Andhra Pradesh High Court - Amravati
Vemuri Anusha, vs State Of Andhra Pradesh, on 24 April, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITON Nos.9701 & 10911 OF 2019
COMMON ORDER:
As both the writ petitions are filed by the same petitioner, against the same respondents, but, questioning two different proceedings issued by the second respondent, however, the contentions in both the writ petitions are identical. Therefore, I deem it appropriate to decide both the writ petitions by common order.
W.P.No.9701 of 2019 is filed questioning the Confirmation Order passed by the second respondent vide B.A.No.1104/0139/B/RNMDL/PLCH/2018 dated 16.07.2019, directing the petitioner to demolish the construction raised in Sy.No.208/5A in Palacherla Gram Panchayat, Rajanagaram Mandal, East Godavari District, as illegal, arbitrary and contrary to the principles of natural justice and violative of the provisions of Andhra Pradesh Metropolitan Region and Urban Development Authorities Act, 2016 (for short 'The Act') and consequently set aside the Confirmation Order passed by the second respondent and to regularize the deviations in the constructions, if any.
W.P.No.10911 of 2019 is filed by the very same petitioner questioning the order passed by the second respondent dated 31.07.2019 rejecting BPS Application No.BPS2019/EAS/RAJ/ PAL/37861 as illegal, arbitrary and violative of principles of natural justice and also against the provisions of G.O.Ms.No.14 MA & UD Department dated 04.01.2019 and the Andhra Pradesh 2 MSM,J W.P Nos.9701 & 10911 OF 2019 Metropolitan Region and Urban Development Authority Act, 2016 and the Andhra Pradesh Building Rules, 2017 and consequently set-aside the same.
It is the case of the petitioner that the petitioner own Ac.1-75 cents of land in Sy.No.208/5A in Palacharla Village, East Godavari District and she got converted the land from agricultural to non-agricultural with an intention to develop the said land by constructing an office-cum-Electronic Printing Press Unit. She submitted an application dated 29.12.2018 to the second respondent seeking approval for such construction. Pursuant to the same, the second respondent passed Provisional Order under Section 89(1) of the Act and the petitioner submitted reply on 29.06.2019. Thereafter, the second respondent passed the impugned order dated 16.07.2019 without proper appreciation of the facts of the case and without proper application of mind and directed the petitioner to demolish her building within seven days from the date of receipt of the order. It is contended that, though the Act provides for filing of an appeal before the Building Tribunal against such Confirmation Order, as no such Tribunal has been constituted yet, the petitioner is constrained to approach this Court.
It is also contended that, the application seeking approval for construction of a single unit/building of 'Professional Office plus Electronic Printing Press Unit' was made by the petitioner vide Building Application No. B.A.No.1104/0139/B/RNMDL/ PLCH/2018 as mandated under Section 84 of the Act and as the second respondent did not pass any orders in furtherance of the 3 MSM,J W.P Nos.9701 & 10911 OF 2019 application, the petitioner proceeded with the construction by adhering to all the applicable rules and regulations. Further, the land in which the subject construction was made, is situated in such a way that, all the lands surrounding it have ample access roads and the petitioner's site also has access roads on all sides. The subject building has access road in R.S.No.204 on the Eastern Side, in R.S.No.208/6 on Northern side; in Sy.No.208/5B on Southern Side and in R.S.No.209 on Western Side. Beyond this land, there are layouts, which have formed internal roads. This fact is evident from the Master Plan. All the surrounding plots of the subject land are as on date are vacant and the petitioner filed the FMB sketch of the land and the surrounding lands.
Without having regard to these facts, the second respondent issued Provisional Order dated 25.06.2019 under Section 89 of the Act stating that the Electronic Printing Press Building constructed by the petitioner in Sy.No.208/5A in Palacharla Gram Panchayat is illegal, as she did not obtain prior permission from the Godavari Urban Development Authority, Kakinada and that, the petitioner also did not take permission from the authority before constructing the same, thus, the second respondent herein directed the petitioner to demolish the building.
After passing of the Provisional Order, the petitioner submitted her explanation on 29.06.2019 in which she clearly explained as to how she submitted application for necessary approval and how the petitioner proceeded with construction of the building as per Section 84 of the Act. The petitioner therefore explained that the building constructed by her is not illegal and 4 MSM,J W.P Nos.9701 & 10911 OF 2019 sought for reconsideration. As the respondent was taking coercive steps without considering her reply and without passing any Confirmation Order, the petitioner filed W.P.No.8689 of 2019 before this Court and this Court vide order dated 09.07.2019 directed the respondents not to take any action without passing Confirmation Order and to follow the due process contemplated under the Act.
