats on 3rd Floor and Pent House on 4th Floor etc., at Dream Home Dwaraka Nilayam Apartment in Sy. No.198 Plot No. 2, Kothapet Village, Ranga Reddy District as illegal, improper and violation of Article 14, 16 and 21 of Constitution of India and consequently direct the Respondents 1 and 2 to take appropriate action against the Respondent 4 to 6 according to law, and pass such other order or orders as this Hon'ble Court Deems fit and proper in the circumstances of the case.”.

3. The Contempt Case No.1723 of 2015 has been filed with the following prayer:

               “….it is therefore prayed that, this Hon'ble Court may be pleased to punish the respondents under the provision of Contempt of Court Act as they have made false representation and given false instructions to their Standing Counsel on 15.7.2014 viz "on instructions would submit that respondent Nos. 4 to 10 had made illegal construction, and the illegal structures raised by them have already been demolished" in W.P.MP No. 22372 of 2014 in W.P. No.17842 of 2014 in fact such illegal structures are existing, by that prevented the Hon'ble Court to enquire into the matter to pass appropriate orders therein, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case in the interest of justice.”

4. Heard T.Bala Jayasri, learned counsel appearing for the petitioner, learned counsel for the petitioner and Sri Srinivas Rao Pachwa, learned Standing Counsel for GHMC appearing for respective respondents and perused the record.

The brief facts of both the cases:

5. The brief assertion made in the affidavit filed in support of the Writ Petition is that the petitioner is the absolute owner and possessor of Flat No.102, Dream Home Dwaraka Nilayam, House No.1-10-2, Dwarakapuram, Dilsukhnagar Hyderabad, consisting of 590 sq. feet including common areas and car parking admeasuring 120 sq. feet along with undivided share of land admeasuring 18 sq. yards, out of total land admeasuring 384 sq. yards on plot No.2 of Kothapet Village, purchased from respondents No.4 to 6 vide a distinct registered sale deed bearing document No.628/2003, dt.22.01.2003.

6. It is further averred that respondent No.5 and 9, being the owners of the said land, entrusted the work of construction of residential complex to respondent No.6, is the builder, has obtained building permission vide proceedings No.G2/BP/292/2001, dt.02.02.2002 for construction of ground + 2 upper floors, while leaving the ground floor vacant for parking and the petitioner has purchased one flat in the said construction.

7. The sum and substance of the petitioner's contentions succinctly is that respondents Nos.4 to 10, contrary to the sanctioned plan, carried out and made deviations in the construction and raised an additional 3rd floor along with a penthouse on the 4th floor, and thus, the said construction is in clear deviation of the sanctioned plan. It is contended that aggrieved thereby, the petitioner submitted a representation to the respondent-Corporation on 30.05.2014, seeking to take appropriate action against the unauthorized construction, and as the respondent- Corporation has not contemplated any action on the said representation, the petitioner approached this Court by filing the present Writ Petition.

Submissions of the learned Standing Counsel in both cases:

8. Sri Srinivas Rao Pachwa, learned Standing Counsel for respondent- Corporation has stated that the respondents Nos.4 and 6 have obtained permission for ground + 2 upper floors vide proceedings No.G2/BP/292/2001, dt.02.02.2002, and thereafter constructed the said flats and sold the same to the prospective purchasers.

9. It is further contended that when the matter was initially posted for hearing on 15.07.2014, this Court, in WP.MP.No.22372 of 2014 by recording the submissions of the learned Standing Counsel made on oral instructions stating that the illegal constructions made by respondents No.4 to 10 have already been demolished.

10. Learned Standing Counsel reiterating the contentions in the counter contends that in pursuance of the said representation of the writ petitioner, the respondent-Corporation has taken appropriate action against the illegal and unauthorized construction made by respondents No.4 & 6 by following due process of law contemplated under the HMC Act, 1955 by issuing notice under Sections 452(2) & 636 of the Act to the unofficial respondents, who are the affected parties, and thereafter the said unauthorized construction was demolished.

