THE HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.1470 of 2015
14-08-2015
Shri Ratan Kumar, s/o. Raghunath, Aged 48 years, Occu: Business, r/o. H.No.15-
1-91/2, Old Feelkhana, Hyderabad and two others. Petitioners
Greater Hyderabad Municipal Corporation, rep.by its Commissioner, Tank Bund
Road, Hyderabad and others. . Respondents
Counsel for the petitioners : Sri V.M.M.Chary, counsel for
petitioners in WP Nos.1470 and
16690 of 2015;
Sri A.K.Kishore Reddy counsel for
Petitioners in WP No.4306 of 2015
Counsel for the:Sri N.Ashok Kumar, standing Respondents:counsel for R1 to R3,
Sri. A.K.Kishore Reddy counsel
for R4 to R6 in W.P.No.1470 of
2015;
Sri N.Ashok Kumar, standing counsel
for R1 and R2,
Sri V.M.M.Chary, counsel for R3 & R4
in W.P.No.4306 of 2015;
Sri N.Ashok Kumar, standing
counsel
for R1 to R3 in WP No.16690 of
2015.
<Gist :
>Head Note:
? Cases referred:
1.(1981) 3 sCC 317
2.2004 (9) SCC 204
3.AIR 2010 SC 3817
HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.1470, 4306 and 16690 of 2015
COMMON ORDER:
These three writ petitions concern subject matter of adjacent
properties belonging to rival groups. Both of them allege
unauthorized illegal constructions made by the other party in
violation of mandate of Hyderabad Municipal Corporation Act,
1955 (for short, Act, 1955), Rules made there under and the
building permissions granted in their favour. Having regard to the
same, all these three writ petitions are disposed of by this common
order.
2. Heard learned counsel for the petitioners and learned
standing counsel for GHMC.
3. W.P.No.1470 of 2015 is filed alleging inaction of the
respondents 1 to 3 in not discharging their statutory duties by
initiating action for removal of illegal and unauthorized
constructions undertaken by the respondents 4 to 6 in house
bearing No.15-1-91/7, Old Feelkhana, Hyderabad in violation of
sanctioned plan dated 12.02.2013, without leaving the setbacks
and encroaching the petitioners property.
4. As a counterblast, W.P.No.4306 of 2015 is filed by the
building owners bearing Municipal No.15-1-91/7, alleging inaction
on the complaint given by the petitioners on 27.01.2015 regarding
removal of unauthorized construction raised by the respondents 3
and 4 therein by deviating from the sanctioned plan accorded to
them in the year 2002 and seeking consequential direction to
respondents 1 and 2 therein to take necessary action upon the
complaint given by the petitioners.
5. As a consequence to the complaint given by the petitioners
in W.P.No.4306 of 2015, notices under Section 452(1) and 461 (1)
of the Act were issued on 10.03.2015 to the petitioners in
W.P.No.1470 of 2015 followed by notice under Section 452 (2) of
the Act on 06.06.2015 and notice under Section 636 of the Act
dated 08.06.2015. Challenging these notices, petitioners in
W.P.No.1470 of 2015 have instituted W.P.No.16690 of 2015.
6. For convenience sake, parties are referred to as arrayed in
W.P.No.1470 of 2015.
7. According to the petitioners, petitioners and three brothers
of first petitioner are the owners of property bearing house no.15-
15-1-91/2, Old Feelkhana, Hyderabad. In order to accommodate
the growing family needs, owners of the building have applied for
building permission for construction of ground floor plus two
upper floors and permission was granted by the municipal
corporation on 17.08.2002. However, in deviation of the said plan,
petitioners have constructed Cellar plus two additional upper
floors and pent house than the original permission granted to
them. However, Government formulated a scheme of
regularization and penalization of unauthorized constructions
made in the urban areas and notified Rules in G.O.Ms.No.901
dated 31.12.2007. Taking advantage of the said Rules, petitioners
have applied for regularization of unauthorized constructions made
by them on 28.04.2005 by enclosing relevant documents.
Petitioners have submitted four separate applications and paid
Rs.80,000/- as initial amount payable in accordance with the
Rules. According to the petitioners, said building regularization
application is pending consideration by the respondent
corporation. While so, petitioners having noticed that their
neighbours of property bearing house No.15-1-91/7 in deviation of
the sanctioned plan, undertaking construction of cellar, ground
floor and five upper floors and as a commercial building, that
they have not observed setbacks in all four sides and encroached
into the land of petitioners, complained to the respondent
corporation. Since there was no action on the part of the
respondent corporation and the construction is proceeding at brisk
pace, petitioners filed W.P.No.1470 of 2015. This Court directed
the officials of the respondent corporation, by order dated
29.01.2015, to ensure that no constructions are made by the party
respondents in deviation of the permissions granted to them.
8. As a counterblast, the said neighbours (party respondents)
complained against the petitioners alleging that illegal
constructions were made by the petitioners. They have also
instituted W.P.No.4306 of 2015 alleging illegal constructions made
by the petitioners. Notice before admission was ordered in the
said writ petition.
9. On 10.03.2015 respondent corporation issued notice under
Sections 452(1) and 461(1) alleging that illegal constructions are
made by the petitioners in deviation of the sanctioned plan and
that the said constructions are in violation of Rules notified vide
G.O.Ms.No.168 dated 07.04.2012. Petitioners claim to have
submitted their representation on 13.05.2015 alleging that they
have submitted four building regularization applications in
accordance with the Rules notified vide G.O.Ms.No.901 dated
31.12.2007 and the said applications were not disposed of and,
therefore, the question of taking penal action on the allegation of
unauthorized constructions made is not valid. It is also contended
that there cannot be a common notice under Sections 452 and 461
of the Act and the same is illegal. On 06.06.2015, notice under
Section 452(2) of the Act, 1955 was issued. Petitioners were told
that their building regularization application was rejected due to
non-submission of shortfalls as notified on 12.11.2008 and,
therefore, petitioners were informed that further action would be
taken as per Section 636 of the Act. Accordingly, notice under
Section 636 was issued on 08.06.2015 directing the petitioners to
remove the unauthorized constructions made. Challenging the
said notice, W.P.No.16690 of 2015 is filed.
