Merely because the Corporation has assessed the flats and is collecting taxes, it does not mean that the Corporation has acquiesced to waive its right to initiate action against the Builder for removal of the illegal and unauthorised constructions. In this context, it is necessary to refer to Section 220(3) of the Act, which reads as follows:
Notwithstanding anything contained in this Act and the rules made thereunder, where a building is constructed, or reconstructed or some structures are raised unauthorisedly, it shall be competent to the assessing authority to levy property tax on such building or structure with a penalty of ten per cent on the amount of tax levied till such unauthorized construction is demolished or regularised. A separate receipt of the penalty levied and collected shall be issued.
As long as the construction continue to remain illegal and unauthorised, the Corporation has every right to initiate action against the Builder for removal of such illegal and unauthorised construction, and time shall not come in the way of the Corporation to take action for removal of such illegal and unauthorised constructions, and more particularly when the statute itself did not prescribe any time limit for initiating such action.
. The contention of the Builder that inasmuch as third party interests are created in the building, their interests should be safeguarded, and any coercive action to demolish the building, would make them suffer irreparable loss, also cannot be accepted. There is no doubt that third party interests are created in the building. But merely because the third parties purchased the flats by spending their hard earned money and life savings, it does not mean that their interests should be safeguarded even at the cost of illegalities.
Arvind L. Abhyankar vs Municipal Corporation Of ... on 17 September, 2002
Equivalent citations: AIR 2003 AP 94, 2002 (5) ALD 763, 2003 (1) ALT 336
2. For the sake of expedience, the petitioner in WP No. 9684 of 1994 shall be referred to as 'the Builder' for he is said to have constructed the multi-storied building christened "Meera Niketan" located a Kutbiguda, Hyderabad, while the petitioners in WP Nos.9875, 10639 and 10755 of 1994, shall be referred to as 'the Purchasers' for they claim to have purchased the flats in the building, and while the respondent-Municipal Corporation of Hyderabad shall be referred to as 'the Corporation'.
3. The Builder filed WP No. 9684 of 1994, initially impugning the press release dated 11-5-1994, issued by the Corporation, in the newspapers, namely The Hindu, Newstime, Indian Express, etc., threatening to demolish the building, as illegal and arbitrary.
4. Subsequently, the Builder filed WP MP No. 27085 of 1999 seeking to amend the prayer in the writ petition, which was ordered on 9-12-1999. The amended prayer reads:
To set aside the notice dated 6-6-1994 issued to the petitioner directing to remove the alleged unauthorised construction from 5th to 10th floors consisting of 30 flats in the upper floor and three flats on the ground floor, total 33 flats in the premises bearing No. 3-3-825/2, situated at Kulbiguda, Hyderabad, to declare that the floors from 5th to 10th raised are in accordance with the plan approved under deeming provision and also to declare that the Zoning Regulations, 1981 and A.P. Apartments (Promotion, Construction and Ownership) Rules, 1987 are not applicable to the petitioner's building and to declare the action of the respondent in issuing the notice for demolition after nearly six years is contrary to the judgment in SA No. 154 of 1983, dated 10-11-1987 and consequently to direct the respondents not to demolish any portion of the above mentioned premises.
5. Assailing the very same press release dated 11-5-1994, the Flat Owners Welfare Association of the building filed WP No. 10639 of 1994. While about ten persons, claiming to have purchased flats in the building filed WP Nos.10755 and 9875 of 1994, assailing the notice dated 6-6-1994 issued by the Corporation, as illegal and arbitrary, and consequently to direct the Corporation not to demolish the flats purchased by them.
6. The facts necessary to dispose of these four writ petitions, may briefly be noted as stated by the Builder in the writ petition filed by him.
7. On 19-6-1-979, the Builder's father applied for permission to the Corporation for construction of the multi-storeyed building (Ground +10 floors). When there was no response from the Corporation either granting or rejecting the permission within the statutory period of 30 days, the Builder's father commenced construction of the building on 19-7-1979. The Builder's father also made an application to the Corporation on 16-8-1979 requesting them to exempt the building from certain Building Bye-laws of 1972. When the Corporation issued notice dated 14-9-1979 directing the Builder's father to stop construction of the building, he instituted a suit being OS No. 2972 of 1979 on the file of the V Assistant Judge, City Civil Court, Hyderabad, seeking to restrain the Corporation from interfering with the construction of the building. Eventually, the suit was dismissed on 15-1-1981. The appeal filed there against was allowed by the Additional Chief Judge, City Civil Court, Hyderabad, in AS No. 63 of 1981, dated 14-9-1981, holding that the construction of the building was not in violation of any of the Building Bye-laws of 1972. Aggrieved thereby, the Corporation filed second appeal before this Court in SA No. 154 of 1983. During the pendency of the second appeal, about 42 persons, claiming to be residents of Kutbiguda, filed WP No. 4601 of 1987, questioning the construction of the building. This Court by order dated 15-4-1987 stayed the construction of the building. Ultimately, by common order dated 10-11-1987, this Court disposed of the second appeal as well as writ petition with certain directions, which shall be referred to later.
