Andhra Pradesh High Court - Amravati
Seemakurthi Veera Venkata Subba Rao, vs The State Of Andhra Pradesh, on 25 August, 2022
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.7030 of 2019
JUDGMENT:-
Heard Sri G.R.Sudhakar, learned counsel for the petitioner. Sri G.Naresh Kumar, learned counsel, representing Sri M.Manohar Reddy, learned Standing Counsel for the respondent Nos.2 and 3, Narsapuram Municipality and Sri J.Sarath Chandra for the unofficial respondent Nos.4 and 5.
2. This writ petition under Article 226 of the Constitution of India has been filed for the following relief:-
"In view of the facts and circumstances, it is humbly prayed that this Hon'ble Court may be pleased to issue an appropriate Writ, Order, Direction more particularly one the nature of Writ of Mandamus declaring the action of the respondents 2 and 3 herein in not taking any action in pursuance of the notices U.C.No.02/2019/TPS-2, TPBO TPS- 2, Dt. 22.05.2019 and B.A.No.1077/0056/B/NMC/SS/2019, Dt. 22.05.2019 issued by the 2nd Respondent is illegal, arbitrary and violative of Articles 14, 21 and 300-A of Constitution of India and consequently direct the respondents 2 and 3 to forthwith demolish the illegal structures and encroachments situated in D.No.7610, Swarajya Ramam Street, 10th ward, Narsapuram Municipality, Narsapuram, West Godavari District raised by the respondents 4 and 5 contrary to the sanctioned plan and to pass and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
3. Sri G.R.Sudhakar, learned counsel for the petitioner submits that the petitioner is the owner of the land admeasuring 73.6 square yards and in possession thereof as also the house 2 respondent Nos.4 and 5 situated towards south of the petitioner's property and is divided into two (02) plots. The said respondents started raising constructions with deviations and contrary to the building permit order, encroaching upon the pathway. The respondent No.5 is raising construction even without any building permit and has also demolished part of the petitioner's wall and the roof of the tiled house. The petitioner approached the official respondent No.2 by filing application dated 18.05.2019 requesting to initiate appropriate proceedings against the respondent Nos.4 and 5 upon which the respondent No.2 got conducted an enquiry and issued notices U.C.No.02/2019/TPS-2, TPBO TPS-2, dated 22.05.2019 and B.A.No.1077/0056/B/NMC/SS/2019, dated 22.05.2019 to said respondents. It is further submitted that in the enquiry report, deviations were clearly indicated as also that the respondent No.5 raised construction without any building permit, and the respondent No.5 encroached the passage which facts have been indicated in the notices issued to the respondent Nos. 4 and 5.
4. Learned counsel for the petitioner further submits that in spite of the notices, the respondent Nos.4 and 5 did not stop construction work and the official respondents also did not proceed any further in the matter. In the present writ petition vide interim order dated 07.06.2019, the respondent Nos.4 and 5 were directed to maintain the status quo with regard to the construction but in spite thereof the respondents continued the construction work and consequently, the petitioner filed C.C.No.535 of 2019.
5. Sri G.Naresh Kumar, learned counsel for respondent Nos.2 3 respondent No.4 was found to be unauthorized and by respondent No.5 without obtaining any permit order, notices under Section 217 (1) & 228 (1) of the Municipalities Act were issued on 22.05.2019, but the respondents failed to comply with the notice. He further submits that when the authorities of the Municipality attempted to demolish the deviated portion and the unauthorized constructions, the respondent Nos.4 and 5 assured that they will themselves remove the same, but did not do so.
6. Sri J.Sarath Chandra, learned counsel for the respondent Nos.4 and 5 submits that there is no deviation in the building construction nor the property of the petitioner is being damaged. He submits that the pathway as alleged in the writ petition is not the public way but is being used commonly by petitioner as also the respondent Nos.4 and 5. He submits that the dispute between the petitioner and the respondent Nos.4 and 5 is of private nature with respect to the private property for which the petitioner should approach in the civil suit. He submits that the Act confers discretion on the Commissioner in passing the Order and no direction can be given to the Commissioner to exercise such discretion by this Court.
7. Sri J. Sarath Chandra, further submits that under Section 218-A of the Act, the Commissioner has the power to regulate the constructions in contravention of the permit order or even the constructions raised without permit.