10. The party-respondents were served notice dated 28.12.2013
by the respondent corporation alleging that party respondents have
constructed cellar against sanctioned ground and first floor for
residential purpose and the aforesaid constructions are in violation
of Rules notified under G.O.Ms.No.168 dated 07.04.2012. They
were served further notice dated 18.12.2014 under Section 452(1)
and 461(1). In the notice, it is alleged that party respondents have
constructed cellar, four upper floors and pent house against
sanctioned ground and first floor for residential purpose, that they
have not maintained all round setbacks and that four floors are in
violation of Rules notified vide G.O.Ms.No.168 dated 07.04.2014.
Alleging that illegal interference and obstruction to undertake
construction of the building as proposed, party respondents
instituted O.S.No.2326 of 2014 on the file of VI Junior Civil Judge,
City Civil Courts at Hyderabad praying to grant permanent
injunction restraining the respondents corporation and its
employees etc., from interfering with the construction work or
demolishing any part of the suit properties either in whole or in
part. By order dated 29.12.2014 made in I.A.No.827 of 2015 in
the above suit, learned VI Junior Civil Judge, directed the parties
to maintain status quo until filing of the counter by the respondent
corporation. As informed by the learned counsel for party
respondents and learned standing counsel for respondent
corporation, the said suit is pending.
11. Learned counsel for petitioners contends that the petitioners
were granted building permission as early as on 17.08.2002.
Petitioners have constructed two upper floors and pent house in
addition to the permission granted to them, but on account of
scheme formulated by the Government in the year 2007, they have
applied for regularization of unauthorized constructions made in
deviation of the sanctioned plan strictly in accordance with rules
notified in G.O.Ms.No.901 dated 31.12.2007 by enclosing the
relevant documents as well as requisite fee. Said building
application is still pending and without disposing of the building
regularization application, no coercive action can be taken against
the petitioners. Learned counsel strenuously denies the stand of
the respondent corporation that their building regularization
application was rejected. He submits that copy of notice dated
12.11.2008 was not served on the petitioners. He submits that
sending the notices by way of certificate of posting is not valid in
law and no credence can be given to such procedure and it is
deemed that no notice was served on the petitioners. Unless
appropriate notice is served on the effected party, no coercive
action can be taken. In support of his contention that sending
notice by way of certificate of posting is not valid, learned counsel
placed reliance on the decision of the Supreme Court in the cases
of Msr.L.M.S. Ummu Saleema vs. Shri B.B.Gujaral and another
and M.S.Madhusoodhanan and another v. Kerala Kaumudi (P)
Ltd., and others . He, therefore, submitted that the regularisation
of building application is deemed to be pending and unless and
until such application is rejected, no further coercive steps can be
taken and, therefore, the impugned notices are null and void and
liable to be set aside.
12. He strenuously denies the stand of the respondent
corporation that building regularization scheme has come to an
end on 31.05.2013 and that since regularization was not granted
before that date, it is deemed that regularization application is
rejected. He further submits that there is no deeming clause.
Several regularization applications are still pending with the
corporation and even now respondent corporation is granting
regularization of illegal and unauthorised constructions made.
13. He further submits that if only the intimation was served on
them, they would have availed remedy of appeal as provided under
Rule 11 of the Rules notified in G.O.Ms.No.901. Since the Rules
vests substantive right in the petitioners to avail remedy of appeal
against any decision of the original authority on the issue of
regularization of unauthorized construction claim, no such right
can be denied on mere assumption that notices sent by certificate
of posting were deemed to have been served long ago.
14. Learned counsel appearing for party respondents submits
that the petitioners are only unnecessarily harassing and
humiliating the party respondents. He further submits that party
respondents have not encroached into the property of the
petitioners and only to harass and humiliate them, false complaint
is generated against party respondents and under the guise of the
orders of this Court, petitioners are interfering with the day to day
construction activity even though party respondents are making
constructions within the building already constructed.
15. Learned counsel for the party respondents opposes the claim
of the petitioners that their building application is pending and,
therefore, no coercive steps can be taken against them. He
submits that section 27 of the General Clauses Act clearly infers
presumption of service of notice once it is sent and therefore as
municipal corporation has sent the notices to the petitioners by
endorsement dated 12.11.2008 that notice is deemed to have
served on them and therefore the action taken by the respondent
corporation which resulted in issuing impugned notices which are
challenged in W.P.No.16690 of 2015, which action initiated at the
instance of the party respondents is legal and valid and since the
petitioners have made illegal constructions in deviation of the
sanctioned plan, such constructions have to be removed.
16. Learned counsel further submitted that aggrieved by the
notices issued against party respondents, they have moved
VI Junior Civil Judge Court in O.S.No.2326 of 2014 and the
learned Judge granted order of status quo and, therefore, no
coercive action can be taken against the party respondents during
the pendency of the said suit and, therefore, W.P.No.1470 of 2015
filed by the petitioners is not maintainable and is liable to be
dismissed.
17. Learned standing counsel submitted that petitioners as well
as party respondents have admittedly made illegal constructions in
deviation of the respective sanctioned plans. Both have made
complaints against each other alleging such illegal constructions.
On due verification of the respective complaints, appropriate action
was initiated against the respective parties. Insofar as petitioners
are concerned, Section 636 notice was issued on 08.06.2015 for
removal of unauthorized constructions made, but on account of
orders passed by this Court, during pendency of these writ
petitions, no further action can be taken. He further submits that
action was properly initiated by the respondent corporation to
remove unauthorized and illegal constructions made.
18. He contended that the only defence put up by the petitioners
is that they have submitted applications for building regularization
in the year 2008. But, as seen from the record of the municipal
corporation, the said applications were scrutinized and petitioners
were directed to comply with the objections noticed therein. By way
of endorsement dated 12.11.2008, the same was communicated to
them. Since petitioners have not submitted the documents as
required under the said endorsement, it is deemed that no such
building permission is pending and, therefore, coercive action is
taken against the petitioners is legal and valid. He further
submitted that according to the records of the municipal
corporation, the said endorsement was sent by way of certificate of
posting and the certificate of posting is obtained from the postal
department, which is filed before this Court, which shows that the
said endorsements were sent to the petitioners and it is deemed
that it is served on them. If the petitioners are really sincere
about pursuing the building regularization application, they ought
to have pursued the matter further at least thereafter. But, until
the notices were issued by the respondent corporation, which are
impugned in the writ petition No.16690 of 2015, they kept quiet.
