Andhra Pradesh High Court - Amravati
P. Vijayalakshmi, vs The State Of Andhra Pradesh, on 26 August, 2020
Author: M. Ganga Rao
Bench: M.Ganga Rao
HONOUERABLE SRI JUSTICE M. GANGA RAO
Writ Petition No.11526 of 2019
ORDER:
This writ petition is filed being aggrieved by the alleged arbitrary and illegal action of the 2nd respondent Corporation in threatening to demolish the building of the petitioners bearing D.No.50-82-2 in Survey No.32/3 in Seethampeta Main Road, Resapuvanipalem village, Visakhapatnam consisting of Stilt + Ground + four floors RCC roofed commercial building without any notice and in violation of the provisions of the Greater Visakhapatnam Municipal Corporation Act and the Andhra Pradesh Regulation and Penalization of Buildings constructed unauthorizedly and in deviation to the Sanctioned Plan Rules, 2019.
The case of the petitioners is that, the 1st petitioner is owner and possessor of 140 square yards situated in Survey No.32/3 of Seethampeta Main Road, Resapuvanipalem village, Visakhapatnam by virtue of registered Gift deed No.5159/2015, dated 22.07.2015 executed by her sister K. Nagamani. The 2nd petitioner and K. Nagamani jointly purchased the adjacent land to an extent of 280 square yards situated in Survey No.32/3 of Seethampeta Main Raod, Resapuvanipalem village, Visakhapatnam, through the registered sale deed No.1285/2007, dated 22.02.2007. The petitioners jointly started construction of a commercial building consisting of stilt + Ground + four (4) floors in the year 2015. Due to ignorance, the petitioners had not made any application for permission of construction of the building and the construction of the building was completed by 07.06.2017. The petitioners made an 2 MGRJ W.P.No.11526 of 2019 application for regularization of their building under the provisions of Andhra Pradesh Regulation and Penalization of Buildings constructed unauthorizedly and in deviation to the Sanctioned Plan Rules, 2015. In its place, new Rules, 2019, were framed and in force. Admittedly, the subject building was constructed without approval and therefore comes under the purview of definition of Rule 2 (4) of the Rules, 2019. Rule 3 of the Rules specifies about compulsory making application for penalization by the persons who constructed buildings unauthorisedly or in deviation of the sanctioned plan. Rule 3 (7) specifies about the initiation of action by the respondents against the persons who have not made application for regularization of their buildings in accordance with law. Rule 14 of the Rules, 2019, empowers the respondents to initiate action including seizure of premises/demolition/filing of criminal cases against the persons who have not made any application for regularization of their unauthorized buildings. In spite of petitioners making an application for regularization of their building within prescribed time period specified by the respondents, the officers of the 2nd respondent have been threatening to demolish the petitioners building. On 14.08.2019, again some of the officers of the 2nd respondent Corporation came to the subject building and threatened to demolish the petitioners' building. The petitioners resisted the same with the help of neighbours and with great difficulty. As per Rule 11 of the Rules, 2019, the competent authority has to pass orders on the application for regularization within a period of and not beyond six (6) months and communicate the decision to the 3 MGRJ W.P.No.11526 of 2019 applicants. The petitioners made an application on 27-06-2019 for regularization and the same is pending, till finalization of the petitioner's application, no coercive action shall be taken against the petitioner's unauthorized building. Even according to the provisions of Section 461 of the Greater Hyderabad Municipal Corporation Act, 1955, (for brevity hereinafter called as "the Act") the 2nd respondent has to issue notice to the person who has erected or re-erected a building unlawfully carried upon in any premises directing the person to stop the same forthwith and if the person to whom notice was issued has not stopped the work, the 2nd respondent may direct that person to remove the same. According to Section 636 of the Act, if any work or thing requiring the written permission of the Commissioner under the provisions of the Act, Rules, Regulation or Bye-law is done by any person without obtaining such written permission, the Commissioner shall issue written notice to the person directing him to comply with the provisions of the Act. Without issuing any notice as required under the provisions of Section 461 or 636 of the Act, the officials of the 2nd respondent are trying to demolish the petitioners' building, which is arbitrary, illegal and more particularly in violation of the Rules, 2019. The object behind the issuance of the Regularization Rules is that even in cases where there are illegal constructions, demolition is not the only solution and that unless where such construction causes harm or nuisance to others, the same can be regularized. Assailing the highhanded action of the 2nd respondent in demolishing the 4 MGRJ W.P.No.11526 of 2019 petitioner's building, this writ petition came to be filed as being arbitrary and illegal.
