Andhra Pradesh High Court - Amravati
Mrs. Kota Alivelu Manga, vs The State Of Andhra Pradesh, on 26 March, 2024
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION No.7187 of 2024
Kota Alivelu Manga, W/o Y.Ravi Shankar, age
40 years, Occ: Household and properties, R/o
75-11-159/1, Punnami Ghat, Bhavanipuram,
Vijayawada.
... Petitioner.
Versus
The State of Andhra Pradesh, Rep. by its
Principal Secretary, Municipal Administration
& Urban Development Department, A.P.
Secretariat, Velagapudi at Amaravathi, Guntur
District and two others.
... Respondents.
Counsel for the petitioner : Sri P.A.Seshu
Counsel for respondent No.1 : GP for Municipal Administration &
Urban Development
Counsel for respondents 2 & 3 : Sri M.Manohar Reddy
ORDER
The Writ Petition is filed seeking the following relief:
"... to issue an appropriate Writ, direction or order, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents 2 and 3 in threatening to demolish the building consisting of Stilt + Ground Floor + 2 Upper Floors constructed vide building permission No.1073/1961/B/VMC/VID/2021 situated Page 2 of 16 SRSJ WP No.7187 of 2024 in D.No.75-11-159/1, Balabaskar Nagar, Punnami Ghat, Bhavanipuram, NTR District without any prior notice or opportunity and in spite of representation dated 15.03.2024 and 08.06.2022 submitted to the respondent No.2 for regularization and also in spite of penalty amount of Rs.6,00,000/- paid on 01.03.2023 in the complaint filed by the 2nd respondent in C.C.No.582 of 2022 on the file of Court of the VII Addl. Metropolitan Magistrate (Municipal Court), Vijayawada towards fine/compensation pertaining to notices u/s.452(1), 452(2), 461(1), 461(2), 464(4) of the A.P. Municipal Corporation Act, 1955, as arbitrary, illegal, unjust and violative of Articles 14, 21, 19 and 300A of the Constitution of India besides in violation of principles of natural justice and in breach of statutory provisions of law and building bye laws and rules in the interest of justice ... ..."
2. a) Petitioner was granted permission to construct Stilt+Ground+2 upper floors vide building permit order No.1073/1961/B/VMC/VID/2021 dated 16.10.2021 in an area admeasuring 195.13 square meters, RS/TS No.6, Premises No.75-11-159/1, Vidyadharapuram, Vijayawada.
b) Provisional Order vide Notice No.389/1073/VMC/UC/2022 dated 17.03.2022 was issued to petitioner by the Town Planning Officer under Section Page 3 of 16 SRSJ WP No.7187 of 2024 452(1) & 461(1) of the Municipal Corporation Act, 1955 (for short "the Act") and Section 115(1) & (2) and 116 (1) of the Andhra Pradesh Capital Region Development Authority Act, 2014 (for short "CRDA Act"), pointing out deviations/violation regarding construction. Deviations pointed out are setbacks qua the permission and construction. Another Provisional Order vide Notice No.681/1073/VMC/UC/2022 dated 21.05.2022 was issued to petitioner under Section 452(1) & 461(1) R/W 428, 429 of the Act and Section 115(1) & (2) and 116 (1) R/W 108 of the CRDA Act, pointing out deviations/violation regarding construction at Door No.75-11-159/1. In the said provisional order, it was specifically pointed out constructing residential building Third Floor on the existing Ground+2 Floor and directed the petitioner to submit explanation within seven days.
c) No explanation was submitted by the petitioner.