8. Learned counsels for all the parties submit that any final order has not been passed by the Commissioner, pursuant to the notices dated 22.05.2019 issued to the respondent Nos.4 and 5. 4
"This writ petition is filed questioning the action of respondents No.2 and 3 in not taking any action pursuant to the notices dated 22.05.2019 and 22.05.2019 issued by the second respondent as arbitrary and illegal.
The case of the petitioner is that the respondents No.4 and 5 are making constructions by encroaching a portion of his land and also the passage and that even after issuing notices, the respondents 4 and 5 are proceeding with the construction and the 2nd and 3rd respondents are not taking any action after giving such notices dated 22.05.2019.
As seen from the notices, there is a deviation of 84.92 meters and an unauthorized construction.
In view of the same, respondents No.4 and 5 are directed to maintain status quo with regard to the construction for a period of two (2) weeks.
Learned counsel for the petitioner is permitted to take out notice on respondents No.4 and 5 by Registered Post Acknowledgment Due returnable within a period of ten days and file proof of the same.
Learned Standing Counsel appearing for respondents No.2 and 3 seeks one week time to get instructions in the matter.
List the matter after filing proof of service."
10. On 21.08.2019, this court passed the following interim order:-
"This Writ Petition is filed questioning the action of the respondents 2 and 3 in not taking any action against the respondents 4 and 5 even though they issued notices on 22.05.2019 as arbitrary and illegal.
On 07.06.2019, this Court directed the respondents 4 and 5 to maintain status quo with regard to construction for a period of two weeks and the learned counsel for the petitioner was permitted to take out notice on respondents 4 and 5. Accordingly, notices were served on the respondents 4 and 5.
Counter affidavit is filed on behalf of respondents 4 and 5.5
being made by the respondents 4 and 5, they are still proceeding with the construction and that the petitioner also filed a Contempt Case bearing No.535 of 2019 with regard to the same.
In view of the facts and circumstances of the case, list the matter after six (6) weeks.
Till then, interim orders granted on 07.06.2019 and 25.06.2019 are extended.
The second respondent is directed to file an affidavit with regard to compliance of the interim orders dated 25.06.2019 by the next date of hearing."
11. The respondent No.2 has filed the counter affidavit. Para Nos.4 to 6 of the counter affidavit are reproduced as under:-
"4. It is submitted that in pursuance of the proceedings when the officials of this Respondent Municipality attempted to demolish the deviated portion and so also the unauthorized constructions, the Respondent 4 and 5 assured that they will remove the deviations in order to avoid damage to the remaining building, but failed to do so. I further submit that this Respondent Municipal authorities already got removed the compound wall and the steps constructed into the encroachment portion.
5. It is to further submitted that the deviations and the unauthorized constructions made by the Respondents 4 and 5 are liable to be removed and this Respondent has been initiating necessary arrangement to remove the unauthorized construction and deviations and those proceedings are pending.
6. It is submitted that besides issuing required notices as prescribed under the provisions of A.P. Municipalities Act, 1965, this Respondent also filed Criminal Cases against the Respondents 4 and 5 before Additional Judicial First Class Magistrate's Court, Narasapuram under S.R.Nos.10251/2019 and S.R.Nos.10253/2019 respectively and those cases are yet to be numbered."
12. Section 217 (1) & (2) of the Municipalities Act read as under:- 6
(a) is otherwise than in accordance with the plans or specifications which have been approved; or
(b) contravenes any of the provisions of this Act or any bye-
law, rule, order or declaration made thereunder, he may, by notice, require the owner of the building within a period stated either--
(i) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans or provisions; or
(ii) to show cause why alterations should not be made. (2) If the owner does not show cause as aforesaid, he shall be bound to make the alterations specified in such notice."
