Singaraju Subbaraju vs The State Of Andhra Pradesh,
2021 Latest Caselaw 169 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

              WRIT PETITION No.20824 of 2020

ORDER:

With the consent of both the parties the Writ Petition

itself is taken up for hearing.

This Court has heard Sri N.Ashwani Kumar, learned

counsel for the petitioners and the learned Government

Pleader for Revenue appearing for the 5 respondent and Sri th

S. Lakshminarayana Reddy, learned standing counsel for the

GVMC, appearing for the 2nd to 4threspondents. The main

answering respondent is the 2ndrespondent, who has filed a

detailed counter.

This Writ Petition is filed for the following relief:

"....to issue a Writ, order or direction more particularly, one in the nature of "Writ of Mandamus: declaring the notice in Lr.Roc.No.17880/2011/ACP-Ii, dated 06.11.2020 served on the representatives of petitioners on 06.11.2020 issued by the 2 respondent nd

invoking Section 636 of APMC Act, 1955 as being illegal, arbitrary, lacking application of mind, in violation of principles of natural justice, in violation of provisions of APMC Act, 1955 and in violation of Articles 14, 19 and 300-A of the Constitution of India, and consequently to set aside the notice in Lr.Roc.No.17880/2011ACP-II dated 06.11.2020 issued by the 2 nd respondent and pass such other order or orders as this Hon'ble Court may deem fit just and proper in the circumstances of the case."

PETITIONERS' SUBMISSIONS:

Sri N.Ashwani Kumar, learned counsel for the

petitioners, draws the attention of this Court to the long

history of this case. He points out that the petitioners are the

owners of 925 Sq.yards of land or 773 Sq.Mtrs., of property

situated in ChinnaWaltair, Visakhapatnam. In the said

property they are running a hotel in the name and style of Sri

SampathVinayakaKamat Hotels. Learned counsel argues that

in the year 2011 they had submitted an application to the

2ndrespondent-Corporation for approval of the building plan

in B.A.No.14472, dated 10.11.2011 seeking permission to

construct a temporary AC Sheet roof shed in the said site. As

it was neither approved nor rejected, relying upon the

deeming provision in the HMC Act viz., Section 437, the

petitioners started the construction of the temporary shed.

When the 2ndrespondent Corporation sought to demolish the

same they filed civil suit in O.S.No.1263 of 2011 before the VI

Additional Junior Civil Judge, Visakhapatnam, which was

decreed on merits in the year 2015. An interim order initially

granted was vacated. Thereafter, C.M.A.No.14 of 2012 was

also filed and the same was allowed in April, 2012. He,

therefore, submits from the date of suit till the decree there

was an injunction, later the suit itself was decreed in April,

2015.

Learned counsel for the petitioners also submits that in

order to protect the subject property and also their customers

from dust, rain, heat and pollution they wanted to put

another temporary tensile cover (roof) over the existing floor

by using flexible and environmental friendly material. This

representation was made in July, 2018. Thereafter, learned

counsel submits that on 06.11.2020 two notices were served

at the same time i.e., at 2.20 p.m., (a) under Sections 452 and

461 of the Municipal Corporation Act and (b) a notice under

Section 636 was also served directing the petitioners to

remove the deviated portions, unauthorised first floor and

also the encroachment on the Government land within 24

hours. Learned counsel relies upon the endorsement made

on the said two notices, which are filed as material papers, to

argue that they are served at the same moment of time. He

submits that the notices are totally contrary to law, rules of

natural justice and reflect a clear case of non-application of

mind. It is argued by the learned counsel that the section

itself mandates a show cause notice and an explanation

within a reasonable time. He submits that by giving both the

notices at the same moment of time the entire process is

vitiated. He also points out that as per the judgment of the

Full Bench of the Combined High Court reported in 3 Aces,

Hyderabad v Municipal Corporation of

Hyderabad1demolition should not be carried out on holidays,

weekends etc. He also argues that the permission was

granted for construction of the temporary AC roof shed in the

site even before the suit was decreed in its totality. He relies

upon the proceedings from the Commissioner to the GVMC

and also the approval of the Principal Secretary, dated

AIR 1995 AP 17

18.10.2012, permitting the temporary constructions. He also

draws the attention of this Court to the judgment and decree

in O.S.No.1263 of 2011 and argues that once there is a decree

of competent Civil Court the 2ndrespondent Corporation

cannot take action again to demolish the structures. He also

relies upon the compilation of case law, which is filed as a

separate material paper. These are under four heads -

1. That the notice under Section 452 should be issued

before the power is exercised under Section 636 of

the Act;

2. That demolition cannot be a penalty in the absence of

public safety etc., being involved and for technical

infirmities;

3. That a counter affidavit cannot improve the contents

of the impugned proceedings; and

4. That the Commissioner cannot enquire into the title

of the property.