8. According to the Builder, the Commissioner of the Corporation after conducting inspection of the building, by his letter dated 5-1-1989 certified that the construction of the building is in accordance with the Building Bye-laws of 1972, which were in force when the Builder's father applied for permission in 1979.
9. Subsequent to the judgment in second appeal, in 1987 the Builder constructed six more floors, namely floors 5 to 10. On 8-4-1994, the Corporation issued notice to the Builder stating that the construction of floors 5 to 10 is illegal and unauthorised. Assailing the said notice, the Builder filed WP No. 6826 of 1994. This Court by order dated 12-4-1994, disposed of the said writ petition directing the Builder to make appropriate representation to the Corporation. The writ appeal filed there against was also dismissed by a Division Bench of this Court by judgment dated 27-4-1994.
10. On 19-4-1994, the Corporation issued notice to the Builder directing him to explain the genesis of the letter dated 5-1-1989, said to have been issued by the Commissioner of the Corporation certifying that the constructions made by him are in accordance with the Bye-laws of 1972. The Builder submitted his reply to the said notice on 29-4-1994. The Corporation also issued another notice dated 19-4-1994 directing the Builder to explain as to why the two flats constructed by him on the ground floor in the area meant for parking, should not be pulled down. The Builder submitted his reply to the said notice on 4-5-1994 stating that he would remove them soon after the construction of the building is over.
11. As per the directions of this Court in WP No. 6826 of 1994, dated 12-4-1994, the Builder submitted his reply on 9-5-1994 to the show-cause notice dated 8-4-1994, issued by the Corporation, stating that the constructions made by him are not contrary to the provisions of the Hyderabad Municipal Corporation Act, 1955 (for short 'the HMC Act'), that he had booked the flats for sale upto 10th floor, that possession of the flats was also given to the Purchasers, the Corporation having assessed the flats, is also collecting tax from the flat owners, and therefore, the building should not be demolished. According to the Builder, the Corporation without considering his reply, on the last day fixed for submission of reply i.e., on 11-5-1994, issued the press release threatening to demolish the building.
12. Thereafter, on 6-6-1994, the Corporation issued show cause notice to the Builder pointing out the violations alleged to have been committed by him in the course of construction of the building. The Builder submitted his detailed reply through his Advocate to the said show cause notice on 10-10-1994 stating that as none objected to the construction of the building, he proceeded to construct floors 5 to 10, and therefore, raising objection at this distant point of time stating that the constructions of floors 5 to 10 are illegal and unauthorised, is improper, and that if any coercive action is taken pursuant to the impugned notice to demolish the building, it would cause irreparable loss and injury. He, thus prayed to restrain the Corporation from taking steps to demolish the building pursuant to the impugned notice.
13. On behalf of the Corporation, its Chief City Planner filed counter-affidavit denying the allegations made by the Builder, it is stated that the father of the Builder had directly approached the Government seeking grant of permission Reconstruction of the building. The Government vide its memo dated 25-6-1979 forwarded the application submitted by the father of the Builder to the Corporation. As the father of the Builder did not submit regular plans, as required under Section 428 of the Act, he was advised to pay advance permit fee for considering his case. Pursuant to the said advise, the father of the Builder on 19-7-1979 submitted proposals for construction of the multi-storeyed building (Ground +10 floors) at Kutbiguda after dismantling the existing old building.
14. While the matter stood thus, the father of the Builder filed suit being OS No. 2972 of 1979 on the file of the V Assistant Judge. City Civil Court, Hyderabad, seeking a declaration that the proposals filed by him are deemed to have been sanctioned. The said suit after full-dressed trial was dismissed on 15-1-1981. Aggrieved thereby, the father of the Builder filed appeal in AS No. 63 of 1981, which was allowed by the Additional Chief Judge, by his judgment dated 14-9-1981. Assailing the said judgment, the Corporation filed second appeal in SA No. 154 of 1983, and Court by judgment dated 10-11-1987, disposed of the same with certain directions.
15. The counter-affidavit further avers that the Builder in utter disregard of the judgment in second appeal has proceeded to construct floors 5 to 10. He has violated the provisions of Hyderabad Municipal Corporation Act, 1955, Hyderabad Municipal Corporation Building Bye-Laws of 1972, Multi-storeyed Building Regulations, 1981, Municipal Corporation (Building Bye-laws), 1981 and A.P. Apartments (Promotion, Construction and Ownership) Act, 1987. The Builder constructed floors 5 to 10 without obtaining permission from the Corporation. The Builder has not provided sufficient parking space as required by the Zoning Regulations issued in G.O. Ms. No. 414, M.A., dated 27-9-1975.
16. The Corporation denied that the Commissioner issued letter dated 5-1-1989 certifying that the building constructed by the Builder is in accordance with the Bye-laws of 1972. By the time, the judgment in second appeal was delivered in 1987, the Builder had already constructed five floors (Ground + four floors). According to Section 440 of the Act, the Builder before proceeding to make construction should give seven days clear notice, which he failed to do. Therefore, initiation of proceedings for demolition of the building, cannot be faulted.