Hence, Confirmation Order vide Notice No.389/1073/VMC/UC/2022 dated 07.06.2022 was issued under Section 452(2) & 461(2) of the Act and Section 115(3) of the CRDA Act. Another Confirmation Order vide Notice Page 4 of 16 SRSJ WP No.7187 of 2024 No.681/1073/VMC/UC/2022 dated 21.05.2022 was issued to petitioner under Section 452(2) & 461(2) R/W 428, 429 of the Act and Section 115(3) R/W 108 of the CRDA Act.
d) In the confirmation orders, the petitioner was directed to bring down the construction into the rule frame within seven days, lest action will be initiated in accordance with law. Petitioner received the confirmation orders on 08.06.2022.
e) The petitioner, as per Ex.P5, made representation admitting construction of building with deviation and also additional floor and requested the authority to regularize the building under BPS Scheme. Pursuant to provisional order dated 21.05.2022 and confirmation order dated 07.06.2022 (construction of additional floor) upon by considering the explanation of petitioner dated 08.06.2022 an order was passed vide Notice No.681/1073/VMC/UC/2022 dated 19.11.2022 under Section 452(2) & 461(4) of the Act.
f) A criminal case vide C.C.No.582 of 2022 on the file of III Metropolitan Magistrate, Vijayawada was filed under Section 200 of Cr.P.C and Section 461 of the Act. After trial, Page 5 of 16 SRSJ WP No.7187 of 2024 the petitioner herein was sentenced to pay a fine of Rs.6,00,000/- i.e. not less than 50% of value of illegal construction, calculated in Calculation Sheet i.e. Rs.11,74,432/-, in default of payment of fine, accused shall suffer simple imprisonment for a period of three months. Accordingly, it seems petitioner paid the fine amount.
g) In the affidavit, it was contended that on 09.03.2024, respondents 2 and 3 sent their staff to the building and threatened to demolish the building without any notice. Again on 16.03.2024, the staff of respondents took measurements to remove the alleged deviation and setbacks. Aggrieved by the same, the above writ petition is filed.
3. Heard Sri P.A.Seshu, learned counsel for petitioner and Sri G.Naresh Kumar, learned counsel representing Sri M.Manohar Reddy, learned standing counsel for respondents 2 and 3.
4. Learned counsel for petitioner would submit that no prior notice was issued after the proceedings dated 19.11.2022. He would also submit that the application submitted by the petitioner seeking regularization under Page 6 of 16 SRSJ WP No.7187 of 2024 Section 452A of the Act is pending. He would submit that construction was completed in the month of September 2022 and the building was assessed to tax. Hence, Section 452 of the Act has no application, since the construction of the building was completed.
5. Learned counsel for respondents 2 and 3 would submit that provisional orders were issued and later, confirmation orders were also issued. After confirmation orders, the petitioner submitted an explanation and after considering the said explanation, final order was passed on 19.11.2022 to comply with the directions as per the confirmation orders within seven days. He would also submit that payment of fine in a criminal case will not entitle the petitioner for regularization. Likewise, mere payment of tax does not amount to regularization of the building. He would submit that no application seeking penalization building is pending. In fact, no such scheme is in force. He would submit that Section 452A of the Act does not apply to the case at hand and in fact, the petitioner constructed an extra floor and hence, the Commissioner does not have power to regularize under Section 452A of the Act. He would also submit that Page 7 of 16 SRSJ WP No.7187 of 2024 the Commissioner could exercise jurisdiction in respect of setbacks in the floor area, but not extra floor.
6. Now, the points for consideration are:
1) Whether the respondents 2 and 3 followed the procedure mandated under the Act qua provisional order and confirmation proceedings?
2) Whether a separate show cause notice is required after confirmation orders dated 07.06.2022?
7. Undisputed facts, as seen from the affidavit and the material papers filed along with writ petition, are that petitioner was granted permission to construct Stilt+Ground+2 upper floors vide building permit order No.1073/1961/B/VMC/VID/2021 dated 16.10.2021 in an area admeasuring 195.13 square meters, RS/TS No.6, Premises No.75-11-159/1, Vidyadharapuram, Vijayawada.
