THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P.No.25765 of 2020
ORDER:-
Aggrieved by the inaction of the 2nd respondent, the
petitioner herein filed the present Writ Petition on that ground that she is the owner of the building in R.S.No.66/12 in Ward No.20 of Tanuku Municipality bearing house No.25-4-2 situated at Netaji Subhash Chandra Bose Road, Tanuku.
2. The petitioner herein made a complaint against the unofficial respondent, who constructed the building contrary to the building plan without leaving set back spaces and jutting towards the edge of the road. Despite of the representation dated 09.11.2020 made by the petitioner herein, to the 2nd respondent-Municipality, has not taken any steps against the unofficial respondent, which impelled the petitioner to file the present Writ Petition, seeking to direct the respondents to initiate action against the unofficial 8 th respondent under the provisions of Andhra Pradesh Municipalities Act, 1965.
3. This Court vide order dated 25.01.2021 directed the unofficial respondent not to carry out any activities whatsoever in the said building bearing D.No.25-4-1, NSC Bose Road, Tanuku on the written instructions made by the learned Standing Counsel for Tanuku Municipality.
4. On receiving the notices, the 3rd and 4th respondents have made their appearances and filed their counter affidavits. 2
5. Learned counsel for the 3rd respondent filed the counter affidavit stating that an enquiry officer was appointed to know about the allegations against the 8th respondent. The 3rd respondent further stated that the 8th respondent never approached seeking permission for the construction of building for the purpose of Hospital.
6. Learned counsel for the 4th respondent-The Director General, Fire Department, Vijayawada filed counter affidavit stating that the unofficial respondent has not obtained the no objection certificate which has to be obtained under section (13)(1) of A.P. Fire Service Act, 1999, for any building of more than 15 meters height for commercial/business purpose, 18 meters and above height for residential purpose and buildings of public congregation like schools, cinema halls, function halls, religious places, which are more than 500 square meters in plot area or 6 meters and above in height, from the Director General or any members of the service duly authorized by him in this behalf. Hence, a notice was issued to the unofficial respondent in Form-9 as per Rule 25(1) of A.P. Fire Service Act, 1999 & A.P. Fire and Emergency Operations and levy of fee Rules, 2006 for not obtaining no objection from the Fire Department.
7. The 7th respondent also filed his counter affidavit stating that on the complaint received from the Writ Petitioner the Commissioner, Tanuku Municipality have issued provisional order, notice under section 228 (1 & 2) r/w section 209, 212 of APM Act, 1965 on 17.11.2020 for unauthorized conversion of the existing 3 school building into hospital and the same was fixed on the building on 21.11.2020 vide U.C.No.178 of 2020, dated 17.11.2020. After issuance of the said provisional order, neither the alteration work was stopped nor an explanation was submitted by the unofficial respondent and the confirmation order (co) notice under section 228(3) of APM Act, 1965 has also been issued on 25.11.2020 and the same was affixed to the respective building on 27.11.2020. It is further averred that the building construction by the unofficial respondent is located at the corner of two master plan roads i.e., NSC Bose Road and Yerramilli vari street, as per the Master Plan of Tanuku Municipality. These two master plan roads are proposed to be widened as 40 feet. Currently, the said master plan roads are having 6.70 mts of width in existence. Moreover, the building owner Sri Yarramsetty Surya Prabhakar Nayudu has provided the iron stair case on both eastern and southern sides duly encroaching the master plan road widening portion. For these encroachments, a notice under sections. 192, 193 & 336 of APM Act, 1965 has been issued. The above said notices i.e., PO, CO and encroachment notices have also been sent to the building owner by registered post on 15.12.2020 and the acknowledgment has also been received on 05.01.2021. These notices were issued to the unofficial respondent basing the representation made by the learned counsel for the petitioner and action was initiated against the unofficial respondent. Hence, it is prayed to dismiss the Writ Petition.
8. The 8th respondent filed his counter affidavit stating that the Writ Petitioner has no locus standi to file the present Writ Petition 4 and there are latches on the part of the Writ Petitioner and she made an application seeking a direction to the 2nd respondent for regularization and penalization of the construction basing on the G.O.Ms.No.128, dated 22.05.2015.