17. The counter-affidavit further states that mere assessment of the constructions and collection of taxes by the Corporation does not mean that the Corporation has regularised the illegal and unauthorised constructions made by the Builder. As long as the illegal and unauthorised constructions remain uncured, the Corporation has the power to initiate action against the violators of the law, The Builder without obtaining Occupancy Certificate from the Corporation has sold the flats in the building to third parties and allowed them to occupy, which is in gross violation of the provisions of the Apartments (Promotion, Construction and Ownership) Act, 1987. As the Builder has made the construction of floors 5 to 10 without obtaining the permission of the Corporation, they are illegal and unauthorised, and therefore, a press release was issued in the news papers on 11-5-1994 cautioning the general public not to purchase flats in the building.
18. The counter-affidavit further states that after considering the representation made by the Builder and the Purchasers in compliance with the order dated 8-4-1994 passed by this Court in WP No. 6826 of 1994, the Corporation passed the impugned order 6-6-1994 stating that the question of regularizing the flats on the ground floor and other flats on floors 5 to 10, does not arise, for they were constructed in violation of the law. Insofar as the writ petitions filed by the Purchasers, it is stated in the counter that they have been set up by the Builder to support his case. He, therefore, prayed for dismissal of the writ petitions.
19. Considering the general importance of the matter and the fact that the construction of the building has long been over and some third party interests have been created therein, for the people who had purchased the fiats in the building are living therein for the last five to ten years and are also paying taxes to the Corporation, this Court in order to ensure that no miscarriage of justice takes place, appointed Sri. L. Ravi Chander as amicus curiae to assist the Court in the matter.
20. Sri. Gopal Govind Naik, the learned Counsel appearing on behalf of the Builder would submit that since the father of the Builder obtained permission in the year 1979 under the provisions of the Act and the Building Bye-laws of 1972, which were in existence then, the construction of floors 5 to 10 made by him subsequent to the judgment in second appeal, are also governed by the said provisions. Therefore, the objections raised by the Corporation that the Builder has contravened the law with respect to the height of the building and providing of parking space, are untenable inasmuch as they conform to the standards prescribed in the National Building Code of India, 1970. He would further submit that the Builder having constructed floors 5 to 10, sold the flats therein to the Purchasers. The flats are assessed and the Corporation is also collecting tax. The collection of tax by the Corporation from the Purchasers has given them an assurance that the construction made by the Builder are legal and authorised. He would further submit that the impugned action of the Corporation is hit by the doctrine of laches inasmuch as officials of the Corporation though conducted several inspections during the course of construction of floors 5 to 10, never raised any objection, and their studied silence gave them an assurance that the constructions are legal and authorised, and after lapse of six years, the Corporation has resorted to the impugned action, which is bad in law. The learned Counsel for the Builder further submits that the Corporation is compassionate while dealing with professional Builders, but is harsh while dealing with owner turned builders. This is discrimination and is not in keeping with the equity principle. He would further submit that inasmuch as third party interests have been created in the building, it would be improper on the part of the Corporation at this distance of time to demolish the building. If the building is demolished, not only the interests of the Builder, but also the interests of the third parties, who have purchased the flats in the building, would be adversely affected and they would be put to irreparable loss and injury. He lastly submits that the impugned action is not preceded by any notice, and as such, is unsustainable in law. He thus prayed for saving the building from demolition.
21. Sri A. Sudhakar Reddy and Sri C. Malla Reddy, the learned Counsel appearing on behalf of the Purchasers would submit that the Purchasers are middle-income group persons. They spent their hard earned money and life savings for the purchase of the flats. They purchased the flats after perusing the judgment in second appeal. The Purchasers having purchased the flats are living therein and the Corporation is also collecting taxes from them. The impugned notice is not a show-cause notice. If any action for demolition is taken in pursuance thereof, they would be put to irreparable loss and injury. Therefore, they prayed for saving of the building from demolition. They, however, made a submission that the applications filed by the Purchasers before the Government seeking regularisation of their flats under the BRS scheme are pending, and therefore, a direction be issued to the Government to consider and dispose of the same in accordance with law.
22. Sri. G. Rama Rao, the learned Standing Counsel for the Corporation would contend that the judgment in second appeal made it clear that the Builder cannot take advantage of the deemed permission under Section 437 of the Act and make future constructions in contravention of the law. However, ignoring the same, he constructed floors 5 to 10 without obtaining permission from the Corporation. So long as the illegal and unauthorised constructions continue to remain uncured, the Corporation is empowered to take action for their removal and time shall not be a bar for the Corporation to initiate action for removal of such illegal and unauthorised constructions. The deemed permission is valid only for one year. Therefore, the Builder cannot claim the benefit thereof. Since already a notice was issued to the Builder to explain about the illegal and unauthorised constructions made by him, no further notice need be given him. The impugned order was passed after considering the representation submitted by the Builder in pursuance of the order passed by this Court in WP No. 6826 of 1994, dated 8-4-1994, and therefore, no exception can be taken to the same. Merely because the flats in the building are assessed to tax, and tax is being collected by the Corporation from the purchasers, it does not mean that the Corporation has given up its right to initiate action against the Builder for the alleged illegal and unauthorised constructions. Thus, contending, he prayed for dismissal of the writ petitions.