13. Section 217 (1) provides that if the Commissioner finds that the work is otherwise than in accordance with the plans or specifications which have been approved or contravenes any of the provisions of the Act or any bye-law, rule, order or declaration made thereunder, he may by notice require the owner of the building within a specified period to make such alterations as may be specified in the notice with the object of bringing the work into conformity with the plans or provisions; or to show cause why alterations should not be made. Sub-Section (2) of Section 217, provides that if the owner does not show cause, he shall be bound to make the alterations specified. In other words, if the reply is not filed to the notice, the owner is bound to make the alterations. As per sub-Section (3), if the owner shows cause pursuant to the notice under sub-Section (1), the Commissioner by an order cancel the notice or confirm the same subject to such modifications as he may think fit. If the Commissioner is satisfied with the explanation, he shall cancel the notice. But, if he is not satisfied, he shall confirm the notice either subject to the alternations as 7
14. Section 228 reads as under:-
"228. Demolition or alteration of building work unlawfully commenced, carried on or completed:- (1) If the Commissioner is satisfied--
(i) that the construction or reconstruction of any building or well--
(a) has been commenced without obtaining the permission of the Commissioner or the Chairperson as the case may be, or where an appeal has been made to the council, in contravention of any order passed by the council; or
(b) is being carried on, or has completed, otherwise than in accordance with the plans or particulars on which such permission or order was based; or
(c) is being carried on, or has been completed, in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
(ii) that any alterations required by any notice issued under Section 217 have not been duly made; or
(iii) that any alteration of or addition to any building or any other work made or done for any purpose into or upon, any building, has been commenced or is being carried on or has been completed in breach of Section 227, he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as in the opinion of the said officer, has been unlawfully executed or to make such alterations as may, in his opinion, be necessary to bring the work into conformity with the Act, bye-laws, rules, direction or requisition as aforesaid or with the plans and particulars on which such permission or order was based;
and may also direct that until the said order is complied with, the owner or builder shall refrain from proceeding with the building or well.
(2) The said officer shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well, together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as [he thinks fit] to make, and such order shall then be binding on the owner."
8to pass the provisional order and at the same time giving notice, calling the explanation of the owner and if, after service of the notice, the owner fails to show cause to the satisfaction of the Commissioner, he may confirm the order with such modification as he thinks fit and such order shall be binding on the owner. So, Section 228 also requires the Commissioner to pass final orders.
16. In view of the aforesaid legal provisions the Commissioner is under statutory duty under the Municipalities Act, 1965, to ensure that any illegal or unauthorized construction, contrary to the building plan, is not raised. If it is brought to his notice that any such act is taking place or has taken place he has to discharge the duty imposed upon him by the Act, 1965.
17. In the present case, the Commissioner having issued the notice under Sections 217 (1); 228 (1) dated 22.05.2019, ought to have proceeded further as per law and have taken final decision.
18. There is no discretion left in the Commissioner to finalize or not to finalize the proceedings. The statutory duty has to be discharged as imposed by the statute. The Commissioner has failed to discharge the statutory duty by not passing any final order. If the statutory authority fails to discharge its duty, direction can certainly be issued by this Court. The submission of the learned counsel for the respondent Nos.4 and 5 to the contrary is misconceived which cannot be accepted.
19. So far as the submission of the petitioner's counsel, based on Section 218-A is concerned, the Section 218-A reads as under:-
"218-A. Regulation and penalization of construction of buildings in deviation of sanctioned plan:-- Notwithstanding 9 unauthorisedly or in deviation of the sanctioned plan [as on 31-12-2014] as a one time measure, as per the procedure and by levying such penal amount as may be prescribed and upon payment of such amount, all pending or contemplated proceedings and action of enforcement shall be deemed to have been withdrawn and the competent authority shall issue necessary Occupancy Certificate to the owner or the individual as the case may be."
20. A bare reading of Section 218-A shows that its applicability is confined to the constructions existing on 31.12.2014 as one time measure. This provision does not deal with the constructions raised after 31.12.2014. It is not the petitioner's case that the constructions existed on 31.12.2014. Therefore, the submission of the learned counsel for the respondents No.4 and 5 based on Section 218-A is misconceived.
21. So far as the submission of the learned counsel for the respondent Nos.4 and 5 that the dispute pertains to the private path way and not the public pathway under the control of the municipality and as such the petitioners should approach in civil suit is concerned, the same also deserves rejection. This Court is not determining the nature of the land whether private or public pathway but once the proceedings with respect to the land in question has been initiated by the Commissioner under the Municipality Act and notices have been issued, it is for the Commissioner to pass final orders in accordance with law on consideration of the reply/explanation submitted by the noticee.
22. Thus considered the Commissioner/respondent No.2 is directed to expeditiously decide the pending proceedings and pass final orders in accordance with law after affording opportunity of 10 this order before the respondent No.2 and till the final decision is so taken by the Commissioner, the parties shall maintain status quo with regard to the constructions.
23. The writ petition is disposed of finally with the directions as aforesaid.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
__________________________ RAVI NATH TILHARI,J Date: 25.08.2022 SCS 11BbBBBB744664465 ] 11 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI 136 WRIT PETITION No.7030 of 2019 Date: 25.08.2022 Scs