Submissions of the learned counsel for the petitioner in both cases:

11. In reply, Smt T.Bala Jayasri, learned counsel appearing for the petitioner would contend that the learned Standing Counsel has not properly stated the facts before this Court as the Corporation, without there being any demolition of the entire construction, has passed on false instructions and mislead the learned Standing Counsel, and that in fact no action had been initiated by the respondent-Corporation and the unauthorized constructions were still existing on ground, as such, the petitioner had filed a contempt case in CC.No.1723 of 2015.

12. It is further contended that on 03.04.2023, this Court has specifically observed in the said contempt case that, on 15.07.2014 in WPMP.No.22372 of 2014, the respondent-Corporation had made statement before this Court that they had already removed the illegal constructions made by respondents No.4 to 10, and contradicting the said assertion of the respondents, the learned counsel for the petitioner contended that as on that date, a three floor building was existing and surprisingly the unauthorized floor was regularized under Building Regularization Scheme, and thus the statement made by the learned Standing Counsel at the instance of the Corporation is false and amounts to willful disobedience of the interim orders passed by this Court, dt.15.07.2014. In reply thereto, the learned Standing Counsel has contended that in fact the respondents have removed the said illegal construction made by respondents No.4 to 10 in the writ petition, as recorded by this Court in WPMP.No.22372 of 2014, but however, the unofficial respondents, even after demolition, have once again made construction and made an application seeking regularization under the BRS Scheme.

13. Learned counsel for the petitioner further contended that this Court by order dt.03.04.2023, has already observed that the official respondents having removed the illegal construction made by respondent No.4 to 10 in the Writ Petition, are not supposed to entertain any application for regularization under the BRS Scheme, and thus, it amounts to willful disobedience of the order of this Court and as such they are liable to be punished as per law.

Reply of the learned Standing Counsel:

14. At this juncture, Sri Srinivasrao Pachwa, learned Standing Counsel appearing for respondent-Corporation has submitted that pursuant to the Form-I issued by this Court, a counter has been filed by the respondent-Corporation in the contempt case stating that the respondent-Corporation has never indulged in any misrepresentation and that the appropriate procedure contemplated under the provisions of Section 452(2) & 636 of the Act was followed and thereafter the unauthorized construction was removed. However, after the said demolition, the respondents Nos.4 to 10 have once again raised the construction and hence, in view of the Building Penalization Scheme floated by the government, as the said unauthorized constructions were made before the cut-off date as envisaged under G.O.Ms.No.901, MA&UD (M1) Department, dt.31.12.2007, the said constructions have been regularized under the provisions of the said GO i.e., (i) in respect of the pent house and 4th floor vide proceedings No.BPS/2430/C- 3/EZ/GHMC/2008, dt.31.12.2010 in favour of Smt M.Padmavathi; ii) in respect of Flat No.301 of 3rd floor, the owner Mr.K.Vikram Reddy filed an application under BRS No.200031497, dt.25.12.2015, which was stated to be pending; and iii) in respect of Flat No.303 of 3rd floor, one Mr.G.Devadanam, filed an application No.200042510, dt.25.12.2015 under the BRS scheme, which was also stated to be pending.

15. Learned Standing Counsel further contends that the contention of the petitioner that despite the specific representation filed, the respondents-authorities have not initiated any action, cannot be held to be tenable, in view of the notice issued by the respondent-Corporation to the unofficial respondents under Section 452(2) and 636 of the HMC Act 1955 vide No.NIL/TPS/C3/EZ/GHMC/2013, dt.16.09.2013 and the relevant photographs filed, which go to show that demolition was effected.

16. Having heard the submissions of the learned counsel appearing for the respective parties, perused the record.

CONSIDERATION BY THE COURT:

WP.No.17842 of 2014 :

17. From a perusal of the material placed on record, apparently, respondents No.4 to 6 have raised unauthorized construction and that the respondent-authorities issued notice under Sections 452(2) and 636 of the Act, pursuant to which the unauthorized constructions were stated to have been removed.