It is significant that the petitioners are aware of the rejection of the
endorsement dated 12.11.2008 and kept quiet without submitting
the relevant documents. In support of his contention that notice
sent to the petitioners by way of posting is valid, he placed reliance
on the decision of the Supreme Court in Greater Mohali Area
Development Authorities and Others vs. Manju Jain and
Others .
19. Learned standing counsel further submitted that though
notices were issued to party respondents against illegal
constructions made, no further action could be taken in view of the
pendency of O.S.No.2326 of 2014 on the file of VI Junior Civil
Judge and the order of status quo granted by the said court on
29.12.2014. The municipal corporation is pursuing the matter
before the said Court.
20. Insofar as taking penal action against party respondents is
concerned, as admitted by the learned standing counsel, the party
respondents have filed O.S.No.2326 of 2014, which is pending on
the file of VI Junior Civil Judge, City Civil Courts at Hyderabad
and in I.A.No.827 of 2015, learned Junior Civil Judge passed
orders on 29.12.2014 directing the parties to maintain status quo
and the said order is in force till date. In view of the fact that the
matter is ceased by VI Junior Civil Judge, no direction can be
given for removal of alleged illegal and unauthorized construction
undertaken by the respondents 4 to 6 as alleged in W.P.No.1470 of
2015 at this stage. Thus, the Writ Petition No.1470 of 2015 is
liable to be dismissed and is accordingly dismissed.
21. Admittedly, petitioners have made constructions in deviation
of the sanctioned plan and, therefore, there is no illegality in taking
action for removal of such constructions. However, taking
advantage of the regulation/penalisation scheme formulated by the
State, petitioners have applied for regularization of illegal
construction made by them by paying appropriate fee. If
applications for regularization of illegal construction are pending,
no coercive action can be taken, more particularly, in view of the
provision contained in Sections 455-A and 455-AA of the Act and
Rules made there under.
22. In the facts of this case, therefore, the question for
consideration is whether the petitioners applications for
regularization were rejected as claimed by the respondent
municipal corporation ?
23. Learned standing counsel placed reliance on the proceedings
dated 12.11.2008, where under intimation notices were issued to
the individual petitioners informing them certain deficiencies in the
application filed for regularization, directing them to comply with
the said objections. In the said notices, they were informed that
applications cannot be taken up for scrutiny unless information as
indicted is submitted by the applicants. Learned standing counsel
stated that these notices were sent to the petitioners under
certificate of posting. The copies of notices along with xerox copies
of proof of sending notices by certificate of posting are furnished to
the counsel for the petitioners and circulated to this Court. The
notices disclose the addressees and sending of the notices by
certificate of posting. On the above submission, there was
extensive debate.
24. The plea taken by the learned counsel for the petitioners is
sending the notices by certificate of posting does not amount to
valid service of notice and, therefore, it is deemed that no such
notice is sent. In support of the said contention, learned counsel
placed reliance of two decisions referred to above.
25. In Mst. L.M.S. Ummu Saleema (supra 1), reliance was
placed in defence of the stand by the detenu that he retracted the
earlier statement long before the order of detention was made and
the fact of such retraction was not considered by the detention
authority before making the order of detention. The said
contention was denied. The detenu contended that after his
release on bail, he addressed a letter to the Assistant Collector of
Customs, Cuddalore, retracting his former statement and same
was sent under certificate of posting. There was denial of receipt
of such statement by Customs Authorities. Supreme Court
rejected the said contention. Supreme Court held as under:
6. The certificate of posting might lead to a presumption
that a letter addressed to the Assistant Collector of Customs was
posted on August 14, 1980 and in due course reached the
addressee. But, that is only a permissible and not an inevitabe
presumption. Neither Section 16 nor section 114 of the Evidence
Act compels the court to draw a presumption. The presumption
may or may not be drawn. On the facts and circumstances of a
case, the court may refuse to draw the presumption. On the
other hand the presumption may be drawn initially but on a
consideration of the evidence the court may hold the presumption
rebutted and may arrive at the conclusion that no letter was
received by the addressee or that no letter was ever despatched as
claimed. After all, there have been cases in the past, though
rate, where postal certificates and postal seals have been
manufactured.
26. In M.S.Madhusoodhanan (supra 2), similar issue has arisen
for consideration. Supreme Court rejected the stand of sending
notice by way of certificate of posting as valid notice. Matter arisen
under the provisions of the Companies Act. Supreme Court held
as under:
124. In the present case, the certificate of posting is suspect.
Assuming that such suspicion is unfounded, it does not in any
event amount to conclusive proof of service of the notice on
Madhusoodhanan or on any of the other addressees mentioned in
the certificate as held by the Division Bench. Except for
producing the dispatch register and the certificate of posting, no
one on behalf of the respondents came forward to vouch that they
had personally sent the notice through the post to
Madhusoodhanan and his group. Madhusoodhanan had written
two letters contemporaneously dated 4-8-1986 and 8-8-1986
(Ext. P-24 and Ext. P-35) to Srinivasan, the General Manager of
Kerala Kaumudi and to Madhavi complaining that he was not
receiving any mail at all. These letters were admittedly received
but not replied to by the respondents. It is also apparent from a
perusal of those letters that Madhusoodhanan had no knowledge
whatsoever of the notice for application for allotment of additional
shares. Had there been such notice it is improbable that
Madhusoodhanan who was fighting for retaining his control over
Kerala Kaumudi, would have risked losing such control by
abstaining from applying for the additional shares.
125. In the circumstances, we hold that Madhusoodhanan
and his group were not served with the notice dated 1-8-1986. It
is, therefore, unnecessary to decide whether the period prescribed
in the notice to apply for the shares was too short or contrary to
the Articles of Association of Kerala Kaumudi.
27. Provision in Section 27 of General Clauses Act read with
Section 114 of Indian Evidence Act, gives rise to presumption of
service of notice if it is sent to correct address by registered post.