23. Sri Ramesh Ranganathan, the learned Additional Advocate-General supported and supplemented the arguments of the learned Standing Counsel for the Corporation. He would contend mat under Sections 428 and 440 of the Act, the Builder before commencing the construction is duty bound to inform the Corporation about his intention to construct the building, which he has not done. The deemed permission under Section 437 of the Act is valid for a period of one year. Even the judgment in second appeal made it clear that the Builder shall not take advantage of the deemed permission. Therefore, the construction of floors 5 to 10 made by the Builder without obtaining permission from the Corporation, is illegal and unauthorised. Mere collection of tax by the Corporation does not in any way take away their right to take action against the illegal and unauthorised construction. As long as the illegal and unauthorised constructions remain uncured, the Corporation is empowered to take action against the Builder for removal of such constructions, and time shall not come in their way for initiating such action. Since the representations submitted by the Purchasers for regularisation of their flats under the BRS scheme are pending before the Government, he submitted that the same would be considered and disposed of by the Government in accordance with law.
24. There is no dispute about the fact that the judgment in SA No. 154 of 1993, dated 10-11-1987 has attained finality as none of the parties filed any further appeal there against. Be it noted that before the judgment in second appeal was delivered in 1987, the Builder had already constructed five floors (Ground + four floors). The whole controversy in these writ petitions, is however, with regard to the construction of floors 5 to 10, made by the Builder subsequent to the judgment in second appeal. In that view of the matter, the directions issued by this Court in second appeal, have a bearing on the disposal of these four writ petitions. This Court while disposing of the second appeal made the following directions:
If the parking space provided by the plaintiff is not in accordance with the requirements of the law, it is open to the Corporation to take action. So far as the construction of which has been completed are concerned, the Corporation cannot take any action for any of the alleged violations of the bye-laws except in regard to the parking space. So far as the future construction is concerned, it is open to the Corporation to take action against the plaintiff if such construction is contrary to the provisions of the Act or the Bye-laws and the Zonal Regulations. By taking advantage of the deeming provisions under Section 437, it is not open to the plaintiff to contravene any of the provisions of the law.
25. From a reading of the above directions, the following principles emerge:
(1) Insofar as the parking space provided by the Builder is concerned, it was open to the Corporation to take action against the Builder, if the same was not in accordance with the requirements of law.
(2) Insofar as the constructions made by the Builder upto five floors (Ground + four floors) is concerned, the Corporation was estopped from taking any action against the Builder for any alleged violations of the bye-laws.
(3) Insofar as the future constructions is concerned, it was open to the Corporation to take action against the Builder if the constructions so made are contrary to the provisions of the Act or the Bye-laws and the Zonal Regulations.
(4) In the guise of deeming provision under Section 437 of the Act, it was not open to the Builder to contravene any of the provisions of the law.
26. The above directions by no stretch of imagination can be said to have accorded permission to the Builder to construct floors 5 to 11 without obtaining permission from the Corporation. Under the semblance of deemed permission under Section 437 of the Act, the Builder was not entitled to contravene any of the provisions of the law. Insofar as the parking space provided by the Builder was concerned, the Corporation was given liberty to take action against the Builder, if the same was not provided in accordance with the requirements of law. Any constructions that were to be made by the Builder subsequent to the judgment in second appeal were to be governed by the provisions of the Act or the Bye-laws and the Zonal Regulations, and in case of any violation thereof, it was open to the Corporation to take action against him.
27. The submission of the learned Counsel for the Builder that since the Builder had obtained permission under the provisions of the Act and the Building Bye-Laws of 1972, the said provisions are only applicable to the constructions made by him subsequent to the judgment in second appeal, and the Corporation cannot take any objection on the ground that the height of the building and parking space provided is not in accordance with law, cannot be accepted for the reason that by the time the judgment in second appeal was delivered in 1987, the Building Bye-laws of 1972 became non-existent in view of the fact that they were superseded by the Municipal Corporation Building Bye-laws, 1981, framed by the Corporation in exercise of the powers conferred on by Section 589 of the Act, in G.O. Ms. No. 905, Housing Administration and Urban Development (MA), dated 7-8-1981. According to Regulation 3.1 of the Building Bye-laws of 1981, the Builder was duty bound to obtain building permit before commencing the construction of floors 5 to 10, which he admittedly did not do. The deemed permission under Section 437 of the Act is valid for one year. If at all the Builder intended to avail the benefit of the deemed permission," he should have completed the construction of the building within one year of the deemed permission. Since the deemed permission was granted in the year 1979, it was valid upto 1980. Therefore, the benefit of deemed permission was not available to the Builder. Even otherwise, the judgment in second appeal made it clear that the Builder cannot take advantage of the deemed permission under Section 437 of the Act and make future constructions. Since the construction of floors 5 to 10 made by the Builder are without the permission of the Corporation, the said constructions are illegal and unauthorised. Therefore, the question as to whether the height of the building and the parking space provided are in accordance with the law or not, pales into insignificance.