While the matter stood thus, the second respondent passed Confirmation Order dated 16.07.2019 received by the petitioner on 17.07.2019 on the ground that the petitioner failed to show cause to the satisfaction of the second respondent and therefore, describing the construction as unauthorized, directed her to demolish the construction within seven days from the date of receipt of the order. It is contended that the Confirmation Order suffers from non-application of mind and non-consideration of facts of the case and hence, the petitioner filed this writ petition on the ground that it is violative of principles of natural justice. Even in cases where there is deviation in the construction from the sanctioned plan, there is a provision for regularization as provided by the statute. Therefore, the person is to be given an opportunity before taking any drastic decision and no action can be taken by the Municipal Authorities/Local Bodies without following due process and therefore, the action of the respondents is illegal and sought for the reliefs stated above.
Respondent Nos. 2 & 3 filed separate counter affidavits with identical allegations. To avoid repetition, I find it appropriate to 5 MSM,J W.P Nos.9701 & 10911 OF 2019 narrate the specific pleas in the counters filed by respondent Nos. 2 & 3 in both the writ petitions.
The petitioners did not obtain statutory permission for construction of galvanized ground, first and second floor for electronic printing press unit constructed in Sy.No.208/5A in an extent of Ac.1-75 cents (7081.999 sq.mts), situated in Palacherla Grampanchayat, Rajanagaram Mandal, East Godavari District as required under Section 84 of the Act, r/w Rule 61(2) and Section 87(2) of the Act of G.O.Ms.No.119 dated 28.03.2017. As seen from the satellite images of October, 2018 and December, 2018, the subject construction has been completed without permission from the second respondent/concerned authority. Further, the application submitted by the petitioner for building permission on 29.12.2018 "failed due to drawing not being according to the Rules". The petitioner again applied for the same on 23.01.2019 without following the Rules. The petitioner submitted BPS Application on 29.06.2019, which was rejected due to non- compliance of the Rules of BPS, 2019 on 20.07.2019. Both these writ petitions are filed against the rejection order of BPS application vide BPS Application No.BPS2019/EAS/RAJ/ PAL/37861 dated 31.07.2019 and Confirmation Order passed by the second respondent vide B.A.No.1104/0139/B/ RNMDL/PLCH/2018 dated 16.07.2019 and thus, the two writ petitions are liable to be dismissed in limini with exemplary costs.
The respondents further contended that, the building application dated 23.01.2019 of the petitioner made online was not issued "due to drawing failures". The same was intimidated online 6 MSM,J W.P Nos.9701 & 10911 OF 2019 to the applicant/LTP on 24.01.2019. Again applied on 04.02.2019 and "drawing failures" intimated online on 0.02.2019. Again applied on 06.02.2019 and "drawing failures" intimated online on 07.02.2019. Again applied on 07.02.2019, returned, "due to drawing failures" intimated online on 2.02.2019 and again applied on 26.02.2019, again returned due to drawing failures, the same was intimated online on 27.06.2019. Thus, all the six applications failed and intimated. The planning staff of the respondents has identified the unauthorized construction without permission. Hence, a provisional order was issued on 25.06.2019 vide U.C.No.03/2018/GUDA under Section 89(1) of the Act, directing the petitioner to remove the unauthorized subject construction and show cause as to why the said provisional order shall not be confirmed under Section 89(2) of the Act. Thereafter, the petitioner submitted an explanation on 29.06.2019 with incorrect facts stating that she has complied with all the regulations stipulated in the A.P. Building Rules, 2017 and requested to withdraw the notice dated 25.06.2019 and grant necessary approval for subject construction.
Questioning the show cause notice dated 25.06.2019, the petitioner filed W.P.No.8689 of 2019 on 08.07.2019 before this Court on the plea of subject construction continued under the deemed permission under Section 84(4) of the Act. The said writ petition was disposed of, directing the respondents not to take coercive steps pending confirmation of the provisional orders. Further, BPS application of the petitioner was also rejected on 20.07.2019 due to non-compliance of the Rules of BPS, 20189.
7 MSM,J W.P Nos.9701 & 10911 OF 2019 Hence a detailed confirmation order was issued on 16.07.2019 directing the petitioner to demolish unauthorized construction within seven days from the date of receipt of the order. Questioning the same, writ petitions are filed against the rejection order of BPS application vide BPS Application No.BPS2019/EAS/RAJ/ PAL/37861 dated 31.07.2019 and Confirmation Order passed by the second respondent vide B.A.No.1104/0139/B/RNMDL /PLCH/2018 dated 16.07.2019 The main contentions of the second respondent are as follows:
a) The respondents admitted about issue of Show Cause Notice under Section 89(1) and Confirmation Order under Section 89(2) of the Act, confirming the provisional order, after considering the explanation submitted by this petitioner on 29.06.2019 and that the building application vide B.A.No.1104/0139/B/RNMDL/PLCH/2018 dated 29.12.2018 is sufficient proof to establish that the construction was raised without obtaining prior permission.