9. The unofficial respondent stated that the Writ Petitioner has no locus standi to file the Writ Petition relying on the judgment of this Hon'ble Court in "I. Venkat Rao V. Municipal Corporation of Warangal and another1".
10. This Hon'ble Court in "K.Jawahar Reddy and another V. State of Andhra Pradesh2" stated that the neighbouring owners of the disputed property can maintain Writ Petitions. When there is a violation, the neighbour can certainly agitate his right either under common law remedy or can exercise jurisdiction under Article 226 of Constitution of India.
11. In the above cited judgments the learned single Judge has relied on the judgment of the Hon'ble Apex Court in "Rajatha Enterprises V. S.K.Sharma and Others3," and held that the neighbour cannot approach the High Court under Article 226 of the Constitution of India.
12. As per the Judgment of the Hon'ble Apex Court, it can be construed that, when there is evidence that the builder constructed the building with dishonest intention, fraud or negligence then the Writ is maintainable.
1 1999 SCC OnLine AP 705 2 2003 (3) ALD 195 3 1989 AIR 860 5
13. In the present case, admittedly, the unofficial 8th respondent has constructed the building without leaving set backs and jutting towards the road and laid an iron stair case on the road which endangers the public.
14. Regarding the second contention raised by the unofficial 8th respondent that there are latches on the part of the petitioner, as the building was constructed in the year, 2011 and a representation was made on 09.11.2020 about the illegal construction.
15. Learned counsel for the petitioner submits that the illegality cannot be perpetuated and the unofficial 8th respondent has constructed the building plan with deviations which is not within the permissible limits and it is contrary to the Tanuku Municipality master plan. It is further stated that no limitation period is prescribed under the Andhra Pradesh Municipalities Act and the cause of action is continuous. Hence, the contention raised by the unofficial 8th respondent is untenable and shall be rejected.
16. Learned counsel for the unofficial 8th respondent relied on the Judgment in "3 Aces, Hyderabad V. Municipal Corporation of Hyderabad4." If the deviations are minor and in public interest which is not hazardous or dangerous to public safety, the corporation will not resort to demolition.
17. Learned counsel for the unofficial 8th respondent further stated that, he made an application to the 2nd respondent Municipality seeking regularization basing on the G.O.Ms.No.128, 4 1994 SCC OnLine AP 176 6 Municipal Administration and Urban Development (M) Department, dated 22.05.2015 and on the said ground, the counsel for the respondents prayed to dismiss the Writ Petition.
18. As per the judgment stated supra 1 & 2, a neighbour can also be entitled to file the Writ Petition for his grievance under Article 226 of the Constitution of India. On elucidating the above judgments, this Court opines that the petitioner can maintain a Writ Petition under Article 226 of Constitution of India for her grievance as the official 7th respondent has not taken any action on the representation, admittedly, when the building was constructed without leaving setbacks and jutting towards the road edge.
19. When an enactment provides to take action against the violator, if the authority does not act, then the neighbour can definitely approach this Court under Article 226 of the Constitution of India when his right to enjoy the property is deprived of either corporeal, incorporeal right viz., light, air etc when there is an invasion.
20. The counsel for the Writ Petitioner has also relied on the same judgment i.e., 3 Aces case and stated that violations are not trivial in nature and major and it is hazardous to the public as the building juts into the public road edge and causes traffic congestions and the road cannot be extended, further it was stated no public interest was involved in this case. Hence, he prayed that the contention raised by the unofficial respondent is untenable and prayed to allow the Writ Petition.
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21. Admittedly, the building was constructed in deviation without leaving setbacks and constructed the building abutting the road margin and installed an iron stair case and as per the contentions of the official respondents, the deviations are major.