28. The Bhagyanagar Urban Development Authority with the previous approval of the Government in exercise of the powers conferred on it by Sub-section (1) of Section 59 of the A.P. Urban Areas (Development) Act, 1975, framed Multi-Storeyed Building Regulations. 1981 in G.O. Ms. No. 917, Housing, Municipal Administration and Urban Development Department, dated 11-8-1981. The term "Multi-Storeyed Building" as defined under Regulation 2(v) of the Regulations, means and includes ail buildings with more than four floors (including the ground floor) or whose height is 1.5 metres or more, measured from the average level of the Central line of the street on which the site abuts, provided that staircase rooms, lift rooms, chimneys and elevated tanks above the top most floor and architectural features shall not be included in the number of floors in calculating the height of building. Regulation 4 of the Regulations provides that every application for approval of a site and for permission to construct or re-construct and/or alter a multi-storeyed building made, shall be accompanied by the particulars mentioned thereunder in (i)(a) to (c), (ii)(a) to (f) and (iii)(a) to (c) in addition to the particulars required under Building Bye-laws. The total height of such additional construction shall not exceed the average floor height of the building.
29. Since the building in question comprises of (Ground +10 floors), it squarely falls within the meaning of "Multi-storeyed Building" as defined under Regulation 2(v) of the Multi-storeyed Building Regulations, and therefore, the Builder before proceeding to construct floors 5 to 10 subsequent to the judgment in second appeal, ought to have applied for approval and permission to construct floors 5 to 10 to the Corporation in terms of Regulation 4 of the Regulations, which he admittedly did not do. Inasmuch as the Builder has not obtained any permission from the Corporation for construction of floors 5 to 10 in terms of the above Regulations, the constructions made by him must be held to be illegal and unauthorised. That apart, as rightly contended by the learned Additional Advocate-General, under Sections 428 and 440 of the Act, the Builder before commencing the construction, was under an obligation to inform the Commissioner by way of a notice, about the constructions which he intended to make, but he has not given any such notice to the Commissioner informing that he intended to make construction of floors 5 to 10. Therefore, the Corporation was well within its power to initiate action against the Builder for the alleged violations of law, and as such, the impugned notice issued by the Corporation directing the Builder to remove the alleged unauthorised construction of floors 5 to 10, cannot be said to be illegal and contrary to law and the directions issued by this Court in the judgment in second appeal.
30. Merely because the Corporation has assessed the flats and is collecting taxes, it does not mean that the Corporation has acquiesced to waive its right to initiate action against the Builder for removal of the illegal and unauthorised constructions. In this context, it is necessary to refer to Section 220(3) of the Act, which reads as follows:
Notwithstanding anything contained in this Act and the rules made thereunder, where a building is constructed, or reconstructed or some structures are raised unauthorisedly, it shall be competent to the assessing authority to levy property tax on such building or structure with a penalty of ten per cent on the amount of tax levied till such unauthorized construction is demolished or regularised. A separate receipt of the penalty levied and collected shall be issued.
31. From a reading of the above provision, it becomes clear that where a building is constructed or reconstructed or some structures are raised unauthorisedly, it is competent for the assessing authority, to levy property tax on such illegal constructions with a penalty of ten per cent on the amount of tax levied till such unauthorised constructions are demolished or regularised. In other words, so long as the unauthorised constructions continue to remain undemolished or uncured, it is competent for the assessing authority to assess such illegal constructions and impose penalty often per cent on the tax levied.
32. I considered this aspect of the matter in Shivbagh Welfare Association v. Commr. and Special Officer, MCH, , and held:
The petitioner is seeking relief on the basis of the fact that the members of the petitioner-Association had constructed houses and subsequently paid taxes to the MCH. This contention has no legal basis in view of the provisions of Section 220(3) of the HMC Act which empowers the MCH to assess and collect taxes even in relation to the buildings constructed unauthorisedly...
It was further held:
This provision which is obviously intended to be applied only for a limited duration, is no doubt laudable, since it has been made to ensure that the Municipal Corporation is not deprived of its revenue during the period commencing from initiation of action against such unauthorised constructions till actual demolition thereof. It does not Justify inaction on the part of the Municipal Corporation from acting in accordance with the provisions of the HMC Act for demolition of unauthorised constructions, nor can the said statutory provisions be made applicable for collection of property tax for years together without taking necessary action for demolition of such unauthorised constructions. The property tax levied on unauthorised constructions under Section 220(3) of the HMC Act is distinct from the property tax levied on the buildings constructed with the prior approval of the Municipal Corporation of Hyderabad.