As seen from the provision in Section 27 of General Clauses Act to
draw presumption of service of notice, notice must be sent by
registered post and to the correct address. In this case, the
primary requirement to attract provision in Section 27 of General
Clauses Act is not fulfilled. Admittedly, in this case, notice was
sent by certificate of posting.
28. Learned standing counsel contended that even assuming
that the notice sent by way of certificate of posting was not
acknowledged by the petitioners, the fact that petitioners kept
quiet for so long is deemed that petitioners were aware of rejection
of their application by the respondent corporation. Their silence
for such a long time, denies their claim that no such notice was
served on them and in the circumstances and by the conduct of
the petitioners, it is deemed that the petitioners were aware of the
decision of the corporation as communicated in the intimation
notice dated 12.11.2008. In support of the said contention,
learned standing counsel placed reliance on decision of the
Supreme Court in Greater Mohali Area Development Authority
(supra 3).
29. The decision relied upon by the learned standing counsel is
distinguishable on facts. As noticed from the judgment, respondent
therein applied for allotment of a flat under a hire purchase
scheme. After conducting draw of lots, respondent was informed
of allotment by letter dated 19.11.1997. The contents of the said
letter would disclose that she was required to pay the amount for
the flat. Letter of allotment was issued on 09.03.1999, which
indicated the price of flat to be paid and the mode of payment.
The letter describes six days time from the date of issue of the
allotment letter to make the payment. Respondent did not deposit
any amount. On enquiry made by the respondent, she was
informed that since amount was not paid within the time granted,
allotment made was cancelled. This was challenged before the
Appellate Authority as well as Revisional Authority and on
dismissal of revision, writ petition was filed. The W.P. was allowed
on the ground that allotment letter was not sent to the correct
person to the correct address by relying on the receipt and
despatch register of the authority. No opportunity of hearing was
afforded to the authority.
30. It appears from the reading of the judgment that the
allotment letter was sent by registered post. There was no reply of
acceptance of allotment nor amount was deposited. From the
record of Revisional Authority, Supreme Court also noticed that in
the ground raised before the Revisional Authority, the respondent
contended that due to some financial difficulties, she could not
arrange the huge sum of Rs.1,19,800/- to be paid within the
stipulated period, that she also approached banks for loan, but
loan was not granted and that since funds are now arranged, she
is willing and ready to make the payment. Having noted the above
grounds, Supreme Court held that the said statement clearly
implies that the respondent was aware of the allotment letter in the
time schedule prescribed and due to personal reasons only the
amount was not paid. Supreme Court also noticed that the
contention of non-receipt of letter of allotment was raised for the
first time before the High Court, whereas no such contention was
raised before the Appellate Authority and the Revisional Authority.
In the facts of said case, Supreme Court observed that in view of
the grounds raised before the Revisional Authority and that the
respondent kept quiet for more than four years and because of her
own faults, there was no concluded contract between the parties,
the question of handing over the possession of flat did not arise.
The Supreme Court held that respondent therein had knowledge of
the intimation given by appellant and subsequent conduct of the
respondent disentitles the respondent to the relief as granted by
the High Court.
31. In the two decisions relied by learned counsel for petitioner,
Supreme Court held that ordinarily certificate of posting cannot
amount to effective service of notice. However, in a given case, it is
permissible to the Court to presume service of notice sent by
certificate of posting by looking into surrounding facts. The learned
counsel for the respondents contended that the fact that
petitioners kept quit for long time would show that they were
aware of such intimation. Thus, learned standing counsel was
specifically asked as to whether any despatch register was
maintained by the respondent municipal corporation and whether
there was any proof of despatch of intimation notice dated
12.11.2008. Learned standing counsel, on instructions, informed
the Court that no despatch register is available and there is no
other proof of sending the notices. Except copy of intimation
letters and the stamp paper of certificate of posting, there is no
other material available on record to show that letters were
despatched and served.
32. As seen from the intimation letter, it is not a rejection. On
scrutiny of the application submitted for regularization, scrutiny
authority found certain documents were not filed and necessary fee
was not paid. Therefore, petitioners were asked to submit those
documents and necessary penal charges. If the same was received,
probably the petitioners could have submitted the documents
required by the respondent corporation or could have asked for
some other time or offered some explanation. They could have gone
in appeal also. Such a course cannot be ruled out. Thus, it cannot
be presumed, in the light of the contents of the said intimation
notice that the petitioners deliberately kept quiet.
33. As fairly submitted by the learned standing counsel, several
regularization applications submitted during the same period are
yet to be disposed of for various administrative reasons and the
scheme has not come to an end by 31.05.2013. Having regard to
the peculiar facts of this case, it cannot be presumed that
intimation notice dated 12.11.2008 were deemed to have been
served and that the petitioners were aware of such intimation,
more particularly, when the consequence of such presumption are
grave and result in demolishing the constructions so made. As no
intimation was given to petitioners on objections to process their
building regularization applications, it is deemed that such
applications submitted by the petitioners are pending. Since their
building regularization applications are pending, no coercive action
can be taken against them.
34. Having regard to the same the relief sought by the
respondents 4 to 6 in W.P.No.4306 of 2015 cannot be granted and
the same is liable to be dismissed.
35. W.P.No.16690 of 2015 is disposed of with the following
directions:
i) Since the petitioners are now in receipt of intimation
notice dated 12.11.2008, petitioners shall submit the required
documents and penalization charges as demanded in the said
intimation notice within a period of three weeks from this date and
on furnishing of such documents and payment of charges, if the
authorities are satisfied that the required documents are
furnished, the building regularization application of the petitioners
shall be considered and appropriate orders be passed as warranted
by law within further period of three weeks. Till the orders are
passed, as directed above, the notice issued under Section 636 of
the Act shall be kept in abeyance and no coercive action shall be
taken against petitioners.
36. Thus, W.P.Nos.1470 and 4306 of 2015 are dismissed and
W.P.No.16690 of 2015 is disposed of accordingly. There shall be
no order as to costs.