18. However, the counter along with the photographs would reveal that the unauthorized construction was removed, but after demolition, the unofficial respondents alleged to have once again raised unauthorized construction and more so, a complaint was also filed by the petitioner to the Hon’ble Lokayuktha in respect of the very same representation addressed to the respondent-Corporation, and the respondents have informed the said fact of issuance of notices, dt.16.09.2013 by letter No.A/4337/HO/TPS/C3/EZ/GHMC/2013-1703, dt.19.09.2013, to the Hon’ble Lokayuktha.

19. In that view of the matter, the contention of the learned Standing Counsel that after the respondent-Corporation demolishing the unauthorized construction made by the unofficial respondents No.4 to 6, they have once again raised construction, cannot be ruled out, and thus, it cannot be said that the respondent-authorities have not acted on the representation of the petitioners. However, the fact remains that even before the filing of the representation by the petitioner before the respondent-Corporation, the unauthorized pent house on the 4th floor was regularized in favour of Smt N.Padmavathi, vide proceedings, No.BPS/2430/C-3/EZ/ GHMC/2008, dt.31.12.2010. Further, pursuant to the Building Regularization Scheme floated by the Government, the unofficial respondents have also applied for regularization of flat Nos.301 and 303 vide applications No.200031497 and 200042510, dt.25.12.2015, which are pending consideration.

20. Since the possibility of the unauthorized construction being raised was once again after demolition of the same by the respondentauthorities at the first instance, cannot be ruled out, and further, as the unofficial respondents have availed the benefit of regularization Scheme floated by the Government by filing applications, the respondent- Corporation is required to consider the said applications in accordance with the provisions of the Regularization Scheme at the first instance and only thereafter take appropriate decision in accordance with law.

21. In that view of the matter, the respondent-Corporation is directed to consider the BRS applications filed by the unofficial respondents, by conducting a proper enquiry, in due notice to the petitioner, and if the said applications are found feasible to be considered in terms of the Scheme, appropriate remarks shall be made in the file and subject to the outcome of the lis before the Hon’ble Supreme Court in respect of the said regularization Scheme, appropriate orders shall be passed.

22. In the event if the said applications are found not feasible to be considered, appropriate orders shall be passed by the respondentsauthorities rejecting the said applications giving reasons, and thereafter take appropriate further recourse under the provisions of the GHMC Act, 1955.

23. With the above directions and observations, the Writ Petition No.17842 of 2014 is disposed of. No costs.

24. Insofar as the Contempt Case is concerned, the then learned Standing Counsel has submitted before this Court in the Writ Petition that, pursuant to the interim orders passed by this Court the entire unauthorized construction had been removed.

25. Admittedly, from the photographs filed along with the purported notices issued under Sections 452(2) and 636 of the HMC Act, dated 16.09.2013, it is evident that the respondent-Corporation had initiated proceedings for removal of the unauthorized construction, and had, in fact, carried out the demolition, and, this Court has already considered and held in the Writ Petition that the possibility of raising the demolished structures once-again cannot be ruled out.

26. Further, pursuant to the G.O.Ms.No.901, dt.31.12.2007, issued by the Government providing for the regularization of unauthorized constructions, the penthouse on the 4th floor of the subject premises had already been regularized vide proceedings, dt.31.12.2010, even prior to the petitioner submitting his representation. So also, the applications relating to the regularization of the construction of the other flats on the 3rd floor are still pending consideration under the Building Regularization Scheme.

27. Furthermore, by virtue of the disposal of the main writ petition with certain observations, the present Contempt Case is not liable to be proceeded any further.

28. In these circumstances, it cannot be said that the respondents have deliberately or willfully disobeyed the interim orders passed by this Court, and as such, no contempt is made out against the respondents.

29. In that view of the matter, the Contempt Case No.1723 of 2015 is closed. No costs.

Consequently, miscellaneous petitions, if any, pending shall stand closed.