33. Therefore, the contention of Builder or the Purchasers that since the Corporation is collecting tax from them for the past few years, the Corporation should be held to have forfeited their right to initiate action against the Builder for demolition of the alleged illegal and unauthorised constructions, cannot be sustained.
34. The submission of the learned Counsel for the Builder that the impugned action of the Corporation suffers from the vice of laches and delay also cannot be countenanced. It may be true that the officials of the Corporation-despite conducting several inspections during the course of construction of floors 5 to 10, did not raise any objections, but that does not mean that Corporation has given him a green signal to violate the law. The judgment in second appeal made it clear that insofar as future construction is concerned, the Builder shall not contravene the law and he shall not take advantage of the deemed permission. However, the Builder without obtaining permission from the Corporation and without giving notice to the Commissioner about his intention to make construction, as is required under the Act and the extant Bye-laws, constructed floors 5 to 10. That itself is a clear indication that he had violate the law. The Certificate dated 5-1-1989, said to have been issued by the Commissioner of the Corporation, certifying that the constructions made by the Builder are in accordance with the Bye-laws of 1972, is clouded with suspicion for the reason that the Corporation issued a notice to the Builder on 19-4-1994, calling upon him to explain the genesis of the said certificate, and in that regard, it is stated that the Corporation also initiated criminal action against the Builder. Therefore, the Builder cannot claim that the construction of floors 5 to 10 made by him are in accordance with law. As long as the construction continue to remain illegal and unauthorised, the Corporation has every right to initiate action against the Builder for removal of such illegal and unauthorised construction, and time shall not come in the way of the Corporation to take action for removal of such illegal and unauthorised constructions, and more particularly when the statute itself did not prescribe any time limit for initiating such action. Therefore, the contention of the Builder that the action of the Corporation suffers from the vice of delay and laches, is incorrect and cannot be sustained.
35. The submission of the learned Counsel for the Builder that the Corporation has discriminated the Builder inasmuch as while dealing with the professional builders, it is compassionate and while dealing with the owner-turned Builder, it is very harsh, also cannot be accepted, it may be true that there is failure on the part of the officials of the Corporation in taking action against some professional Builders for alleged violations of the law, but that by itself does not confer any right on the Builder to contend that he should be dealt with leniently and be allowed to violate the law. In this context, it is apt to refer to the judgment of the apex Court in Chandigarh Administration v. Jajit Singh, , wherein it was held:
If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the
respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with the law but even it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.
36. Merely because the Corporation is Soft towards professional builders and harsh towards owner turned builder, it does mean that the Corporation should not act in accordance with law, and allow the illegalities to be perpetrated. The Builder having violated the law, cannot be allowed to claim equities. Therefore, the plea of the Builder that he has been discriminated by the Corporation, cannot be sustained, and is accordingly rejected.
37. The contention of the Builder that inasmuch as third party interests are created in the building, their interests should be safeguarded, and any coercive action to demolish the building, would make them suffer irreparable loss, also cannot be accepted. There is no doubt that third party interests are created in the building. But merely because the third parties purchased the flats by spending their hard earned money and life savings, it does not mean that their interests should be safeguarded even at the cost of illegalities. The Builder having constructed floors 5 to 10 without the permission of the Corporation and in violation of the law, cannot take the support of the Purchasers to protect the illegal and unauthorised construction, and contend that since third party interests are created in the building, the building should not be demolished. In this context, it would be apposite to refer to a Full Bench decision of this Court in 3 Aces v. M.C.H., 1995 (I) ALD 1 (FB), wherein the Full Bench placing reliance on the decision of the apex Court in Pratibha Co-operative Housing Society Ltd. v. State of Maharashtra, , observed that it
cannot as a matter of law be held that where the interests of third party are involved, the power of demolition cannot be resorted to and that it was open to the Corporation to pull down, remove or demolish the unauthorised structures in its discretion, as otherwise would amount to putting a premium on such unauthorised constructions. However, having regard to the power of the Corporation under Section 452 of the Act, it was observed that the demolition of the building for contravention of the law has to be exercised keeping in view the facts and circumstances of each case. The Supreme Court in Pratibha Co-operative Housing Society Limited v. State of Maharashtra (supra) while parting with the case, observed:
... this case should be a pointer to all the builders that making of unauthorised constructions never plays and is against the interest of the society at large. The rules, regulations and bye-laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits.
38. In the instant case, the Builder subsequent to the judgment in second appeal, constructed floors 5 to 10 without applying and obtaining permission from the Corporation. It is unfortunate that the officials of the Corporation though conducted several inspections during the course of construction, for the reasons best known to them, remained mute spectators to the constructions being made by the Builder. The fact that the officials of the Corporation were aware of the constructions being made by the Builder is evident from the inspection file produced before this Court. This patently exposes their nexus with the Builder. Had the officials of the Corporation been diligent and prompt in taking steps to stop the illegal and unauthorised constructions, the Builder would not have raised the construction of floors 5 to 10 and sold the flats therein to third parties.