The 2nd respondent filed counter stating that on inspection by the officials of the 2nd respondent, it is found that the petitioners have constructed stilt + Ground + four floors in an extent of 1119.00 square meters of land situated in Sy.No.32/3 of Resapurvanipalem unauthorisedly without obtaining any building permission from the 2nd respondent Corporation. As the petitioners have constructed the said building unauthorisedly, the 2nd respondent Corporation has issued notice under Section 452 of the Greater Hyderabad Municipal Corporation Act on 03.10.2016 directing them to submit explanation as to why action shall not be taken for removal of uanuthorised construction. In spite of receiving the notice, the petitioners failed to submit any explanation to the 2nd respondent Corporation. Hence, the 2nd respondent issued proceedings under Section 636 of the Act vide proceedings in US.No.1/2016/ACP/II/G1, dated 07.01.2017 calling upon the petitioners to remove the unauthorized construction which was sent through registered post dated 09-01-2017 and also affixed on the building. When the respondent Corporation is proposing to take action for demolition of the unauthorized building, in the meanwhile, the 1st petitioner submitted a representation on 02.02.2018 requesting the 1st respondent to regularize the unauthorized building. Since the petitioner made a representation for regularization of the petitioner's unauthorized building after cut off date i.e. 31-12-2014 where the unauthorized buildings were constructed on or before 31-12-2014 are entitled for regularization 5 MGRJ W.P.No.11526 of 2019 as per G.O.Ms.No.128, dated 22-05-2015. In pursuance to the 1st petitioner's representation, the 2nd respondent Corporation sent a report dated 21-02-2018 to enable the 1st respondent to take appropriate action on the petitioners' representation dated 02.02.2018. Pending consideration of the 1st petitioner representation before the 1st respondent as per the report of the 2nd respondent Corporation dated 21-02-2018, the 1st petitioner has applied for regularization through online application dated 27-06- 2019 as per G.O.Ms.No.14, dated 04.01.2019, whereby the 1st respondent Government has extended time for regularization of the unauthorized construction of the building, which were constructed after 01-01-1985 and before 31-08-2018. The BPS application made by the petitioners dated 27-06-2019 was rejected by the 2nd respondent Corporation vide proceedings BPS No.2019/Z- II/2013/36196, dated 10-08-2019 as the building was constructed on the proposed 100 feet wide road as shown in the master plan as per the approved master plan vide G.O.Ms.No.345 dated 30-06-2006 and the building is abutting to storm water drain on southern side and falling under 2.00 meters green buffer area which is prohibited from regularization under clause (d) (e) of Rule 7 of the A.P. Regularization and Penalization of buildings constructed unauthorisedly in deviation to the sanctioned Plan Rules, 2019. After rejection of the petitioner's BPS application, the 2nd respondent Corporation has intimated to the petitioners through the proceedings RC.No.757/2017/ACP-II, dated 16-08-2019 to remove the unauthorized construction of the building within 24 hours failing 6 MGRJ W.P.No.11526 of 2019 which the building will be demolished departmentally in view of the rejection of BPS application on 10.08.2019 and a copy of the said order has been affixed to the building as the petitioners are not available and the copy of the same has been handed over to the petitioners' watchman who is residing in the building. Since the petitioners have not taken any steps for removal of the unauthorized building pursuant to 636 notice dated 07-01-2017 and consequential order dated 16-08-2019, the 2nd respondent Corporation has started demolition of the unauthorized construction of the building, stilt + Ground + four upper floors constructed by the petitioners with the assistance of police after disconnection of electricity supply to the building. On 17-08-2019, when the demolition of the unauthorized building was in progress, the petitioners have approached this court by way of house motion and this Court granted stay of demolition for a period of two weeks and after receiving the information about the orders of this Court, the 2nd respondent Corporation has stopped the further demolition.