8. The first provisional order was issued on 17.03.2022 pointing out deviations regarding setbacks and built-up area. The confirmation order was issued on 07.06.2022. Another provisional order dated 21.05.2022 was issued pointing out construction of extra third floor and built-up area. The Page 8 of 16 SRSJ WP No.7187 of 2024 confirmation order was issued on 07.06.2022. Thus, two provisional orders and two confirmation orders were issued to the petitioner by the authority. The petitioner received the confirmation orders on 08.06.2022 and made representation to the authority to regularize the building under BPS Scheme. Explanation given by petitioner reads thus:
"I Alivelu Manga Kota have site near Punnamyghat area comes under survey no.6 with building permission number 1073/1961/B/VMC/VID/2021 due to some personal reasons I have constructed my building with deviation and additional floor. So please grant me permission for regularization my building under BPS scheme".
9. After considering the explanation, an order was passed on 19.11.2022. The said proceedings were filed along with writ petition as Ex.P4. Ex.P4 is a combination of earlier sets of provisional orders and confirmation orders. In Ex.P4, deviation in setbacks as well as construction of third floor was mentioned. In fact, the petitioner also constructed the height of building to 12 meters than sanctioned height of 9 meters. By proceedings dated 19.11.2022, the authority directed the petitioner to comply with the provisional order dated 21.05.2022 and confirmation order dated 07.06.2022. Page 9 of 16
SRSJ WP No.7187 of 2024 Since the petitioner failed to comply with the same, a private complaint was filed before III Metropolitan Magistrate, Vijayawada vide C.C.No.582 of 2022 and the learned Magistrate convicted the petitioner and sentenced to pay a fine of Rs.6,00,000/- in default to suffer simple imprisonment for a period of three months.
10. Thus, as seen from the above events, the respondent authorities followed the procedure mandated under the Act i.e. issuance of provisional orders, confirmation order and thereafter considered the explanation of petitioner and passed order dated 19.11.2022. The authorities also lodged a criminal complaint. Petitioner for the best reasons known did not challenge the confirmation orders dated 07.06.2022 and proceedings dated 19.11.2022.
11. The contention of learned counsel for petitioner that the authorities are threatening to demolish the structure without show cause notice, in view of discussion supra, falls to ground. The authorities followed the procedure mandated under the Act. In fact, petitioner made a representation dated Page 10 of 16 SRSJ WP No.7187 of 2024 08.06.2022 seeking regularization under BPS Scheme, however, no such scheme is in operation or force.
12. It is pertinent to mention here that in Paragraph-5 of the affidavit petitioner pleaded, on oath, that construction was started and completed Stilt+Ground+2 upper floors and completed the building by August/September, 2022 and the respondent authorities have assessed the property to the tax. Thus, the petitioner made a false statement on oath qua construction of building. The petitioner has constructed an extra floor, however, did not disclose the same in the affidavit. Surprisingly, the petitioner proceeded to contend that proceedings dated 19.11.2022 is not maintainable, as there is no prior notice contemplated under Section 452 (1) and 461 of the Act. Thus, the writ petition is also liable to be dismissed on the ground of suppresio veri expression falsi and also approaching the court with unclean hands.
13. The contention of learned counsel for petitioner that action of respondent-authorities threatening to demolish the structure after 16 months of proceedings dated 19.11.2022 without prior notice is unjust and illegal, is meritless. In fact, Page 11 of 16 SRSJ WP No.7187 of 2024 the authorities, pointed out violations of setback and construction of extra floor in the provisional order dated 17.03.2022 and confirmation order was passed separately on 07.06.2022. Like that the petitioner was also informed about violation of construction of extra third floor by provisional order dated 21.05.2022 and confirmation order was passed on 07.06.2022. The petitioner raised ground No.4 in the affidavit, even without verifying the said fact from the notices, though they were filed along with writ petition.
14. The contention of the petitioner that the Commissioner is competent to regularize the violated floor area in respect of Non-High Rise buildings under Section 452A of the Act is also meritless.