39. The contention of the Builder that the impugned action of the Corporation is not preceded by any notice is also liable to be rejected. It is to be noticed that when the Corporation issued notice dated 8-4-1994 to the Builder calling upon him to explain about the construction of floors 5 to 10, made by him illegally and without the permission of the Corporation, the Builder challenged the same by filing W.P. No. 6826 of 1994. This Court disposed of the said writ petition on 12-4-1994, directing the Builder to submit his explanation to the said notice. Pursuant thereto, the Builder submitted his explanation denying the allegations. In the meanwhile, the Corporation issued press release cautioning the general public not to purchase the flats in the building. Thereafter, the Corporation upon considering the representations, both of the Builder as well as the Purchasers, passed the impugned order. Therefore, the Builder cannot be heard to say that no notice was issued to him before initiating the impugned action for demolition of the building.
40. For the foregoing reasons, the impugned notice dated 6-6-1994, issued by the Corporation, threatening to demolish the building, cannot be termed to be illegal and arbitrary. Therefore, the writ petition filed by the Builder is liable to be dismissed, and it is accordingly dismissed.
41. Insofar as the submissions made by the learned Counsel appearing on behalf of the Purchasers to the effect that since the Purchasers purchased the flats on floors 5 to 10 in the building by spending their hard earned money and life savings, and after perusing the judgment in second appeal and under the belief that the constructions being made by the Builder are not illegal and unauthorised, and therefore, their interests should be safeguarded as otherwise, they would be put to irreparable loss and injury, is concerned, it would be appropriate to refer to the report of the learned amicus curiae.
42. Sri. L. Ravi Chander, who was appointed amicus curiae to assist this Court submitted a gist of the history of the litigation. He also prepared tabular statements showing the number of flats that are covered and not covered by sale agreements and the details of the taxes paid by the flat-owners. He also submitted in a tabular form, the answers submitted by the Builder though his Advocate to the deviations pointed out by the Corporation in the impugned notice dated 6-6-1994.
43. A quick glance at the tabular statements would disclose that nearly 31 flats are covered by agreements, 12 are covered by sale deed and the remaining 10 are not covered by any agreements. Inasmuch as none of the Purchasers are holding registered sate deeds, it cannot be said that there is valid transfer of title or ownership by the Builder in favour of the Purchasers.
44. The learned Additional Advocate-General placing reliance on the provisions of Section 5 of the A.P. Apartments (Promotion of Construction and Ownership) Act, 1987 would contend that in the absence of there being any registered sale deeds, the agreements under which the Builder sold the flats to the Purchasers, cannot be looked into. For better appreciation of the said contention, would be useful to extract Section 5 of the said Act, which reads:
A promoter who intends to transfer any apartment shall before, accepting any sum of money as advance payment or deposit, which shall not exceed twenty per cent of the price, enter into a written agreement of sale with the intending transferee and the same shall be registered as a document compulsorily registrable under Clause (b) of Sub-section (1) of Section 17 of the Registration Act, 1908.
45. From a reading of the above provision, it becomes clear that the promoter intending to transfer any apartment shall before accepting any advance not exceeding 20 per cent of the cost of the apartment, shall enter into a written agreement of sale with the intending transferee, and get the same registered in terms of Clause (b) of Sub-section (1) of Section 17 of the Registration Act, 1908. In the instant case, none of the purchasers of the flats are holding registered sale deeds. It is settled law that in the absence of registration, the contents of a document, which is required to be registered, cannot be gone into, except for collateral purpose of proving possession (See Bhaiya Ramanuj v. Lalu Maheshanuj, .)
46. It may be true that the purchasers having purchased the flats in the building by spending their hard earned money and life savings are living therein, but that by itself is not a ground to restrain the Corporation from taking any action against the illegal and unauthorised constructions, and more particularly when there is no valid transfer of the flats in favour of the Purchasers by the Builder by way of registered sale deeds. The Builder has only entered into agreements of sale with the Purchasers. The Purchasers though were well aware of the long drawn litigation between the Builder and the Corporation, yet entered into agreements with the Builder for purchase of the flats in the building. Be that as it may, in the absence of any valid transfer in their favour, it is not open to the Purchasers to rely on the contents of the agreement of sale and contend that they are the absolute owners of the flats.
47. The Builder started the construction of the building (Ground +10 floors in the year 1979 under the authority of deemed permission. Immediately, litigation between the Builder and the Corporation ensued and it ended in the year 1987, when this Court in second appeal granted several directions, including a direction as regards the future directions. The judgment in second appeal became final. Therefore, both the parties were governed by the directions given by this Court in second appeal. Before the delivery of judgment in second appeal, the Builder had already constructed five floors (Ground + four floors). Subsequent to the judgment in second appeal, he constructed floors 5 to 10, which for the reasons stated supra, were held to be illegal and unauthorised. Nearly 20 years elapsed from the date when the Builder started the construction of the building and having regard to the fact that third party interests are created in the building, the question as to whether it would be justified at this distance of time to direct demolition of the building has to be considered.