This is the sum and substance of the submissions made

by the learned counsel for the petitioners.

RESPONDENTS CONTENTIONS:

On behalf of the 5 respondent a counter affidavit is th

filed. It is argued that the petitioners have occupied 290

sq.yards of Government land in Sy.No.30 which is classified

as of a "Vague Poramboku" (Water channel/Water body).

Learned Government Pleader for Revenue argues that a duty

is cast upon the Courts as per the settled law on the subject

to protect the VaguPoramboku, GaddaPoramboku and other

water bodies. Learned Government Pleader argues that the

petitioners have also applied for regularisation of the

encroachment of Government land. The said proposal was

actually rejected by the Government on 25.09.2020. It is

submitted that the request for regularisation of this

encroachment was negatived on the ground that the land is

VaguPoramboku. Learned Government Pleader argues that

the petitioners have suppressed these facts in the writ

affidavit. It is also stated that in this occupied bit of land AC

roof sheds were also constructed. He relies upon the GOs.,

which are mentioned in his counter affidavit, and also the

settlement Fair Adangal, which shows that the land in

Sy.No.130 is classified as Vague. He argues that this is a

permanent record. Lastly, he submits that the circular, dated

22.04.2013, issued by the Collector and District Magistrate

clearly states that the water bodies, Tank Poramboku lands

should not be alienated, regularised etc.

The learned standing counsel for GVMC also submitted

a forcible argument in this case. According to him the first

notice under Section 452, dated 29.10.2020, was sought to be

served on the petitioners. As their staff had refused to receive

the said notice it was affixed to the wall of the premises. He,

therefore, submits that as no reply was received for the show

cause notice dated 29.10.2020 a final order was passed on

06.11.2020. He relies upon the endorsement given by the

staff of the Corporation, who stated that they have affixed the

first Notice dated 29.10.2020 on the wall of the premises. He,

therefore, argues that there is a valid service. He points out

that the self servingendorsement is made by the petitioners'

own people on their office copy stating that both the notices

were served on 06.11.2020 at 2.20 p.m., but not on the

GVMC copy

He also argues that the initial building plan that was

given was for construction of temporary AC sheet shed only.

He points out that what was permitted by the approval on

18.10.2012 was only an AC sheet roof shed, which was

subject to certain conditions. However, contrary to the same,

the 1 floor was also constructed on this shed. Therefore, it is st

his contention that what is actually built is not a temporary

AC shed as per the approved plan.

Coming to the 1stfloor that is constructed, learned

standing counsel submits that the petitioners had applied in

2018 for grant of a building permission over the existing AC

sheet shed. This was not formally granted and an

endorsement dated 08.08.2018 was issued to the petitioners

informing them that the temporary structures over the

existing AC Roof sheet shed would be permitted subject to

certain conditions. The most important of which was that the

petitioners have to obtain the change of land use from open

space / recreational area to commercial use. Learned

standing counsel argues that till date the said permission is

not been granted and despite the same the 1stfloor was

constructed and is being used for a wholly commercial

purpose viz., the running of an air conditioned restaurant in

two floors. He also submits that even if there is an approved

building plan still no activity can be carried out in the

property without obtaining an occupancy certificate. It is his

contention that obtaining of occupancy certificate is

mandatory under the law and particularly Section 455 (1) and

(2) read with 26 of the A.P. Building Rules. Relying upon the

orders passed in W.A.No.1156 of 2017 learned standing

counsel argues that the petitioners should not be permitted to

carry on commercial operations. Thereafter, coming to the

occupation of the Government land learned standing counsel

submits that the petitioners have occupied the Government

land and have constructed a shed etc., in the said occupied

Government land. They do not have right to construct in the

occupied place. He also submits that the petitioners have

suppressed all these facts and particularly W.P.No.16425 of

2014, which was filed by the very same petitioners against the

action proposed to be taken in 2014 for demolition of the

structures in the occupied land. He points out that when the

structures were sought to be demolished the petitioners

themselves, through his counsel, agreed to remove the

remaining portion of the shed within two days and also stated

that they would not raise any constructions without the prior

permission. Learned counsel points out that in total

contravention of what is agreed in this order the present

constructions were carried out. Relying upon the case law

learned standing counsel argues that the Court should be

firm in such cases and the Court should not permit the

people who have exploited the law to get any advantage. It is

his contention that any order granted would send a wrong

message to the public and he argues that there is a long line

of case law which clearly stated that the unauthorised

constructions should not be allowed to stand.

