Andhra Pradesh High Court - Amravati
Shaik Eeshwaramma, vs The State Of Andhra Pradesh, on 11 October, 2022
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.20248 of 2022
JUDGMENT:-
1. Heard Sri T.B.L.Murthy, learned counsel for the petitioners and learned Government Pleader for Municipal Administration for the respondent Nos.1 and 2, Sri N.Ranga Reddy, learned Standing counsel for the respondent Nos.3 to 5, learned Government Pleader for Home for the respondent No.6 and Sri M.Delhi Babu, learned counsel for the respondent Nos.7 and 8.
2. Inspite of last opportunity granted to the respondent Nos.7 and 8 to file counter affidavit, the same has not been filed. Sri M.Delhi Babu, learned counsel prays for further time to file counter affidavit, but in view of the order dated 13.09.2022, the prayer is rejected.
3. With the consent of the parties counsels, the writ petition is being disposed of finally at this stage.
4. This writ petition under Article 226 of the Constitution of India has been filed for the following relief:-
"For the reasons stated above, it is prayed that the Hon'ble Court may be pleased to issue an order or direction especially one in the nature of WRIT OF MANDAMUS declaring the action of the Respondent 2 Authorities in not adhering to the orders passed by them in two endorsements vide R.O.C.No.992/2020-G1 and R.O.C.No.956/2020-G1 on 01.10.2020 and on 03.10.2020 respectively and allowing the unlawful encroachment and the unauthorized and illegal construction of the "Individual Residential Building" at Door No.9-222, Sreeramulupeta Street, Proddatur Town, YSR Kadapa District and not demolishing the encroached part of the said building that is illegally constructed by the 7 th and 8th Respondents as arbitrary, capricious, irrational, contrary to law, illegal and violative of Articles 14, 21 and 300-A of the Constitution of India and consequently direct the Respondent Authorities to adhere to the orders passed in the aforementioned endorsements vide R.O.C.No.992/2020-G1 and R.O.C.No.956/2020-G1 on 01.10.2020 and on 03.10.2020 respectively and to stop the illegal construction and thereby demolish the already illegally constructed part of the Individual Residential Building at Door No.9-222, Sreeramulupeta Street, Proddatur Town, YSR Kadapa District pending disposal of the Writ Petition and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
5. The petitioners are seeking direction against the official respondents to adhere to the orders passed by them in the endorsements dated 01.10.2020 and 03.10.2020.
6. Learned counsel for the petitioners submits that the petitioners are the absolute owners of Ac.0.16 cents residential house of RCC Roof (G+2) and open land at H.No.9/221 of 3 Proddatur Village, Sreeramulupeta Street, Proddatur Town, YSR Kadapa District. It was purchased by them in 1995 vide registered document No.1021 of 1995 and document No.1022 of 1995, dated 03.02.1995 from one Sri P.Krishna Rao. He further submits that at the time of registration, a small piece of open land called "Varasandu/Left-Sided Passage" which is situated in the western side of the petitioners' house was included in the registered document by which the petitioners purchased the subject property and consequently the petitioners are also the owners of the said land. It was regularized in the building plan dated 01.05.2000 under G.O.Ms.No.240, M.A. dated 22.05.1996, which is to be used by them.
7. Learned counsel for the petitioners further submits that the respondent Nos.7 and 8 are the owners of house site vide Door No.9-222, Sreeramulu Peta Street, Proddatur, YSR Kadapa District. They acquired permission from the municipal authorities for construction of house on their house site on 19.07.2019 and started construction. While raising construction, they deviated from the building plan and also dig certain part, abutting the petitioners building, which was objected by the petitioners. The petitioners also approached the respondent No.3, the Municipal Commissioner of Proddatur Municipality vide complaint dated 21.09.2020 followed by 4 subsequent complaints. Upon the petitioners' complaint, the respondent Nos.7 and 8 were issued notice/provisional order under Section 217 (1) & (2) and Section 340 (a) of the Andhra Pradesh Municipalities Act, 1965 (for short, the Act 1965). Thereafter the confirmation notice dated 01.10.2020 was also issued to those respondents. Since no further action was taken pursuant to the aforesaid provisional order/notices, the present petition was filed.
8. Sri N.Ranga Reddy, learned Standing counsel submits that the respondent Nos.7 and 8 obtained plan approval for residential building. In the approved plan copy also Varasandu was mentioned only in the schedule of the property without any particular measurements. After verification of Encumbrance Certificate, submitted by the respondents survey was directed and the Town Surveyor submitted survey report dated 21.01.2022, which showed that the petitioners constructed their house occupying Varasandu site. Referring to the counter affidavit he submits that the respondent Nos.7 and 8 constructed their house with deviation contrary to the sanctioned plan. Consequently, notice/provisional order under Section 217 (1) & (2) of the Andhra Pradesh Municipalities Act vide R.No.3387, dated 21.09.2020 was issued to the respondent Nos.7 and 8. Later on the confirmation notice 5 R.O.C.No.992/2020-G1, dated 1.10.2020 was also issued to those respondents.
9. Sri N.Ranga Reddy, learned Standing counsel further submits that pursuant to the notices the work was immediately stopped by the respondents and at present no work is going on, which fact has been disputed by the learned counsel for the petitioners, who submits that the construction is still going on, whereas Sri M.Delhi Babu for the respondent Nos.7 and 8 submits that the construction had already been raised.
10. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
11. It transpires from the record as also the submissions advanced that on the petitioners' complaint the order under Section 217 (1) & (2) of the Andhra Pradesh Municipalities Act, 1965 was passed on 21.09.2020, mentioning the deviations in the construction of the building by the respondent Nos.7 and 8 contrary to the sanctioned plan and requiring those respondents to stop the construction work as also to remove the deviation portion immediately. Time was also granted to them to file reply as to why the provisional order be not confirmed. Subsequently, the confirmation notice dated 01.10.2020 was again issued to the respondent Nos.7 and 8 under Section 217 6 (1) & (2) of the Act 1965, mentioning that they did not respond to the provisional order/notice dated 21.09.2020. Any reply was not filed and the constructions/structure was unauthorized without prior permission and if the same is not removed/demolished the provisional notice shall be confirmed under section 217 (3) of the Act, 1965.
12. Sri N.Ranga Reddy, learned Standing counsel submits that after the confirmation notice dated 01.10.2020, no further orders have been passed by the Municipal Corporation.
13. Since the date of the confirmation notice under Section 217 (1) & (2) of the Act dated 01.10.2020 more than 2 years have passed, but till date the final order has not been passed by the respondent No.3. As submitted by the learned counsel for the respondent Nos.7 and 8, the construction has been completed.
14. Section 217 of the Andhra Pradesh Municipalities Act, 1965 provides as under:-
"217. Power to require alteration of work:-
(1) If the Commissioner finds that the work--
(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--7
(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.
(3) If the owner shows cause as aforesaid, the Commissioner shall by an order cancel the notice issued under sub-Section (1), or confirm the same subject to such modifications as he may think fit."
15. Sub-Section (1) of Section 217 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 and declaration made thereunder, he may, by notice, require the owner of the building within a period specified either 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 as to why alterations should not be made.
16. The sub-Section (2) of Section 217, provides that if the owner does not show cause to the notice issued under sub- Section (1), he shall be bound to make the alterations specified in the notice.
8
17. Sub-Section (3) of Section 217, provides that if the owner shows cause the Commissioner shall by an order cancel the notice issued under sub-Section (1) or confirm the same subject to such modifications as he may think fit. In other words, if the reply submitted by the owner is satisfactory, the Commissioner shall cancel the provisional order, but if he is not satisfied with the reply, he shall confirm the provisional order either with or without modifications.
18. The mandatory duty, therefore, has been cast on the Commissioner under Section 217 (3) to pass the order of confirmation or to cancel the provisional order depending upon the sufficiency of the cause shown in response to the notice. The Commissioner cannot sit tight over the matter after issuing notices under Sections 217 (1) or/and (2), without passing any order under Section 217 (3) of the Act.
19. In the present case, the Commissioner has proceeded only up to the stage of show cause notice under sub-Sections (1) and (2) of the Section 217. Two notices were given. One on 21.09.2020 and the second on 01.10.2020, but since thereafter the matter has not been finalized.
20. Submission of the petitioners' counsel that the building construction is not as per the building plan and there are deviations as found in the provisional order as also the 9 submission to the contrary of the learned counsel for the respondent Nos.7 and 8 are not being considered for the time being in the present petition as the matter is already pending before the Commissioner.
21. The provisional notice shows that the respondent Nos.7 and 8 were directed to stop the construction work.
22. It therefore transpires, prima facie, that the provisional order of the Commissioner has not been obeyed and the Commissioner also failed to discharge the statutory duty under Section 217 (3) of the Act by failing to pass final orders as also in ensuring the compliance of his provisional order. Such a situation should not have arisen if the respondent No.3 had finally discharged his statutory duty under Section 217 (3).
23. In the facts and circumstances of the case, the writ petition is being disposed of with directions issued to the Commissioner, the respondent No.3, to pass final orders under Section 217 (3) of the Act, 1965 pursuant to the provisional order/notice dated 21.09.2020 and the confirmation notice dated 01.10.2020, in accordance with law, after according opportunity of hearing to the petitioners as also the respondent Nos.7 and 8.
24. The respondent Nos.7 and 8 are already possessed of the notices dated 21.09.2020 and 01.10.2020 as the copy of the 10 counter affidavit along with copy of the notices dated 21.09.2020 and 01.10.2020 annexed to the counter affidavit, filed by respondent No.3, has already been received by them no fresh notice is to be issued to those respondents. They shall be at liberty to file response to the notices within a period of ten (10) days from receipt of copy of this order. The Commissioner shall pass final order as aforesaid within a period of four (04) weeks from the date of receipt of reply of the respondent Nos. 7 and 8 along with copy of this order. If no reply is filed by the respondent Nos.7 and 8, within the aforesaid period still the Commissioner shall pass final orders within the same period.
25. It will also be open for the Municipal Corporation to initiate appropriate action and conclude the same, under any other provision of the Andhra Pradesh Municipalities Act & the Rules thereunder, as may be applicable for violation, if any, of the provisional order/notices dated 21.09.2020 & 01.10.2020 as per law.
26. The writ petition is disposed of finally with the above observations and directions. No order as to costs. 11 As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
__________________________ RAVI NATH TILHARI,J Date: 11.10.2022 Note:-
Issue C.C in two (02) weeks B/o SCS FFFFFFFFFHGH 12 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI 187 WRIT PETITION No.20248 of 2022 Date: 11.10.2022 Scs