On this ground alone, the writ petitions are liable to be dismissed.
b) The petitioner did not comply with Clause 61(12) of G.O.Ms.No.119 MA&UD (M) Department dated 28.03.2017 which mandates a "thorough public access road of 12 m width with 2 lane black-topped" is to be developed within the applicant's site on any one side at the periphery/ as per suitability and feasibility for the convenience of accessibility to improve the circulation pattern in the locality to the 8 MSM,J W.P Nos.9701 & 10911 OF 2019 satisfaction of the competent authority. This condition would not apply if there is a existing abutting peripheral road on any side. This was not complied strictly and therefore, on this ground also, the application was rejected.
c) Though the petitioner made several applications which were rejected due to failure of drawings and finally, W.P.No.8689 of 2019 was filed and the same was disposed of, directing the respondents not to take coercive steps pending confirmation of the provisional orders. Further, BPS application of the petitioner was also rejected on 20.07.2019 due to non- compliance of the Rules of BPS, 20189. Hence a detailed confirmation order was issued on 16.07.2019 to demolish unauthorized construction within seven days from the date of receipt of the order. But, however, this petitioner failed to comply with laying public access road of 12 m width with 2 lane black-topped at the periphery to satisfaction of the competent authority in compliance of Clause 61(12) of G.O.Ms.No.119 MA&UD (M) Department dated 28.03.2017. On this ground alone also, the application was rejected and thus, the petitioner miserably failed to comply with the mandatory requirements, both for approval of plan and BPS application.
The third respondent, though raised several contentions, without reiteration, the relevant contentions are stated for the purpose of deciding the controversy of the specific contentions and they are as follows:
9 MSM,J W.P Nos.9701 & 10911 OF 2019
a) The petitioner unsuccessfully applied for permission under Section 84 of the Act to the second respondent in December 2018 and resubmitted the same without leaving the peripheral roads as per 2017 Building Rules, despite specific reason for online rejection as per the G.O. referred above.
b) The planning staff of the second respondent authority identified the unauthorized construction of the petitioner and a provisional order was issued on 25.06.2019 vide U.C.No.03/2018/GUDA under Section 89(1) of the Act, directing the petitioner to remove the unauthorized subject construction and show cause as to why the said provisional order shall not be confirmed under Section 89(2) of the Act.
c) It is further contended that the petitioner failed to lay public access road of 12 m width with 2 lane black-topped within the applicant's site on any one side at the periphery in the locality to satisfaction of the competent authority, as required under the G.O. referred supra and thus, the action of the respondents is in accordance with law and supported the contentions of the respondent No.2 The respondents along with their counter furnished entire material to establish non-compliance of the mandatory provisions of the Act, G.O.Ms.No.119 MA&UD (M) Department dated 28.03.2017 and on the basis of those documents, requested to dismiss both the writ petitions.
The petitioner filed reply to the counter affidavit, almost reiterating the allegations made in the writ petitions. Therefore, to 10 MSM,J W.P Nos.9701 & 10911 OF 2019 avoid repetition, the specific contentions in the reply to the counter are not narrated once again.
During course of hearing, learned counsel for the petitioner Ms. S. Pranati filed additional material to establish that, subsequent to filing of two writ petitions, an application was made for approval of construction of BPL application and the same was approved by the office of the second respondent, a copy of the building permission sanctioned in favour of this petitioner is placed on record to substantiate the contention of this petitioner, including approval of plan under Section 90(1) of the Act on payment of requisite fee. The second respondent, after finding that the same is in compliance of the Rules framed thereunder, granted building permit order dated 31.07.2019, granting approval for construction of the building in the said site. After granting building permission, an inspection was also conducted and the inspection report dated 02.01.2020 revealed that the construction of building is in accordance with the norms and permit order was issued. Therefore, based on subsequent events, learned counsel for the petitioner Ms. S. Pranati requested to allow the writ petitions, taking into consideration of the subsequent events.
