1. This is an application for the issue of a writ of certiorari calling for the records relating to the order No. 840/2/3/76 dated 19-10-1976 0f the Municipal corporation of Hyderabad and the order in memorandum no. 5865/ k2/ 76-3- MA dated 26-5-1978 of the government of Andhra Pradesh and quashing the same and to direct the 1st respondent to sanction the plan submitted by the petitioners on 25-9-1976 for construction of second floor.
2. The relevant facts are as follows: The petitioners are the owners of a building bearing Municipal No. 3-2- 840 in Kachiguda, Hyderabad. The petitioners applied on 7-2-1964 to the commissioner of the 2nd respondent corporation for permission to raise certain constructions. As no orders were communicated, the petitioner commenced construction on 1-4- 1964. When the construction was nearing completion, the 1st respondent issued a noticed calling upon the petitioner to demolish the construction. The petitioner to demolish the construction. The petitioner there upon filed a writ petition W. P. No. 273/65 and the same was allowed by this court on 25-1-1968 holding that the petitioner was entitled under section 437 of the Hyderabad Municipal corporation Act to proceed with the construction, as no communication was received from the corporation within 30 days as required by the Act and that the construction did not contravene any of the provisions of the Act or the Bye-laws. Thereafter, the petitioner completed construction of the ground floor in accordance with the plan submitted by them.
3.The petitioners wanted to raise a first floor on the ground floor for a lodging house and applied on 4-9- 1971 with the plans for constructing the first floor. The 1st respondent called upon the petitioners to submit plans relating to the ground floor, whereupon the petitioners replied on 8-10-97 that the necessary plans were in possession of the corporation and that the ground floor was constructed in accordance with the said plans and as upheld by this court in the judgement in W.P. No. 273/65. On 28-10-1971, the corporation refused permission for construction of the first floor raising some objections. The petitioners thereupon field a writ petition W. P. No. 4803/71 and during the pendency of the writ petition, completed construction of the first floor in Accordance with the plan submitted by them. That writ petition was finally allowed overruling the objections of the corporation and directing the Corporation to sanction the plan on the basis of which the structure was completed. It is started that the first is now being used as 'Nanda Lodge'.
4. The petitioners wanted to raise a second floor and accordingly submitted a plan on 25-9-1976 to the Corporation for construction of a building of a commercial nature. On 20-10-1976 the Corporation returned the plans refusing permission on the ground that 'the proposed construction violated Building Bye-law Nos. 26 and 23 and no documents of ownership or previous approved plans have been submitted'. The petitioners preferred an appeal to the Government and the Government passed an order rejecting permission to the petitioners on the ground that 'the relaxation of the Hyderabad Municipal corporation Building Bye- laws 1972 sought for by them are against the land used and that the site is affected by 5 feet as per the master Plan, and that the proposals are also in violation of By-laws 1972'. The petitioners thereupon field this writ petition challenging the orders of the corporation and the Government.
5. Shri C. P. Sarathy, the learned counsel for the petitioner firstly contended that Bye-laws Nos. 23, 24 and 26 are not applicable to the construction of second floor as held by this court in two judgements one of my learned brother Gangadhara Rao., J in W. P. No 186 of 1977, D/- 28-9-1977. and another of Chinnappa Reddy, J. in W. P. No. 186 of 1977, D/- 28-9-1977. and as per the circular issued by the corporation on 23-3-2977 and that the refusal of permission on the ground of violation of the said Bye-laws is not valid. In the first of the cases, my learned brother Gangadhara Rao, J . held that Bye-laws 26 to 28 and 59 and 60 do not apply to construction of the first floor. pursuant to the said judgment, the Special Officer, Municipal Corporation of Hyderabad issued proceedings No. 534/TP/77 dated 23-3-1977 informing the City planner and the Assistant Municipal Commissioners and Asstt. City planners of Circle Offices not to comply with building byelaws 23, 26, 27, 28, 59 and 60 to the extent of the construction on the first floor and above any building. In the judgment in W.P. No. 186 of 1977, D/- 28-9-1977, Chinnappa Reddy, J. held that apart from the Bye-laws 23, 26, 27, 28, 59 and 60 mentioned in the proceedings of the Special officer, Bye-law No. 24 also was not applicable to the construction of the first floor.