Miscellaneous petitions if any pending in these writ petitions
shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
Date : 14.08.2015
WRIT PETITION NOs.1470 of 2015
14-08-2015
Shri Ratan Kumar, s/o. Raghunath, Aged 48 years, Occu: Business, r/o. H.No.15-
1-91/2, Old Feelkhana, Hyderabad and two others. Petitioners
Greater Hyderabad Municipal Corporation, rep.by its Commissioner, Tank Bund
Road, Hyderabad and others. . Respondents
Counsel for the petitioners : Sri V.M.M.Chary, counsel for
petitioners in WP Nos.1470 and
16690 of 2015;
Sri A.K.Kishore Reddy counsel for
Petitioners in WP No.4306 of 2015
Counsel for the:Sri N.Ashok Kumar, standing Respondents:counsel for R1 to R3,
Sri. A.K.Kishore Reddy counsel
for R4 to R6 in W.P.No.1470 of
2015;
Sri N.Ashok Kumar, standing counsel
for R1 and R2,
Sri V.M.M.Chary, counsel for R3 & R4
in W.P.No.4306 of 2015;
Sri N.Ashok Kumar, standing
counsel
for R1 to R3 in WP No.16690 of
2015.
<Gist :
>Head Note:
? Cases referred:
1.(1981) 3 sCC 317
2.2004 (9) SCC 204
3.AIR 2010 SC 3817
HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.1470, 4306 and 16690 of 2015
COMMON ORDER:
These three writ petitions concern subject matter of adjacent
properties belonging to rival groups. Both of them allege
unauthorized illegal constructions made by the other party in
violation of mandate of Hyderabad Municipal Corporation Act,
1955 (for short, Act, 1955), Rules made there under and the
building permissions granted in their favour. Having regard to the
same, all these three writ petitions are disposed of by this common
order.
2. Heard learned counsel for the petitioners and learned
standing counsel for GHMC.
3. W.P.No.1470 of 2015 is filed alleging inaction of the
respondents 1 to 3 in not discharging their statutory duties by
initiating action for removal of illegal and unauthorized
constructions undertaken by the respondents 4 to 6 in house
bearing No.15-1-91/7, Old Feelkhana, Hyderabad in violation of
sanctioned plan dated 12.02.2013, without leaving the setbacks
and encroaching the petitioners property.
4. As a counterblast, W.P.No.4306 of 2015 is filed by the
building owners bearing Municipal No.15-1-91/7, alleging inaction
on the complaint given by the petitioners on 27.01.2015 regarding
removal of unauthorized construction raised by the respondents 3
and 4 therein by deviating from the sanctioned plan accorded to
them in the year 2002 and seeking consequential direction to
respondents 1 and 2 therein to take necessary action upon the
complaint given by the petitioners.
5. As a consequence to the complaint given by the petitioners
in W.P.No.4306 of 2015, notices under Section 452(1) and 461 (1)
of the Act were issued on 10.03.2015 to the petitioners in
W.P.No.1470 of 2015 followed by notice under Section 452 (2) of
the Act on 06.06.2015 and notice under Section 636 of the Act
dated 08.06.2015. Challenging these notices, petitioners in
W.P.No.1470 of 2015 have instituted W.P.No.16690 of 2015.
6. For convenience sake, parties are referred to as arrayed in
W.P.No.1470 of 2015.
7. According to the petitioners, petitioners and three brothers
of first petitioner are the owners of property bearing house no.15-
15-1-91/2, Old Feelkhana, Hyderabad. In order to accommodate
the growing family needs, owners of the building have applied for
building permission for construction of ground floor plus two
upper floors and permission was granted by the municipal
corporation on 17.08.2002. However, in deviation of the said plan,
petitioners have constructed Cellar plus two additional upper
floors and pent house than the original permission granted to
them. However, Government formulated a scheme of
regularization and penalization of unauthorized constructions
made in the urban areas and notified Rules in G.O.Ms.No.901
dated 31.12.2007. Taking advantage of the said Rules, petitioners
have applied for regularization of unauthorized constructions made
by them on 28.04.2005 by enclosing relevant documents.
Petitioners have submitted four separate applications and paid
Rs.80,000/- as initial amount payable in accordance with the
Rules. According to the petitioners, said building regularization
application is pending consideration by the respondent
corporation. While so, petitioners having noticed that their
neighbours of property bearing house No.15-1-91/7 in deviation of
the sanctioned plan, undertaking construction of cellar, ground
floor and five upper floors and as a commercial building, that
they have not observed setbacks in all four sides and encroached
into the land of petitioners, complained to the respondent
corporation. Since there was no action on the part of the
respondent corporation and the construction is proceeding at brisk
pace, petitioners filed W.P.No.1470 of 2015. This Court directed
the officials of the respondent corporation, by order dated
29.01.2015, to ensure that no constructions are made by the party
respondents in deviation of the permissions granted to them.
8. As a counterblast, the said neighbours (party respondents)
complained against the petitioners alleging that illegal
constructions were made by the petitioners. They have also
instituted W.P.No.4306 of 2015 alleging illegal constructions made
by the petitioners. Notice before admission was ordered in the
said writ petition.
9. On 10.03.2015 respondent corporation issued notice under
Sections 452(1) and 461(1) alleging that illegal constructions are
made by the petitioners in deviation of the sanctioned plan and
that the said constructions are in violation of Rules notified vide
G.O.Ms.No.168 dated 07.04.2012. Petitioners claim to have
submitted their representation on 13.05.2015 alleging that they
have submitted four building regularization applications in
accordance with the Rules notified vide G.O.Ms.No.901 dated
31.12.2007 and the said applications were not disposed of and,
therefore, the question of taking penal action on the allegation of
unauthorized constructions made is not valid. It is also contended
that there cannot be a common notice under Sections 452 and 461
of the Act and the same is illegal. On 06.06.2015, notice under
Section 452(2) of the Act, 1955 was issued. Petitioners were told
that their building regularization application was rejected due to
non-submission of shortfalls as notified on 12.11.2008 and,
therefore, petitioners were informed that further action would be
taken as per Section 636 of the Act. Accordingly, notice under
Section 636 was issued on 08.06.2015 directing the petitioners to
remove the unauthorized constructions made. Challenging the
said notice, W.P.No.16690 of 2015 is filed.