22. This Court in "V. Narasimham V. Greater Hyderabad Municipal Corporation5" held that:
"In all developed and developing countries, great emphasis has been laid on the planned development of cities and urban areas. In developed countries, the objective of planned development has been achieved by rigorous enforcement of plans prepared after thorough study of complex issues and scientific research and rationalization of laws by way of legislative enactments. The people of those countries have greatly contributed to the concept of planned development by strictly adhering to zoning and building regulations. They, by and large, exhibit total respect for the system based on rule of law and seldom there is a complaint of violation of the building/zoning regulations while constructing buildings, residential or commercial. The situation in developing countries like ours is substantially different. Though the legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, the same have been violated with impunity. In the last four decades, almost all cities, big or small, have seen un-planned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned plans. In most of the cases of illegal and unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions or the sanctioned plans and those who directly or indirectly support such violations are perhaps totally unmindful of the grave adverse consequences on the present as well as future generations of the people living in un-planned cities. They do not realize that once a building is constructed in violation of the relevant laws or sanctioned 5 2007 (5) ALD 203 8 plan or is used for a purpose other than the one specified in the Master Plan or Zonal Development Plan, a chain of reactions occurs. Such constructions put unbearable burden on the public facilities like water, electricity, sewerage etc. apart from creating chaos on the roads. If the area earmarked for parking in multi-storied buildings, apartments and complexes is used for commercial activities, the residents and/or users of the buildings are compelled to park their vehicles in side lanes and public roads, which are meant to be used by the general public. As a consequence, others for whose benefit side lanes etc. are constructed are compelled to use main roads leading to traffic congestion and accidents resulting in loss of human lives. The pollution caused due to traffic congestion affects the health of road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases, Asthma, Allergy and even more dreaded diseases like Cancer. It can only be a matter of imagination how much the government has to spend on controlling pollution and adverse impact on the environment of the area caused due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions."
23. Learned counsel for the petitioner also relied on the judgment of the Hon'ble Apex Court in "Sri A. Murali and another V. The State of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration Department, Secretariat, Velagapudi, Amaravathi, Guntur District and three others6," which stated that, "the unauthorized constructions cannot be compounded but has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency; Courts are not free from statutory fetters; Justice is to be rendered in accordance with law; and Judges are not entitled to exercise discretion for passing orders based solely on their personal predelictions."
24. As rightly stated by the learned counsel for the petitioner, an illegality cannot be perpetuated and it is admitted that the building 6 2018 SCC OnLine Hyd 139 9 was constructed in violation of the building plan and Rules and the unofficial respondent has applied for regularization vide G.O.Ms.No.128, dated 22.05.2015.
25. Hence, the contention raised by the unofficial respondent is untenable and liable to be rejected. Regarding the application for the regularization as per the counter affidavit filed by the 7th respondent-Tanuku Municipality, the authority has rejected the application for non-payment of the penalization amount within the time stipulated and the same was challenged before this Court vide W.P.No.12654 of 2021. In the said Writ Petition the petitioner herein was not made a party or the petitioner in W.P.No.25765 of 2020 was not impleaded as a party in W.P.No.12654 of 2021. On the representation dated 09.11.2020 made by the petitioner herein, the 7th respondent-Municipality issued notice to the unofficial respondent herein and initiated action.
26. Therefore, as the grievance of the petitioner has been accomplished by the 7th respondent-Municipality, the Writ Petition is disposed of directing the 7th respondent to proceed against the unofficial 8th respondent in accordance with law.
27. Accordingly the Writ Petition is disposed of. No costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 07-04-2022 HariN/EPS 10 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 7 W.P.No.25765 of 2020 Dated:07.04.2022 HariN/EPS 11 In the cited judgments the learned single Judge has relied on the judgment of the Hon'ble Apex Court reported in "Rajatha Enterprises V. S.K.Sharma and Others," reported in 1989 AIR 860 and held that the neighbour cannot approach the High Court under Article 226 of the Constitution of India.
As per the Hon'ble Apex Court judgment when there is evidence that the builder constructed the building with dishonest intention, fraud or negligence then the Writ is maintainable.
In the present case admittedly the unofficial respondent No.8 has constructed the building without leaving set backs and jutting towards the road and laid an iron stair case on the road which endangers to the public. When an enactment provides to take action against the violator, if the authority does not act, then the neighbour can definitely approach this Court under Article 226 of the Constitution of India when his right to enjoy the property is deprived of either corporeal, incorporeal right viz., light, air etc when there is an invasion.