6. Relying on these judgments and the proceedings issued by the Special Officer referred to above, it is sought to be contended that the Building Bye-laws 23, 24, 27, and 28 are not applicable and therefore the impugned orders of the both the Commissioner and the Government refusing permission on the ground that the proposed construction of second floor violates Bye-laws 23, 24, and 26 are not valid.
7. Part II of the Hyderabad Municipal Corporation (Buildings) bye-laws 1972 containing Byelaws 18 to 50 deals with provisions relating to ventilation, sanitation and other requirements. Of these bye-laws, bye-laws 23 to 29 contain provisions relating to open air space and open space to the provided in respect of buildings. The other bye-laws in part II need not be referred to as they are not relevant for the purpose of this case.
Bye-laws 23 to 29 are as follows:-
'23. Open space requirements-open air habitation shall room intended for human habitation shall abut an interior or exterior open air space of the width o r dimensions specified in the Table below or an open verandah not exceeding half the width of open space subject to the maximum with of 3 meters and extending to the full length of the interior or exterior open space as mentioned below: (table omitted)
Explanation:- This bye law shall not apply to buildings intended for use exclusively for shops, godowns or warehouses having a height of not more than 7.3152 metres, but any relaxation from this bye-law shall be only with the specific sanction of the Commissioner.
24. Joint Open Air Space:- (1) Every such interior or exterior open air space unless the latter is a street, shall be maintained for the benefit of such building exclusively and shall be entirely within the owner's own premises.
(2) If such interior or exterior open air space is intended to be used for the benefit of more than one building of the same owner, the width of such open air space shall be equal to one half of the height of the tallest building abutting such open air space or the open space which has to be provided under this bye-law whichever is greater.
(3) If such interior or exterior open air space is jointly owned by more than one person, its width shall also be as specified above. provided that every such person may agree in writing to allow his portion of such joint open air space to the used for the benefit of every building abutting on such joint open air space required for the purpose of these bye-laws. No boundary wall between such joint open air space shall be erected or raised to a height of more than 2 metres.
25. Open space to be open to sky:-
Every open space, whether exterior or interior, provided in pursuance of any rule or bye-law or under agreement lodged with the Commissioner, shall to kept free from any erection thereon and shall be open to the sky and no cornice, roof or weather shade more than o.75 metre wide shall over-hang or project over the said open space. Every open space provided under these bye-laws shall have a suitable and sufficient access. No open drain, except for rain water, shall be constructed in any such open space.
26. Open space around Residential Buildings:-
(I) Every building located in a plot or site abutting one or more roads shall have a front open space op minimum width of 3 metres and in the case of sides abutting other streets a width of an average of 2 metres and at no point shall it be less than 1.5 metres. Such an open space shall form an inseparable part of the plot of the building.
(ii) No structures, other than supported balconies, weather shades or such unsupported structures not exceeding I metre in width, compound walls not exceeding 2 metres in height, and steps pylons, flower beds and the like not exceeding the height of the plinth shall be permitted in such open space.
(iii) In case of shops along the notified shopping streets or in predominantly shopping areas, the areas, the front open space required to be left may be allowed to be covered as a continuous (arcade) verandah of approved design open from both sides for public passage.
27. Rear open space:- (1) Every residential building shall have a rear open space of an average width of 4.5 metres and at no place shall it be less than 3 metres except in the case of back of back sites here the width of the rear open space may be reduced to 3 metres.
(2) A well, latrine, ash-pit garage, cow-shed and any other building including kitchen not intended for human habitation and not exceeding a height of 3 metres above ground level, may be constructed in the open space referred to above:
Provided that the aggregate area covered by such structures shall not exceed one-fourth of the area of such open space, with no opening of any sort facing or overlooking the property of the neighbour; provided further that no such construction shall be in the open space abutting anther street.
Note: This bye-law shall not apply to shops, stores attached to shops.
