THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.150 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. A.Ravinder Reddy, learned Senior Counsel
for the appellants; Mr. R.S.Sravan Kumar, learned counsel
for respondents No.1 to 3/writ petitioners; Mr. Nazir
Ahmed Khan, learned Government Pleader for Panchayat Raj Department representing respondents No.4 to 7; Mr. Kishore Rao Puskuru, learned counsel for respondent No.8; and Ms.Sudha, learned counsel representing Mr. V.Narasimha Goud, learned counsel for respondent No.9.
2. This appeal is directed against the order dated 09.01.2023 passed by the learned Single Judge disposing of W.P.No.650 of 2023 filed by respondents No.1 to 3 as the writ petitioners.
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3. Order dated 09.01.2023 reads as under:
This Writ Petition is filed seeking a writ of mandamus declaring the inaction of the respondents No.2 to 6 in stopping the unauthorized construction activity undertaken by the respondents No.7 to 11 in deviation of the sanction plan and to pass such other order or orders.
2. Learned counsel for the petitioners submitted that the respondent No.7 to 11 have started construction in deviation of the construction plan. The officer of the 4th respondent has inspected the site and has given a report dated 12.12.2022 pointing out various deviations in the construction. It is submitted that the respondents No.2 to 6 have not taken any action thereon.
3. Learned Standing Counsel appearing for the respondent No.5 submitted that on receipt of the report dated 12.12.2022 from the 4th respondent, the 5th respondent has already issued a notice dated 02.01.2023 to the unofficial respondents, giving them ten days time to submit their reply. It is submitted that after receipt of the reply, an appropriate decision would be taken by the authorities.
4. Mr.V.Narsimha Goud, learned Standing Counsel appearing for respondent No.6-Authority is also heard.3
5. In view of the above submissions and with the consent of all the parties, the Writ Petition is disposed of at the admission stage, directing the 5th respondent to take action in accordance with law after giving notice to all the concerned i.e., including the petitioners and also respondents No.7 to 11. The official respondents are also directed to stop the construction work until a decision is taken on the report of the 4th respondent. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
4. Learned Senior Counsel for the appellants submits that without issuing notice to the appellants and without giving an opportunity to the appellants to contest the writ proceedings, adverse order has been passed by learned Single Judge by directing official respondents to stop the construction being carried out by the appellants.
5. On the other hand, learned counsel for respondents No.1 to 3/writ petitioners submits that it is evident from the materials on record that the construction carried out by the appellants is wholly illegal and beyond the 4 sanctioned plan. Therefore, learned Single Judge was fully justified in passing the impugned order.
6. After hearing learned counsel for the parties and on due consideration, we are of the view that direction of the learned Single Judge to Panchayat Secretary, Chowdariguda Gram Panchayat, to take action in accordance with law after giving notice to all concerned including respondents No.1 to 3/writ petitioners and the appellants, cannot be faulted, as the said order sufficiently protects the interest of all the contesting parties. However, we find the subsequent direction of the learned Single Judge to be problematic. Learned Single Judge has directed the official respondents to stop the construction work until a decision is taken on the report of the Mandal Panchayat Officer. In our view, such a direction was wholly uncalled for and unwarranted.
7. To direct a statutory authority to stop the construction work would require a finding that the construction is illegal. No such finding has been recorded. 5 That apart, it is an elementary principle of natural justice that the affected party would have to be put on notice and would have to be given a reasonable opportunity of hearing before an order adverse to such a party is passed. Directing stoppage of construction work being carried out by the appellants is certainly an order adverse to the appellants. Appellants were required to be heard before such an order was passed, which was not done in the instant case.
8. Therefore, the following portion of the direction of the learned Single Judge is hereby set aside.
The official respondents are also directed to stop the construction work until a decision is taken on the report of the 4th respondent.
9. The rest of the order dated 09.01.2023 stands as it is. The exercise directed to be carried out by the learned Single Judge shall be completed within a period of six weeks from the date of receipt of a copy of this order.
10. Writ appeal is accordingly disposed of. 6
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ N. TUKARAMJI, J 02.02.2023 vs