48. The power of the Corporation to direct removal of illegal and unauthorised constructions in its discretion cannot be disputed. In this context, it is necessary to refer to the observations made by a Full Bench of this Court in 3 Aces v. M.C.H. (supra) wherein the Full Bench upon considering the power of the Corporation to demolish a building for contravention of the Building Regulations held that it is for the Corporation to decide whether to exercise the power of demolition or not with reference to the facts and circumstances of each case.
49. It would also be appropriate to refer to a latest judgment of the apex Court in V.M. Kurian v State of Kerala, . In the said case, the apex Court was considering the power of the State Government to exempt buildings from operation of Rules framed under the Kerala Building Rules, 1984. The apex Court having considered the relevant Rules found fault with the action of the Government in giving exemptions with regard to height, open spaces, fire precautions and width of staircases in respect of a eight-storeyed building. The apex Court held:
The exemption granted by the State Government has enabled the 5th respondent to construct the building in violation of the Rules regarding - (1) minimum open spaces required to be kept in the front, rear and sides, (2) front, rear and side yards, (3) projections into and constructions on open spaces, (4) floor area ration, (5) maximum prescribed height, (6) aerodrome vicinity height restrictions, parking spaces, (8) minimum width of staircases, and (9) fire protection. Most surprisingly is that the requirement of having provision towards protection from fire hazards was also dispensed with. The minimum width of the staircase as required under Rule 21(11)(b) also got dispensed with. This shows that the Rules which are mandatory in nature and are required to be completed with for construction of a high-rise building, were allowed to be dispensed with. Observance and compliance with the Rules is for public safety and convenience. There cannot be relaxation of the Rules which are mandatory in nature and cannot be dispensed with especially in the case of a high-rise building. The position may be different in the case of one or two storeyed building where there are minor deviations from the Rules, which do not affect public safety and convenience. In the present case, the deviations are of high magnitude, which are contrary to public safety and convenience. The order passed by the State Government exempting the provisions of the Rules for constructing an eight storeyed building was contrary to the mandatory provisions of the Rules, and therefore, is not sustainable in law.
50. The demolition of the building would no doubt result in hardship to the Purchasers, but this Court cannot give a mandamus directing the Corporation not to demolish the building irrespective of the illegal and unauthorised constructions.
51. However, having regard to the fact that the Full Bench of this Court in 3 Aces v. M.C.H. has held that discretion is left with the Corporation whether to demolish the illegal and unauthorised constructions or regularise them, and having regard to the submission made by the learned Counsel for the Purchasers that the representations submitted by the Purchasers for regularization of their flats under the BRS scheme are pending before the Government, and having regard to the stand taken by the learned Advocate-General that if any such applications are pending, the Government would consider them in accordance with law, I deem it appropriate to dispose of the writ petitions filed by the Purchasers with the following directions:
52. If the representations, as stated by the Purchasers, are pending before the Government for regularization of their flats under the BRS scheme, the Government shall consider and dispose of the same within a period of three months from the date of receipt of a copy of this order, keeping in view the public safety and convenience, the facts appearing in this case, in accordance with the law governing the field, the judgment of this Court in 3 Aces v. M.C.H. and the apex Court in V.M. Kurian v. State of Kerala. Till the representations filed by the Purchasers are disposed of by the Government, no coercive action for demolition of the building shall betaken.
53. Before parting with the judgment, I am constrained to add that the lethargy on the part of the Corporation in not taking timely action against the violators of the law is leading to proliferation of illegal and unauthorised constructions in the twin cities of Hyderabad and Secunderabad. The unscrupulous Builders are indiscriminately constructing buildings throwing the law to the winds, while the Corporation is remaining a mute witness to such constructions. The inaction on the part of the Corporation, has in the recent past witnessed, many illegal and unauthorised buildings coming up, in some cases, the Builders in order to make a fast buck, are violating the law flagrantly and with impunity, and constructing the flats, endangering the lives of the purchasers and general public. Most of the illegal and unauthorised constructions are turning into tinderboxes, and in case any unfortunate incident takes place, like break down of major fire, the lives of not only the people living in the building, but also the lives of general public would be endangered, while the Builders go scot-free. The fact that such large scale illegal and unauthorised constructions are being carried out by Builders is an indication that the officials of the Corporation are hand-in-glove with such Builders. It is high time that the Government should come up with a law, which provides for mechanism to identify and punish the violators of law, not only the Builders, but also the officials, who encourage such Builder in making illegal and unauthorised constructions, and also ensure that the innocent Purchasers who spend their hard earned money are not cheated by the Builders.
54. Before closing the judgment, this Court acknowledges and places its appreciation on record the usual readiness with which Sri L. Ravichander, the learned Counsel has agreed to assist this Court as amicus curia, and the pains that he has taken in tracing the history of the case and preparing the tabular statements, which clearly depicted the true facts and the law.
55. In the result, WP No. 9684 of 1994, filed by the Builder stands dismissed. WP Nos. 9875, 10639 and 10755 of 1994, filed by the Flats Owners Welfare Association of Meera Niketan and the Purchasers of flats therein, stand disposed of in terms of the directions given supra. No costs.
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