28. Side open space:- Every residential building shall have a permanent open air space not less than 1.5 metres in width on both sides other than its front and rear and such side open space shall form an inseparable part of the site, or plot on which the building is located. If any of the sides of such building abuts a street, the side open space shall be equal to the minimum front open space prescribed under bye-lay 26.
Note:- This bye-law shall not apply to shops where specially arcade verandahs are allowable.
29. Safeguard against reduction of open space:-
(1) No construction shall be allowed if such work operates to reduce an open air space of any other adjoining building belonging to the same owner to an extent less than what is prescribed by any of the bye-laws or rules in force at the time of the proposed work or to reduce further such open space if it is already less than that prescribed.
(2) No construction of any sort including a garage, outhouse, watchman's quarters shall be allowed to be erected in the front open space between the street and building line.'
8. Bye-laws 26, 27 and 28 deal with the extents of front open space. rear open spaces and side open spaces to be provided in respect of residential buildings. Bye-laws 23 and 24 deal with the open an space to be provided for the rooms in such buildings. Bye-law 25 prohibits any erection on the open space required to be provided under the Bye-laws or agreement with the Commissioner, and it further requires that such open space shall be open to sky, and no cornice or roof weather shade more than 0.75 metre wide shall overhang or project over the side open space. Bye-law 29 also provides for safeguards against reduction of the open space of the open air space. It will be clear from a reading of Bye-laws 26, 27 and 28 that at the ground floor level, open spaces have to be provided in the front, rear and sides of the building as prescribed therein. When the ground floor is constructed in conformity with the said Bye-laws 26, 27 and 28, any floor constructed on such ground floor of the building by raising walls vertically and on a line with the walls of the ground floor, will satisfy the requirement of the Bye-laws Nos. 26, 27 and 28 with regard to leaving of open spaces around the building. It is, therefore, not necessary that at the first floor level and above, again additional open space as required by the said bye-laws should be provided. If such additional space is required to be left open at the first floor level, it will result in leaving double the space required to be left open by the said bye-laws. Surely, that could not have been the intention of the framers of the bye-laws. The language of the bye-laws do not admit of any such interpretation. It is also opposed to common sense and well-known rules of Building Construction and is unworkable. My learned brother Gangadhara Rao., J. point out how such an interpretation of the bye-laws would make the construction of the first floor impossible.
9. In the case before my learned brother Gangadhara Rao, J. in Vijayalakshmi v. Comer. & Special Officer, Municipal Corporation of Hyderabad (W. P. No. 3496 of 1974), while sanctioning the plan, the Corporation insisted on 5 feet front open space in the first floor and 9 feet in the second floor and a set back of 6 feet on the west in both the floors and a set back of 3 feet on the north and south of both the floors. Questioning the said modification of the plan, it was contended in that writ petition that it was technically impossible to construct the two floors on the existing ground floor by setting back according to the modified plan. The learned Judge accepted the said contention and held that the walls on the first and second floors can be raised only on the walls of the ground floor and the first and second floors could be raised on the same foundation on which the ground floor is existing. In that view, the learned judge held that the Corporation can not insist on leaving further open space on the first and second floor levels in addition to the space allowed for set back at the ground floor level in accordance with the bye-laws. The learned Judge never intended to lay down that the first floor can be constructed in such a manner as to overhang or project over the open spaces required to be provided according to bye-laws 26, 27 and 28 for the building at the ground floor level in the front, rear and sides.