10. The party-respondents were served notice dated 28.12.2013
by the respondent corporation alleging that party respondents have
constructed cellar against sanctioned ground and first floor for
residential purpose and the aforesaid constructions are in violation
of Rules notified under G.O.Ms.No.168 dated 07.04.2012. They
were served further notice dated 18.12.2014 under Section 452(1)
and 461(1). In the notice, it is alleged that party respondents have
constructed cellar, four upper floors and pent house against
sanctioned ground and first floor for residential purpose, that they
have not maintained all round setbacks and that four floors are in
violation of Rules notified vide G.O.Ms.No.168 dated 07.04.2014.
Alleging that illegal interference and obstruction to undertake
construction of the building as proposed, party respondents
instituted O.S.No.2326 of 2014 on the file of VI Junior Civil Judge,
City Civil Courts at Hyderabad praying to grant permanent
injunction restraining the respondents corporation and its
employees etc., from interfering with the construction work or
demolishing any part of the suit properties either in whole or in
part. By order dated 29.12.2014 made in I.A.No.827 of 2015 in
the above suit, learned VI Junior Civil Judge, directed the parties
to maintain status quo until filing of the counter by the respondent
corporation. As informed by the learned counsel for party
respondents and learned standing counsel for respondent
corporation, the said suit is pending.
11. Learned counsel for petitioners contends that the petitioners
were granted building permission as early as on 17.08.2002.
Petitioners have constructed two upper floors and pent house in
addition to the permission granted to them, but on account of
scheme formulated by the Government in the year 2007, they have
applied for regularization of unauthorized constructions made in
deviation of the sanctioned plan strictly in accordance with rules
notified in G.O.Ms.No.901 dated 31.12.2007 by enclosing the
relevant documents as well as requisite fee. Said building
application is still pending and without disposing of the building
regularization application, no coercive action can be taken against
the petitioners. Learned counsel strenuously denies the stand of
the respondent corporation that their building regularization
application was rejected. He submits that copy of notice dated
12.11.2008 was not served on the petitioners. He submits that
sending the notices by way of certificate of posting is not valid in
law and no credence can be given to such procedure and it is
deemed that no notice was served on the petitioners. Unless
appropriate notice is served on the effected party, no coercive
action can be taken. In support of his contention that sending
notice by way of certificate of posting is not valid, learned counsel
placed reliance on the decision of the Supreme Court in the cases
of Msr.L.M.S. Ummu Saleema vs. Shri B.B.Gujaral and another
and M.S.Madhusoodhanan and another v. Kerala Kaumudi (P)
Ltd., and others . He, therefore, submitted that the regularisation
of building application is deemed to be pending and unless and
until such application is rejected, no further coercive steps can be
taken and, therefore, the impugned notices are null and void and
liable to be set aside.
12. He strenuously denies the stand of the respondent
corporation that building regularization scheme has come to an
end on 31.05.2013 and that since regularization was not granted
before that date, it is deemed that regularization application is
rejected. He further submits that there is no deeming clause.
Several regularization applications are still pending with the
corporation and even now respondent corporation is granting
regularization of illegal and unauthorised constructions made.
13. He further submits that if only the intimation was served on
them, they would have availed remedy of appeal as provided under
Rule 11 of the Rules notified in G.O.Ms.No.901. Since the Rules
vests substantive right in the petitioners to avail remedy of appeal
against any decision of the original authority on the issue of
regularization of unauthorized construction claim, no such right
can be denied on mere assumption that notices sent by certificate
of posting were deemed to have been served long ago.
14. Learned counsel appearing for party respondents submits
that the petitioners are only unnecessarily harassing and
humiliating the party respondents. He further submits that party
respondents have not encroached into the property of the
petitioners and only to harass and humiliate them, false complaint
is generated against party respondents and under the guise of the
orders of this Court, petitioners are interfering with the day to day
construction activity even though party respondents are making
constructions within the building already constructed.
15. Learned counsel for the party respondents opposes the claim
of the petitioners that their building application is pending and,
therefore, no coercive steps can be taken against them. He
submits that section 27 of the General Clauses Act clearly infers
presumption of service of notice once it is sent and therefore as
municipal corporation has sent the notices to the petitioners by
endorsement dated 12.11.2008 that notice is deemed to have
served on them and therefore the action taken by the respondent
corporation which resulted in issuing impugned notices which are
challenged in W.P.No.16690 of 2015, which action initiated at the
instance of the party respondents is legal and valid and since the
petitioners have made illegal constructions in deviation of the
sanctioned plan, such constructions have to be removed.
16. Learned counsel further submitted that aggrieved by the
notices issued against party respondents, they have moved
VI Junior Civil Judge Court in O.S.No.2326 of 2014 and the
learned Judge granted order of status quo and, therefore, no
coercive action can be taken against the party respondents during
the pendency of the said suit and, therefore, W.P.No.1470 of 2015
filed by the petitioners is not maintainable and is liable to be
dismissed.
17. Learned standing counsel submitted that petitioners as well
as party respondents have admittedly made illegal constructions in
deviation of the respective sanctioned plans. Both have made
complaints against each other alleging such illegal constructions.
On due verification of the respective complaints, appropriate action
was initiated against the respective parties. Insofar as petitioners
are concerned, Section 636 notice was issued on 08.06.2015 for
removal of unauthorized constructions made, but on account of
orders passed by this Court, during pendency of these writ
petitions, no further action can be taken. He further submits that
action was properly initiated by the respondent corporation to
remove unauthorized and illegal constructions made.
18. He contended that the only defence put up by the petitioners
is that they have submitted applications for building regularization
in the year 2008. But, as seen from the record of the municipal
corporation, the said applications were scrutinized and petitioners
were directed to comply with the objections noticed therein. By way
of endorsement dated 12.11.2008, the same was communicated to
them. Since petitioners have not submitted the documents as
required under the said endorsement, it is deemed that no such
building permission is pending and, therefore, coercive action is
taken against the petitioners is legal and valid. He further
submitted that according to the records of the municipal
corporation, the said endorsement was sent by way of certificate of
posting and the certificate of posting is obtained from the postal
department, which is filed before this Court, which shows that the
said endorsements were sent to the petitioners and it is deemed
that it is served on them. If the petitioners are really sincere
about pursuing the building regularization application, they ought
to have pursued the matter further at least thereafter. But, until
the notices were issued by the respondent corporation, which are
impugned in the writ petition No.16690 of 2015, they kept quiet.