In spite of filing the counter by the 2nd respondent Corporation on 26-08-2019, on due service, the interim stay granted earlier is extended from time to time. Thereafter, the petitioners also filed I.A.No.2 of 2019 to permit them to amend the main prayer in the writ petition to declare the proceedings Rc.No.757/2017/ACP-II, dated 16.08.2019 of the 2nd respondent and demolishing the petitioners' building bearing D.No.50-82-2 in Survey No.32/3, Seethammapeta Main Road, Resapurvanipalem village, Visakhapatnam consisting of Stilt + Ground + four floors on 17-08-2019 without issuance of any 7 MGRJ W.P.No.11526 of 2019 prior notice and without following the procedure prescribed as illegal and arbitrary. The 2nd respondent filed counter to I.A.No.2 of 2019. Thereafter, the petitioners also filed another I.A.No.3 of 2019 seeking a direction to the 2nd respondent to pay Rs.15,95,000/- towards compensation for the damages caused due to the illegal partial demolition of the building of the petitioners, for which the 2nd respondent filed counter denying the liability. The petitioners filed another I.A.No.4 of 2019 to permit them to file additional affidavit in the writ petition bringing new facts. To that application also, the 2nd respondent filed counter. Further the 2nd respondent Corporation filed I.A.No.5 of 2019 seeking to vacate the interim orders granted by this court in the writ petition on 17.08.2019. Thereafter, the interim order was extended from time to time. Today, when the matter is taken up, the standing counsel appearing for the Corporation, stoutly opposed for the extension of interim order, insisted to hear the vacate petition.
Learned counsel for the petitioner only sought for extension of the interim order from time to time and not pressed for orders on the pending Interlocutory applications and also not chosen to file any reply to the counters. Even today also, the learned counsel for the petitioner seeking extension of the interim order for which Sri S. Lakshmi Narayana Reddy, learned standing counsel for the 2nd respondent Corporation stoutly opposed for extension of interim order, contending that the petitioners have constructed a multi- storied commercial building in the residential area by encroaching 8 MGRJ W.P.No.11526 of 2019 drainage channel without obtaining any permission from the Corporation.
This court perused the record and refused to extend the interim order. Then the learned counsel for the petitioner has made her submissions stating that the petitioners have jointly started construction of the commercial building consisting of stilt + Ground + four floors in the year 2015, however, without obtaining any permission and the same was completed by 07-06-2017. She submits that the petitioners have not received any notices much less the notices issued under Section 452 and 636 of the Act and they have not received any proceedings rejecting the petitioners' BPS application dated 10-08-2019. When the BPS application dated 27.06.2019 is pending for consideration, the issuance of notices under Section 452 and 636 of the Act and the action of the respondents in demolishing part of the building on the ground that it is unauthorized construction is illegal and arbitrary. Instead of demolishing the petitioners building, the 2nd respondent ought to have considered the petitioner's BPS application for regularization of the said building. Counsel for the petitioner states that the Full Bench of this Court laid down certain guidelines for regularization. As per the said guidelines the petitioners' building needs to be regularized. The Corporation is a public authority and the action must be tested on the touchstone of the fairness and reasonableness. As the action of the 2nd respondent in demolishing the petitioners building is not preceded by any notice as required 9 MGRJ W.P.No.11526 of 2019 under the provisions of the Act, the same is illegal and prays to allow the writ petition.
Sri S. Lakshsminarayana Reddy, learned standing counsel appearing for the 2nd respondent Corporation would contend that the petitioners have illegally and unauthorisedly constructed Stilt + Ground + four floors in an extent of 1119.00 square yards of land situated in Survey No.32/3 of Resapuvanipalem village, Visakhapatnam without obtaining any building permission from the 2nd respondent Corporation, for which, the 2nd respondent has issued notice under Section 452 of the Act on 03-10-2016 asking the petitioners as to why the action should not be taken for removal of the unauthorized construction. When no explanation was received, the 2nd respondent Corporation initiated action as per the provisions of Section 636 of the Act vide proceedings dated 07-01-2017 calling upon the petitioners to remove the unauthorized construction which was sent through registered post dated 09-01-2017 and the same was served on the watchman of the building who is residing therein. Thereafter, the 1st petitioner submitted a representation to the 1st respondent seeking regularization of the unauthorized construction of the building. Pending decision of the 1st respondent, the petitioners applied for regularization of the building through online BPS application dated 27.06.2019 as per G.O.Ms.No.14, dated 04.01.2019 and the petitioners' BPS application was rejected by the 2nd respondent Corporation vide proceedings BPS.No.2019/Z- II/2013/36196, dated 10-08-2019, as the proposed building was constructed on the proposed 100 feet wide road as shown in the 10 MGRJ W.P.No.11526 of 2019 master plan as per the approved master plan vide G.O.Ms.No.345, dated 30-06-2006 and the building is abutting to storm water drain on the southern side and falling under 2.00 meters green buffer area which is prohibited from regularization under clause (d) (e) of Rule 7 of the A.P. Regulation and Penalization of buildings constructed unauthorisedly in deviation to the sanctioned Plan Rules, 2019. Thereafter the petitioners were asked to remove the unauthorized constructions vide proceedings Rc.No.757/2017/ACP-II, dated 16.08.2019 the same was served on the petitioners. But, the petitioners failed to remove the unauthorizedly constructed building. The petitioners have constructed multi-storied building without obtaining any permission and in violation of the provisions of the Act and in spite of notice, they proceeded with the construction of the building and hence, the building needs to be demolished. In support of his contention, he placed a reliance on the decision of this court in R. Srinivas Kumar and others v. Greater Hyderabad Municipal Corporation and others1, wherein this Court, after considering various judgments of the Hon'ble Supreme Court, held that the unauthorized constructions should be demolished. The action of the 2nd respondent in demolishing the petitioners' unauthorized building could not be said to be illegal and arbitrary. The petitioners suppressed several material facts before this court and obtained interim order and the petitioners are not entitled for any relief under Article 226 of the Constitution of India. On this ground alone, the writ petition is liable to be dismissed in limini.