10. So far as bye-laws 23 and 24 are concerned, they relate to open air spaces to be provided for the rooms in the building. These bye-laws are intended to regulate and provide proper ventilation for the rooms. I do not see why the application of these bye-laws should be restricted to the rooms in the ground floor. Thee can be no practical difficulty in applying the bye-laws 23 and 24 to the rooms in the first floor and above. In the judgement in Vajayalakshmi v. Commr. and Special Officer, Municipal Corporation of Hyderabad (W. P. No.3496 of 1974) decided by my learned brother Gangadhara Rao., J. the question of applicability of bye-laws 23 and 24 to the first floor was not raised or decided. But the Special Officer, Municipal Corporation of Hyderabad on a wrong, understanding of the said judgment, issued proceedings No. 534/TP/77 dated 23-7-1977 that there need be no compliance with bye-laws 23, 26, 27 and 28 to the extent of construction of the first floor. On account of these proceedings of the special held by Chinnappa Reddy, J. in Smt. Godavari Bai Rathi V. Municipal Corporation of Hyderabad, (W. P. No. 186 of 1977) that bye-law No. 24 also applies to spaces referred to in Building bye-laws No. 23 and therefore, compliance with Building bye-law No. 24 could not also be insisted upon when the construction is on the first floor. But for the erroneous proceedings referred to above of the Special Officer, the learned Judge would not have intended to lay down that bye-laws relating to ventilation should not apply to the rooms in the first floor. The proceedings issued by the Special Officer that bye-laws 23, 26, 27 and 28 need not be complied with regard to construction of the first floor and above appears to be clearly erroneous. Such a direction is really beyond his powers.
11. The petitioners have to comply with the bye-laws 23 and 24 in respect of the rooms to be built on the second floor. But they need not set apart 5 feet open pace in the second floor, as they had already left the required open space at the ground floor level in conformity with bye-laws 26, 27, and 28. But in constructing the second floor, the petitioners have to comply with the provisions of bye-laws 25 and 29 and cannot raise any construction in contravention of the said bye-laws.
12. The contention of Sri C. P. Sarathey, the learned counsel for the petitioners is, that the Special Officer refused permission on another ground, viz. that no documents of ownership or previous approved plans were submitted. But these grounds do not appear to be valid or tenable. The petitioners had already constructed the ground floor and the first floor. Their ownership does not seem to have been doubted or disputed even in the earlier writ proceedings. The requirement of submission of previous approved plans cannot be complied with as the Corporation authorities did not approve the plan submitted by the petitioners for the ground floor and consequently the petitioners had field W. P. No 273/65 in respect of construction of the ground floor and the same was allowed by this count Similarly, when the Corporation refused permission for construction of the first floor, the second petitioner field W. P. No. 4803/71 and the same was allowed and the Corporation was directed to sanction the plan, on the basis of which the structure was completed. Therefore, the order of the Special Officer refusing permission for construction of the second floor on the ground that the previous approved plans were not submitted, is unsustainable. Further, the Government did not rely upon the failure to produce documents of ownership or previous approved plans in rejecting the petitioner's request. The Government, on the other hand, refused permission on the ground that the relaxation asked for by the petitioner is against the land use and that the site is affected by 5 feet as per the Master Plan and the proposals are in violation of bye-laws 23, 24 and 26 of the Building bye-laws. But the first two grounds are untenable as the petitioners had already provided 5 feet at the ground level. Therefore, the question of providing further additional 5 feet space at the second floor level does not arise. It is on a wrong interpretation of the bye-laws based on the proceedings issued by the Special Officer with regard to the application of the bye-laws Nos. 23, 26, 27 and 28 to the construction of the floor and above floors, that the proposals were held to be in violation of the said bye-laws. As already held by me, the petitioners having complied with the bye-laws 26, 27 and 28 and left the open space at the ground floor level as required by the bye-laws, the question of providing further additional open space at the second floor would not arise, but the second floor to be constructed by the petitioners should comply with the requirements of bye-laws 25 and 29 and the rooms to be built in second floor should also comply with the requirements of bye-laws 23 and 24.
13. In the result, the impugned orders are quashed and the writ petition is allowed and a writ of mandamus will issue to the respondents to sanction the plan submitted by the petitioners for construction of the second floor in accordance with the bye-laws and in the light of the directions contained in this order. This order will be complied with by the respondents within four weeks from the date of receipt of this order in default of such compliance, it is open to the petitioners to proceed with the construction of the second floor in accordance with the relevant bye-laws and in the light of the observations contained in this order. In the circumstances of the case, there will be no order as to costs. Advocate's fee Rs. 100/-.
14. Petition allowed.