THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL Nos.546 and 549 of 2022
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. P.Gangaiah Naidu, learned Senior Counsel
appearing for the appellant; Ms. Pingali Lakshmi, learned
Standing Counsel for Greater Warangal Municipal
Corporation appearing for respondents No.1 to 3; and
Mr. Mohd. Islamuddin Ansari, learned counsel for respondent No.4.
2. The present intra-court appeals are directed against the common order dated 15.07.2022 passed by the learned Single Judge disposing of W.P.No.22457 of 2019 filed by respondent No.4 and dismissing W.P.No.24476 of 2019 filed by the appellant.
3. Appellant had filed W.P.No.24476 of 2019 to quash the notice dated 04.11.2019 issued by respondent No.1 under Section 636 of the Greater Hyderabad Municipal Corporation Act, 1955, as made applicable to Greater Warangal Municipal Corporation. By the aforesaid notice 2 dated 04.11.2019 appellant was directed to remove the deviated portion of construction made by him beyond the sanctioned plan within 24 hours failing which it was notified that those would be removed by respondent No.1 whereafter expenses incurred for such removal would be recovered from the appellant. This writ petition was heard along with two other writ petitions being W.P.Nos.6513 of 2021 and W.P.No.22457 of 2019 filed by respondent No.4.
4. Both appellant and respondent No.4 are neighbours and as per the complaint of respondent No.4 which led to the previous round of litigation, impugned notice came to be issued.
5. Writ petitions were contested by respondents No.1 to 3 by filing counter affidavit wherein it was pointed out that appellant has raised construction without maintaining the setbacks, particulars of which were placed before the Court as under:
Description As per Building As per sanctioned As maintained on deviations
rules vide plan the ground
G.O.Ms.No.168
MA, dt. 07.04.2012
All round setbacks
a) Front 1.50 2.36 0.00 2.36
1.00 1.10 0.00 1.10
b)Rear
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c)Side (1) 1.00 1.10 0.00 1.10
d) Side (2) 1.00 1.10 1.50 -
5.1. It was contended that appellant had made
construction deviating from the sanctioned plan without maintaining setbacks.
6. Learned Single Judge by the common order dated 15.07.2022 dismissed W.P.No.24476 of 2019 filed by the appellant as being devoid of any merit.
7. In the hearing today, learned Senior Counsel for the appellant submits that as per the Andhra Pradesh Building Rules, 2012 (briefly, "the Rules" hereinafter) now applicable to the State of Telangana which was issued vide G.O.Ms.No.168, dated 07.04.2012, there is a provision for compounding of any setback violation in respect of non high rise buildings up to 10%. He submits that as per Rule 26(d) of the Rules, such power is available to the sanctioning authority.
8. Learned counsel for respondent No.4 however submits that this issue was neither pleaded nor argued by the appellant before the learned Single Judge. 4
9. Submissions made have been considered. Also perused the materials on record.
10. Rule 26(d) of the Rules reads as under:
"(d) The Sanctioning Authority is empowered to compound the offence in relation to setbacks violation (other than the front setback) in respect of non high rise buildings only up to 10%, duly recording thereon the violations in writing. The rate of Compounding fee shall be equivalent to one hundred percent of the value of the land as fixed by the Registration Department at the time of compounding for the violated portion and the Government may revise this rate from time to time. Compounding of such violation shall not be considered for buildings constructed without obtaining any sanctioned plan."
10.1. From the above we find that the sanctioning authority is empowered to compound an offence in relation to setback violation (other than the front setback) in respect of non high rise buildings up to 10% after recording reasons in writing. While compounding, certain fees are also to be levied as laid down by the Registration Department of Government of Telangana. However, it is clarified that compounding of such violation would not be considered for buildings constructed without obtaining any sanctioned plan.
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11. Allegation is that appellant had deviated from the sanctioned plan in respect of setbacks. The quantum of deviation has been recorded in the order of the learned Single Judge which we have extracted above, which is below 10% as per affidavit of respondent Nos.1, 2 and 3.
12. It is true that this aspect was not urged by the appellant before the learned Single Judge, as a result of which no finding could be returned by the learned Single Judge. Nonetheless, we are of the view that having regard to the consequences which the appellant would face in view of dismissal of the writ petition filed by him assailing the notice dated 04.11.2019, we have entertained the appeals and examined the above point urged by learned Senior Counsel appearing for the appellant since the same strikes at the very root of the dispute.
13. Thus, in the facts and circumstances of the case we are of the view that Commissioner of Greater Warangal Municipal Corporation should examine this aspect of the matter and thereafter pass an appropriate order in accordance with law.
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14. Accordingly and in the light of the above, we modify the order of the learned Single Judge dated 15.07.2022 by directing respondent No.1 to consider as to whether the deviation made by the appellant is compoundable under Rule 26(d) of the Rules and thereafter to pass an appropriate order in accordance with law. Let the said exercise be completed within a period of six weeks from the date of receipt of a copy of this order.
15. Writ appeals are accordingly disposed of.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 26.08.2022 vs