It is significant that the petitioners are aware of the rejection of the
endorsement dated 12.11.2008 and kept quiet without submitting
the relevant documents. In support of his contention that notice
sent to the petitioners by way of posting is valid, he placed reliance
on the decision of the Supreme Court in Greater Mohali Area
Development Authorities and Others vs. Manju Jain and
Others .
19. Learned standing counsel further submitted that though
notices were issued to party respondents against illegal
constructions made, no further action could be taken in view of the
pendency of O.S.No.2326 of 2014 on the file of VI Junior Civil
Judge and the order of status quo granted by the said court on
29.12.2014. The municipal corporation is pursuing the matter
before the said Court.
20. Insofar as taking penal action against party respondents is
concerned, as admitted by the learned standing counsel, the party
respondents have filed O.S.No.2326 of 2014, which is pending on
the file of VI Junior Civil Judge, City Civil Courts at Hyderabad
and in I.A.No.827 of 2015, learned Junior Civil Judge passed
orders on 29.12.2014 directing the parties to maintain status quo
and the said order is in force till date. In view of the fact that the
matter is ceased by VI Junior Civil Judge, no direction can be
given for removal of alleged illegal and unauthorized construction
undertaken by the respondents 4 to 6 as alleged in W.P.No.1470 of
2015 at this stage. Thus, the Writ Petition No.1470 of 2015 is
liable to be dismissed and is accordingly dismissed.
21. Admittedly, petitioners have made constructions in deviation
of the sanctioned plan and, therefore, there is no illegality in taking
action for removal of such constructions. However, taking
advantage of the regulation/penalisation scheme formulated by the
State, petitioners have applied for regularization of illegal
construction made by them by paying appropriate fee. If
applications for regularization of illegal construction are pending,
no coercive action can be taken, more particularly, in view of the
provision contained in Sections 455-A and 455-AA of the Act and
Rules made there under.
22. In the facts of this case, therefore, the question for
consideration is whether the petitioners applications for
regularization were rejected as claimed by the respondent
municipal corporation ?
23. Learned standing counsel placed reliance on the proceedings
dated 12.11.2008, where under intimation notices were issued to
the individual petitioners informing them certain deficiencies in the
application filed for regularization, directing them to comply with
the said objections. In the said notices, they were informed that
applications cannot be taken up for scrutiny unless information as
indicted is submitted by the applicants. Learned standing counsel
stated that these notices were sent to the petitioners under
certificate of posting. The copies of notices along with xerox copies
of proof of sending notices by certificate of posting are furnished to
the counsel for the petitioners and circulated to this Court. The
notices disclose the addressees and sending of the notices by
certificate of posting. On the above submission, there was
extensive debate.
24. The plea taken by the learned counsel for the petitioners is
sending the notices by certificate of posting does not amount to
valid service of notice and, therefore, it is deemed that no such
notice is sent. In support of the said contention, learned counsel
placed reliance of two decisions referred to above.
25. In Mst. L.M.S. Ummu Saleema (supra 1), reliance was
placed in defence of the stand by the detenu that he retracted the
earlier statement long before the order of detention was made and
the fact of such retraction was not considered by the detention
authority before making the order of detention. The said
contention was denied. The detenu contended that after his
release on bail, he addressed a letter to the Assistant Collector of
Customs, Cuddalore, retracting his former statement and same
was sent under certificate of posting. There was denial of receipt
of such statement by Customs Authorities. Supreme Court
rejected the said contention. Supreme Court held as under:
6. The certificate of posting might lead to a presumption
that a letter addressed to the Assistant Collector of Customs was
posted on August 14, 1980 and in due course reached the
addressee. But, that is only a permissible and not an inevitabe
presumption. Neither Section 16 nor section 114 of the Evidence
Act compels the court to draw a presumption. The presumption
may or may not be drawn. On the facts and circumstances of a
case, the court may refuse to draw the presumption. On the
other hand the presumption may be drawn initially but on a
consideration of the evidence the court may hold the presumption
rebutted and may arrive at the conclusion that no letter was
received by the addressee or that no letter was ever despatched as
claimed. After all, there have been cases in the past, though
rate, where postal certificates and postal seals have been
manufactured.
26. In M.S.Madhusoodhanan (supra 2), similar issue has arisen
for consideration. Supreme Court rejected the stand of sending
notice by way of certificate of posting as valid notice. Matter arisen
under the provisions of the Companies Act. Supreme Court held
as under:
124. In the present case, the certificate of posting is suspect.
Assuming that such suspicion is unfounded, it does not in any
event amount to conclusive proof of service of the notice on
Madhusoodhanan or on any of the other addressees mentioned in
the certificate as held by the Division Bench. Except for
producing the dispatch register and the certificate of posting, no
one on behalf of the respondents came forward to vouch that they
had personally sent the notice through the post to
Madhusoodhanan and his group. Madhusoodhanan had written
two letters contemporaneously dated 4-8-1986 and 8-8-1986
(Ext. P-24 and Ext. P-35) to Srinivasan, the General Manager of
Kerala Kaumudi and to Madhavi complaining that he was not
receiving any mail at all. These letters were admittedly received
but not replied to by the respondents. It is also apparent from a
perusal of those letters that Madhusoodhanan had no knowledge
whatsoever of the notice for application for allotment of additional
shares. Had there been such notice it is improbable that
Madhusoodhanan who was fighting for retaining his control over
Kerala Kaumudi, would have risked losing such control by
abstaining from applying for the additional shares.
125. In the circumstances, we hold that Madhusoodhanan
and his group were not served with the notice dated 1-8-1986. It
is, therefore, unnecessary to decide whether the period prescribed
in the notice to apply for the shares was too short or contrary to
the Articles of Association of Kerala Kaumudi.
27. Provision in Section 27 of General Clauses Act read with
Section 114 of Indian Evidence Act, gives rise to presumption of
service of notice if it is sent to correct address by registered post.