15. For better appreciation, it is apt to extract Section 452A of the Act.
452-A. Regularisation of violation of floor area of Non-High Rise Buildings.--Any contravention of Section 452 in respect of Non-High Rise Buildings may be regularised by the Commissioner or any officer authorised by the Commissioner in this behalf to the extent of violated floor area made to the setbacks on each side of each floor except building line upto ten percent of the permissible setbacks, on payment of fine equivalent to one hundred percent of the value of the land as fixed Page 12 of 16 SRSJ WP No.7187 of 2024 by the Registration Department applicable at the time of regularisation in respect of violated floor area subject to the condition that sanctioned plan has already been obtained in each case. (emphasis is mine)
16. A careful perusal of the extracted provision would indicate that the Commissioner or any authorized officer may regularize to the extent of violated floor area made to the setbacks on each side of each floor except building line upto ten percent of the permissible setbacks. The words employed in the section "to the extent of violated floor area made to the setbacks on each side of each floor" are clear and unambiguous. Thus, the language employed in Section 452A is clear that regularization is to the extent of violated floor area made to the setbacks on each side of each floor, but not separate floor.
17. Rule 2 (74) of the Andhra Pradesh Building Rules, 2017 defines Floor Area, means, covered area of a building at any floor level. Thus, the contention of learned counsel for petitioner that as per Section 452A of the Act, the Commissioner got powers/jurisdiction to regularize extra floor is meritless. The payment of the fine amount pursuant to judgment in C.C.No.582 of 2022 also does not amount to Page 13 of 16 SRSJ WP No.7187 of 2024 regularization. In fact, it is settled law that payment of tax will not amount to regularization qua the constructions made in violations. In fact, the petitioner made representation filed as Ex.P13 seeking regularization under BPS Scheme. However, learned standing counsel for respondents 2 and 3 would submit that such scheme is not available.
18. In 3 ACES, Hyderabad Vs. Municipal Corporation of Hyderabad1, the composite High Court of Andhra Pradesh held thus:
36. Having regard to the rampant, illegal and unauthorised constructions raised in the country as observed in State of Maharashtra's case (AIR 1991 SC 1453) (supra) before parting with this case, we would like to formulate the following guidelines to be followed by the respondent in respect of illegal constructions. The guidelines should not be treated as exhaustive but only illustrative and the discretion to be exercised by the Corporation in any given case should not be arbitrary or capricious.
1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the 1 1994 SCC OnLine AP 176 : AIR 1995 AP 17 Page 14 of 16 SRSJ WP No.7187 of 2024 Corporation only if the deviations made during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations or violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.
2) whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Section 437 of "The Act".
3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction. When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below:
(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.
(ii) In any case, there should not be any demolition after sun set and before sun rise.
(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition.
Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable Page 15 of 16 SRSJ WP No.7187 of 2024 time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises: If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition.
These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness.
In the light of the expression in the judgment referred to supra, the averment made in the affidavit qua the attempt to demolition is invented for the purpose of filing of writ petition.
19. The Hon'ble Apex Court in Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal Development,2 held thus:
16. ... The courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the fundamental rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must come with clean hands. He who comes to the Court with false claim, cannot plead equity nor the court would be justified to exercise equity jurisdiction in his favour.
20. Thus, the discussion made supra, this court comes to an irresistible conclusion that the person violated the 2 (1994) 6 SCC 241 Page 16 of 16 SRSJ WP No.7187 of 2024 building permission invoked the extra ordinary jurisdiction of this Court claiming equitable relief. If such a relief is extended, every individual violates the provisions or scheme and prays to purify it by exercising jurisdiction. Of course, this Court is conscious of the fact that if the State introduces any scheme beneficial the litigant can make use of the same. However, no such scheme is in force.
21. Since the respondent authorities followed the procedure mandated under the Act, this Court does not find any merit in the writ petition and the same is liable to be dismissed.
22. Accordingly, the Writ Petition is dismissed. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI 26th March, 2024 PVD