1 2013 (4) ALD 161 11 MGRJ W.P.No.11526 of 2019 This court, on careful consideration of the facts and circumstances of the case and considering the submissions of the counsel and on perusal of the record, found that the petitioners have brazenly and without obtaining any permission constructed the subject multi-storied commercial building in violation of the provisions of the Greater Hyderabad Municipal Corporation Act. The record reveals that the petitioner are initially made an attempt to get building permission, but failed to upload the application online for building permission with required necessary information and documents. Hence, the contention of the petitioners that due to their ignorance they did not make any application for building permission has merit no consideration. However, ignorance law cannot be excused. As seen from the sketch map filed by the 2nd respondent along with the counter indicates that the petitioner's unauthorized building is exactly in the land admeasuring 182.64 square yards classified as private land situated in Survey No.32/3 Part, and the land admeasuring 209.10 square yards was classified as Gedda Poramboke as per 22-A register of Resapuvanipalem. The petitioners, having received the notices under Sections 452 and 636 of the Act, the petitioners knowing fully well, approached the 1st respondent by way of representation on 02.02.2018. When the 1st petitioner's representation is pending before the 1st respondent, the petitioners submitted BPS application on 27.06.2019 and the same was rejected on 10.08.2019 and the copy of the proceedings was served on the petitioners. Suppressing all the above facts, the petitioners filed this writ petition and obtained interim order. Even 12 MGRJ W.P.No.11526 of 2019 before obtaining the interim order, the 2nd respondent has started demolition of the petitioner's building and demolished a part of the building and has stopped the further demolition as per the orders of this Court. In view of the unrebutted averments of the 2nd respondent's counter, shows that notice under Section 636 of the Act and consequential proceedings dated 16.08.2019 were served on the petitioners. Hence, the contention of the petitioners' that they had not received any notices under Sections 452 and 636 of the Act and the rejection of penalization and regularization proceedings have no merit consideration as the record reveals that the petitioners themselves made a representation dated 02.02.2018 with all details to the 1st respondent, for which the 2nd respondent Corporation has submitted a report to the 1st respondent Government. The petitioners approached this court with unclean hands and suppressed all the material facts known to them and obtained interim order, which would attract doctrine of Uberrima fides. The action of the 2nd respondent Corporation in demolishing part of the building is preceded by notice under Section 452 of the Act, for which no explanation is submitted and thereafter issued notice under Section 636 of the Act and the petitioner's BPS application was also rejected and communicated to the petitioner and the same has become final. The contention of the counsel for the petitioners that the 2nd respondent is under statutory obligation to regularize the authorized construction of building which is unobjectionable and not causing any public inconvenience as per the Rules 2019 is untenable as the petitioner's BPS application for regularization of unauthorized 13 MGRJ W.P.No.11526 of 2019 construction was rejected on 10.08.2019. The 2nd respondent has to take appropriate action for demolition of the unauthorized construction of the buildings, accordingly, the 2nd respondent proceeded for demolition of the buildings. This court also held, following the catena of judgments of the Apex Court, that the unauthorized buildings needs to be demolished in the case of R. Srinivas Kumar and others v. Greater Hyderabad Municipal Corporation and others (supra 1). Hence, the action of the 2nd respondent Corporation in demolishing the petitioners' unauthorized building could not be said to be illegal and arbitrary. The writ petition is devoid of any merit and liable to be dismissed.