During hearing, Sri S. Lakshminarayana Reddy, learned counsel for the second respondent vehemently opposed the contention of the petitioner, whereas, Sri Kasa Jagan Mohan Reddy, learned Special Government Pleader appearing for the first respondent/Municipal Administration and Urban Development, opposed the writ petitions on the ground that, the petitioner did not comply with the mandatory requirement under the provisions 11 MSM,J W.P Nos.9701 & 10911 OF 2019 of the Act and the Rules framed thereunder, including the mandatory requirement of laying public access road of 12 m width with 2 lane black-topped at the periphery to satisfaction of the competent authority and therefore, the rejection of the applications of this petitioner and confirmation order under Section 89(2) of the Act is in accordance with law and that this Court cannot exercise power of judicial discretion under Article 226 of the Constitution of India in favour of this petitioner when the petitioner is guilty of suppression of fact, violated the provision of Act and Rule 12 of the G.O. referred supra and requested to dismiss the petitions.
However, Sri K.K. Durga Prasad, leaned Standing Counsel appearing for the third respondent/Gram Panchayat, so also, Sri S. Lakshminarayana Reddy, learned counsel for the second respondent fairly conceded about sanction of plan subsequent to fling of these two writ petitions on the application submitted by this petitioner under Section 90(1) of the Act and requested to pass appropriate order.
Taking into consideration rival contentions of both the petitioner and respondents and subsequent events, the point that arose for consideration is:
"Whether the rejection order of BPS application vide BPS Application No.BPS2019/EAS/RAJ/ PAL/37861 dated 31.07.2019 and Confirmation Order passed by the second respondent vide B.A.No.1104/0139/B/RNMDL/PLCH/2018 dated 16.07.2019 be declared as illegal, arbitrary and violative of G.O.Ms.No.14 MA & UD Department dated 04.01.2019 and Andhra Pradesh Metropolitan Region and Urban Development Authorities Act, 2016 and Andhra Pradesh Building Rules, 2017, considering the subsequent events of building permit order by invoking Section 90(1) of the Act and consequently are they liable to be set-aside?"
12 MSM,J W.P Nos.9701 & 10911 OF 2019 P O I N T:
It is an undisputed fact that, on submission of application by this petitioner under Section 90(1) of the Act and in terms of direction issued by this Court in W.P.No.8689 of 2019 on 09.07.2019, copy of building permit order dated 31.07.2019 was issued and inspection report dated 02.01.2020 are placed on record to establish that, permission was granted in favour of this petitioner, certifying that the construction is made as per the norms. Thus, it is an undisputed fact that then building permit was already granted by permit order dated 31.07.2019 and inspection report dated 02.01.2020. When the building permit order was passed by the second respondent, the question of declaring the orders impugned in these writ petitions as illegal and arbitrary, does not arise, since the legality and validity of the orders impugned in these writ petitions remains more or less academic and this Court need not decide the legality and validity of those impugned orders, by considering various pleas raised by this petitioner and the respondents in their respective pleadings. More so, when the subsequent events of building permit order was issued by the second respondent and confirmed by inspection report dated 02.01.2020. Therefore, I find that, it is not necessary to decide the legality of the orders impugned in the writ petition, taking into consideration of the subsequent events of grant of building permit order and inspection by the concerned authorities and its confirmation that the construction is in accordance with the rules and regulations.
13 MSM,J W.P Nos.9701 & 10911 OF 2019 It is not in quarrel that a subsequent event that occurred can be taken into consideration after filing the writ petition to mould the relief appropriately The legal position about power of this Court regarding moulding of relief while exercising power under Article 226 of the Constitution of India, taking into consideration the subsequent events is not much in quarrel. In Pasupuleti Venkateswarlu Vs. The Motor & General Traders1, the Apex Court observed as follows:-
"4. ....................................................... It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice -- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed..........................................."
Recently, the Supreme Court in Ram Chandra Prasad Singh v. Sharad Yadav2 reiterated the same principle and held that, in any case, subsequent event cannot be considered for testing the 1 (1975) 1 SCC 770 2 Civil Appeal No.2004 of 2020 dated 19.03.2020 14 MSM,J W.P Nos.9701 & 10911 OF 2019 legality of the order impugned or for moulding the relief in a writ petition under Article 226 of the Constitution of India.
Therefore, by applying the same principle to the present facts of the case, since the building approval permit order was already granted in favour of this petitioner, no further adjudication is necessary to decide as to the legality and validity of the orders impugned in these writ petitions, while directing the respondents not to interfere with the construction in lieu of the building permit order dated 31.07.2019 and inspection report dated 02.01.2020, moulding the relief appropriately. However, this order will not preclude the respondents to take appropriate action in case any subsequent alterations or modifications or additional constructions are made without prior approval. Hence, I find it appropriate to mould the relief and consequently, Respondent Nos. 2 & 3 are directed not to interfere with the construction existing as on the date of inspection by the respondent, which is already completed in terms of the building permit order dated 31.07.2019 and inspection report dated 02.01.2020.
With the above direction, writ petitions are disposed of. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 24.04.2020 sp