As seen from the provision in Section 27 of General Clauses Act to
draw presumption of service of notice, notice must be sent by
registered post and to the correct address. In this case, the
primary requirement to attract provision in Section 27 of General
Clauses Act is not fulfilled. Admittedly, in this case, notice was
sent by certificate of posting.
28. Learned standing counsel contended that even assuming
that the notice sent by way of certificate of posting was not
acknowledged by the petitioners, the fact that petitioners kept
quiet for so long is deemed that petitioners were aware of rejection
of their application by the respondent corporation. Their silence
for such a long time, denies their claim that no such notice was
served on them and in the circumstances and by the conduct of
the petitioners, it is deemed that the petitioners were aware of the
decision of the corporation as communicated in the intimation
notice dated 12.11.2008. In support of the said contention,
learned standing counsel placed reliance on decision of the
Supreme Court in Greater Mohali Area Development Authority
(supra 3).
29. The decision relied upon by the learned standing counsel is
distinguishable on facts. As noticed from the judgment, respondent
therein applied for allotment of a flat under a hire purchase
scheme. After conducting draw of lots, respondent was informed
of allotment by letter dated 19.11.1997. The contents of the said
letter would disclose that she was required to pay the amount for
the flat. Letter of allotment was issued on 09.03.1999, which
indicated the price of flat to be paid and the mode of payment.
The letter describes six days time from the date of issue of the
allotment letter to make the payment. Respondent did not deposit
any amount. On enquiry made by the respondent, she was
informed that since amount was not paid within the time granted,
allotment made was cancelled. This was challenged before the
Appellate Authority as well as Revisional Authority and on
dismissal of revision, writ petition was filed. The W.P. was allowed
on the ground that allotment letter was not sent to the correct
person to the correct address by relying on the receipt and
despatch register of the authority. No opportunity of hearing was
afforded to the authority.
30. It appears from the reading of the judgment that the
allotment letter was sent by registered post. There was no reply of
acceptance of allotment nor amount was deposited. From the
record of Revisional Authority, Supreme Court also noticed that in
the ground raised before the Revisional Authority, the respondent
contended that due to some financial difficulties, she could not
arrange the huge sum of Rs.1,19,800/- to be paid within the
stipulated period, that she also approached banks for loan, but
loan was not granted and that since funds are now arranged, she
is willing and ready to make the payment. Having noted the above
grounds, Supreme Court held that the said statement clearly
implies that the respondent was aware of the allotment letter in the
time schedule prescribed and due to personal reasons only the
amount was not paid. Supreme Court also noticed that the
contention of non-receipt of letter of allotment was raised for the
first time before the High Court, whereas no such contention was
raised before the Appellate Authority and the Revisional Authority.
In the facts of said case, Supreme Court observed that in view of
the grounds raised before the Revisional Authority and that the
respondent kept quiet for more than four years and because of her
own faults, there was no concluded contract between the parties,
the question of handing over the possession of flat did not arise.
The Supreme Court held that respondent therein had knowledge of
the intimation given by appellant and subsequent conduct of the
respondent disentitles the respondent to the relief as granted by
the High Court.
31. In the two decisions relied by learned counsel for petitioner,
Supreme Court held that ordinarily certificate of posting cannot
amount to effective service of notice. However, in a given case, it is
permissible to the Court to presume service of notice sent by
certificate of posting by looking into surrounding facts. The learned
counsel for the respondents contended that the fact that
petitioners kept quit for long time would show that they were
aware of such intimation. Thus, learned standing counsel was
specifically asked as to whether any despatch register was
maintained by the respondent municipal corporation and whether
there was any proof of despatch of intimation notice dated
12.11.2008. Learned standing counsel, on instructions, informed
the Court that no despatch register is available and there is no
other proof of sending the notices. Except copy of intimation
letters and the stamp paper of certificate of posting, there is no
other material available on record to show that letters were
despatched and served.
32. As seen from the intimation letter, it is not a rejection. On
scrutiny of the application submitted for regularization, scrutiny
authority found certain documents were not filed and necessary fee
was not paid. Therefore, petitioners were asked to submit those
documents and necessary penal charges. If the same was received,
probably the petitioners could have submitted the documents
required by the respondent corporation or could have asked for
some other time or offered some explanation. They could have gone
in appeal also. Such a course cannot be ruled out. Thus, it cannot
be presumed, in the light of the contents of the said intimation
notice that the petitioners deliberately kept quiet.
33. As fairly submitted by the learned standing counsel, several
regularization applications submitted during the same period are
yet to be disposed of for various administrative reasons and the
scheme has not come to an end by 31.05.2013. Having regard to
the peculiar facts of this case, it cannot be presumed that
intimation notice dated 12.11.2008 were deemed to have been
served and that the petitioners were aware of such intimation,
more particularly, when the consequence of such presumption are
grave and result in demolishing the constructions so made. As no
intimation was given to petitioners on objections to process their
building regularization applications, it is deemed that such
applications submitted by the petitioners are pending. Since their
building regularization applications are pending, no coercive action
can be taken against them.
34. Having regard to the same the relief sought by the
respondents 4 to 6 in W.P.No.4306 of 2015 cannot be granted and
the same is liable to be dismissed.
35. W.P.No.16690 of 2015 is disposed of with the following
directions:
i) Since the petitioners are now in receipt of intimation
notice dated 12.11.2008, petitioners shall submit the required
documents and penalization charges as demanded in the said
intimation notice within a period of three weeks from this date and
on furnishing of such documents and payment of charges, if the
authorities are satisfied that the required documents are
furnished, the building regularization application of the petitioners
shall be considered and appropriate orders be passed as warranted
by law within further period of three weeks. Till the orders are
passed, as directed above, the notice issued under Section 636 of
the Act shall be kept in abeyance and no coercive action shall be
taken against petitioners.
36. Thus, W.P.Nos.1470 and 4306 of 2015 are dismissed and
W.P.No.16690 of 2015 is disposed of accordingly. There shall be
no order as to costs.
Miscellaneous petitions if any pending in these writ petitions
shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
Date : 14.08.2015
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