This writ petition, yet on another ground of suppression of relevant material facts from this court, also liable to be dismissed. The petitioners having known issuance of the notices they submitted a representation dated 02.02.2018 to the 1st respondent Government for which the 2nd respondent submitted report clearly mentioning about the issuance of notices under Section 452 and 636 of the Act, for demolition of the building and the petitioners also suppressed about the rejection of the petitioners' BPS application on 10.08.2019 and further proceedings dated 16.08.2019 asking the petitioner to demolish the petitioners' unauthorized building and the same was served on the petitioners. But, the petitioners suppressing the above information from this court obtained interim order by way of house motion, thereby this court was mislead and it amounts to Uberrima fides. This court in detail dealt with the doctrine of Uberrima fides in the case of G. Bharati Devi and others v. the 14 MGRJ W.P.No.11526 of 2019 Hyderabad Urban Development Authority2 and for better appreciation of the same, the relevant paragraphs are extracted below:
The jurisdiction of the High Court under Article 226 of the Constitution of India is discretionary one and the High Court declines to exercise such a jurisdiction in favour of the persons who have not approached it with clean hands. The Doctrine of Uberrima fides recognized by English Courts and applied by the Courts in our country is squarely attracted to this Case. A Division Bench of this Court in Ibiza Industries Ltd. v. Union of India (1998 (5) ALD 565) applied this Doctrine and it held as under:
Be it noted that a Prerogative Writ is not to be issued as a matter of course. The applicant must come in the manner prescribed and adopt a method which is otherwise in accordance with law and must be perfectly frank and open with the Court. There is an obligation on the part of applicant in an application under Article 226 to be candid and be otherwise fair to Court so as not to mislead the Court. The Doctrine of Uberrima Fides has its fullest application in a petition under Article 226. The Court is not to use a discretion in the event of there being any attempt on the part of the petitioner to mislead the Court.
26. The Bench further held:
The application of the Doctrine of Uberrima Fides in a writ petition praying, inter alia, for issuance of a high prerogative writ has been recognized since the decision of the Court of Appeal is the King's Bench Division (KBD) in the case of Rex v. Kensington Income Tax Commissioners, Princess Edmond De Polignac, exparte 1917 (1) King's Bench 486, the case of a Russian Princess.
As noted above, invocation of the power under Article 226 of the Constitution by the High Court is discretionary and the question invariably before the Court is whether, in fact, it should exercise its discretion in favour of the party or not? And it is on this context that the conduct of the party has a definite and an important bearing in the exercise of discretionary power and invoking the jurisdiction under Article 226 of the Constitution. We do deem it fit to record that the High Court would always refuse to exercise its discretion in favour of an applicant if he (the applicant) makes a statement which cannot be termed to be correct or suppressed facts or being desirous of gaining an undue and unfair advantage or misleads the Court in any way. In this context 2 2008 (3) ALD 292
15 MGRJ W.P.No.11526 of 2019 reference may be made to a Full Bench decision of the Allahabad High Court in the case of Asiatic Engineering Co. v. Acchree Ram, (AIR 1951 ALL 746) as also the Full Bench decision of the Kerala High Court in the case of Ananthun Pillai v. State of Kerala (1968) II LLJ 657) and the Division Bench judgment of Calcutta High Court in the case of Jiban Krishna Karmakar v. State of West Bengal, 1992 CWN 226 (DB) and the observations made therein do lend concurrence to the views expressed above.
27. While dealing with the scope of Article 136 of the Constitution of India, the Supreme Court in Hari Narain v. Badri Das (1964) 2 scr 203 held as under:
It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked.
28. In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc. , ((1983) 3 SCR 674) the Supreme Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. In G. Narayanaswamy Reddy and Ors. v. Governor of Karnataka and Anr.(1991) 2 SCR 563), the Supreme Court declined relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act on account of interim stay order passed in a writ petition. The observations made by the Supreme Court in that context are apt to be reproduced herein below:
It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed.
16 MGRJ W.P.No.11526 of 2019
29. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Ors. (AIR 1994 SC 85), the Supreme Court held that where a preliminary decree was obtained by playing fraud on the Court in-as- much as a vital document was withheld in order to gain advantage on the other side, such party deserves to be thrown out at any stage of the litigation.
In view of the above discussion, this writ petition is devoid of any merits and liable to be dismissed and this court found that the petitioners approached this court with unclean hands. Hence, the petitioners are not entitled for any relief under Article 226 of the Constitution of India, which is extraordinary and highly discretionary which has to be exercised sparingly in the public interest. The writ petition is liable to be dismissed.
Accordingly, the writ petition is dismissed with costs of Rs.10,000/- (Rupees ten thousand only) payable by the petitioner to the Andhra Pradesh High Court Legal Services Authority, within a period of four (4) weeks from the date of receipt of a copy of the order.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________ M. GANGA RAO, J Date: 26-08-2020 Ksn