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Vankudoth Swathi v/s The State of Telangana, Rep. by its Principal Secretary, Municipal Administration & Urban Development, Secretariat & Others

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    Writ Petition No. 10264 of 2020

    Decided On, 15 July 2020

    At, High Court of for the State of Telangana


    For the Petitioner: A. Jagan, Advocate. For the Respondents: R2 & R3, Pingali Lakshmi, Standing Counsel.

Judgment Text

Heard learned counsel for the petitioner, and learned Standing Counsel Ms. Pingali Lakshmi for respondent Corporation.

The petitioner challenges the notice dated 18.06.2020 issued by the 3rd respondent. It is the case of the petitioner that she is the owner of the property in Plot No.138, situated at Gopalpur Village, Hanamkonda Mandal, Warangal Urban District, and she applied for construction permission and the same was granted on 17.03.2020. It is her assertion that she is constructing strictly as per the sanctioned plan. A few of her neighbours, who are inimically disposed to her sought to disturb her possession and enjoyment of the property, and she filed O.S.No.487 of 2020 before the Principal Junior Civil Judge, Warangal on 03.06.2020, and in I.A.No.130 of 2020, an interim injunction was passed against the private parties. She further asserts that on earlier occasion when realtors tried to interfere with her vendor, her vendor filed FIR No.68 of 2018 dated 20.03.2018 in Kakatiya University Police Station. Now, with a malafide intention, at the instance of private parties, the respondent Corporation has issued the impugned notice. As a matter of fact, the petitioner promptly submitted her explanation on 23.06.2020, and the same is yet to be considered and final order is yet to be passed. The grievance of the petitioner is, pending consideration of her explanation, the respondents have directed her to stop the construction till the matter is decided.

On the other hand, learned Standing Counsel submits on instructions that, as per the unapproved layout, towards Southern side of the petitioner’s Plot is a 15 feet road, whereas in the Sale Deed furnished by the petitioner on 23.04.2018, the Southern boundary was shown as Open Plot of one B. Vijay Kumar Reddy. As the petitioner had misrepresented the boundaries of the plot and making construction on the road portion, she was directed to stop the construction work, pending consideration of the dispute. Learned counsel would also submit that it would be in the best interest of the petitioner to stop the construction work as in the event of the matter decided against the petitioner, the construction would go waste as the same would be demolished/removed. In those circumstances, the learned counsel opposes the writ petition and submits that the explanation submitted by the petitioner would be considered and necessary orders would be passed in accordance with law.

Having regard to the respective submissions, there is no dispute that as on date, the petitioner has been granted construction permission on 17.03.2020. The construction permission is after the Telangana Municipalities Act, 2019 (for short, ‘the Act’), came into force, and the permission is relatable to Section 174 of the Act. Under the Act, as applicable to Municipal Corporation of Warangal, the procedure envisaged is Self-Certification/declaration to the effect that the construction application is made in accordance with the Master Plan, or the Local area plan or the Building Rules in force. Once such application is made online, a person is not even required to wait for formal approval and the same shall be deemed to have been granted. However, in terms of sub-section 3 of Section 174, the onus of complying with the Self-Certification lies with the applicant and the applicant would be personally held accountable and liable in case of false declaration and action is liable to be initiated against the said person.

In the present case on hand, the allegation against the petitioner is that the petitioner herself declared in her application for building permission about 15 feet road towards Southern side of her plot, but failed to maintain the boundary, and making construction encroaching the road. It may be noted that the Sale Deed of the petitioner is dated 23.04.2018. Whether there is 15 feet road on the Southern side of the petitioner’s Plot or not, is a factual aspect which is required to be enquired into basing on the building plan and the authenticity of layout plan, and whether the same has been approved or not is also a factual aspect to be enquired. As these are all matters of enquiry, the respondent Corporation had rightly issued the impugned notice for which the petitioner also had submitted explanation.

In the light of the procedure contemplated under the Act, more particularly, the onus having been shifted on the applicant, it would be the petitioner who would suffer in the event of there being a finding of misrepresentation on the part of the petitioner.

In that view of the matter, while issuing notice to enquire into, and pending enquiry in terms of the Act, there cannot be any restraint on the petitioner from making construction. As the construction being made by the petitioner is based on self-declaration, it is at the risk and cost of the petitioner herself. In that view of the matter, the notice dated 18.06.2020, to the extent of directing the petitioner not to proceed with the construction, pending enquiry, is not sustainable.

Though the learned Standing Counsel asserts that the writ petition itself is not maintainable as it is filed against a Show Cause notice, the said contention is not sustainable for the simple reason that, in the present case, the notice itself is beyond the statutory power of the Commissioner, and this Court had repeatedly held that as long as the permission granted in favour of an individual is intact, the individual in whose favour permission was granted cannot be directed to stop the construction. Further, in the very scheme of the Act, when self-certification has been introdu

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ced, the burden of compliance with the same lies on the citizen. The construction being made by the petitioner is subject to approved plan, and the burden lies on the petitioner to justify the constructions being made and she is the one who is taking risk if the construction being made is in contravention of the self-declaration and building permission. Accordingly, the writ petition is allowed by setting aside the notice dated 18.06.2020, to the extent of directing stoppage of construction till completion of enquiry, as being unsustainable. No costs. Miscellaneous petitions, if any pending, shall stand closed.