REJOINDER:

Learned counsel for the petitioners has filed a rejoinder

to the counter affidavit filed by the Municipal Corporation.

Learned counsel for the petitioners again reiterates the

arguments on similar lines and submits that the issuance of

two notices on the very same day vitiates the entire

proceedings. He, therefore, states that as the petitioners have

been in settled possession and enjoyment of the property they

should be allowed to continue.

CONSIDERATION BY THE COURT:

The first and foremost issue that has to be considered

by this Court is the effect of the Decree of the Civil Court in

O.S.No.1263 of 2011, which was passed on 07.12.2015. The

suit is filed on the ground that the plan that was submitted

for approval of construction of a temporary structure in the

land belonging to the petitioners was neither rejected nor

approved within the stipulated time. Hence, the

plaintiffs/petitioners argued that the construction is "deemed

to be approved" and cannot be demolished. Relying upon a

deeming provision the suit was filed. The matter went to trial

and after considering the oral and documentary evidence the

trial Court granted a decree by granting a permanent

injunction in favour of the plaintiffs 1 and 2 restraining the

defendant in the suit not to interfere with the structure in the

suit schedule property, which was subject to reclassification

of the plaint schedule area from CRW-III to CRZ-II. This

decree and judgment is passed for the property (temporary

shed) which is situated in the site measuring 925 sq.yards of

land. It is clearly mentioned that in the plaint schedule

(which is filed as a material paper) that within the property is

a temporary shed, which was under construction. The

boundaries of this property are described as follows:

        "East       :    Property of Buddiga family
        South       :    Burial ground site
        West        :    Bheemili Beach Road
        North       :    Drain"

This Court also notices that the permission that was

also formally granted for construction of this temporary shed

in B.A.14472/11/ACP II/G2, dated 09.11.2012. Setbacks

that were permitted are also mentioned. This is preceded by

a memo dated 18.10.2012, by which the Principal Secretary

to the Government directed the GVMC to accord permission

for construction of "Temporary constructions only" (AC sheet

roof shed). This is subject to reclassification as per the CRZ

norms and all other land use and other building regulations.

Therefore, the decree as it stands in favour of the petitioners

is for a temporary AC Roof Shed only with particular setbacks

etc., in a demarcated bit of land and for nothing more.

FIRST FLOOR AND "LAND" OCCUPIED:

Coming to the first floor that has now been added to the

building, in the writ affidavit that is filed it is clearly

mentioned that the petitioners wanted to put up temporarily

another roof over the existing floor by using flexible and

environmental friendly material. This proposal was moved on

04.07.2018. In the counter affidavit, the endorsement dated

08.08.2018 by which this request was kept in abeyance by

the respondent is filed. It is clearly stipulated that the

petitioners should comply with the following conditions:

1. The applicant has to obtain change of land use form open space & recreational use to Commercial use.

2. The applicant shall provide parking area as per prevailing norms.

3. The applicant shall obtain prior clearance form APCZMA as the subject site is falling under CRZ.

The counter affidavit filed by the Revenue Department

represented by the Tahsildar clearly shows that the proposal

submitted by the petitioners for change in land use was in

fact negatived. Learned Government Pleader pointed out that

as there is vaagu or water body the same could not be

regularisedin view of the law on the subject and also the

relevant GOs. Apart from this, this Court also notices that

the petitioners had filed W.P.No.16425 of 2014 and a copy of

the order passed on 16.06.2014 is enclosed. In that case, it

was argued that the subject land is a Government land and

that the proposals for regularisation are still pending. After

recording the submissions of the learned counsel for the

petitioners and the respondents, the High Court permitted the

petitioners to remove the unauthorised constructions. The

petitioners also gave an undertaking to the Court that they

would not raise any further constructions without prior

permission from the GVMC. The Writ Petition was closed

recording the said submissions. The order passed in

W.P.No.16425 of 2014 clearly shows that the petitioners did

not have permission for construction; that they have clearly

admitted that the part of the land (which is the subject matter

of the present dispute), is Government land which is

occupied. Therefore, as far as the first floor is concerned it is

clear that the petitioners have not been able to demonstrate

before this Court that the three conditions stipulated in the

endorsement dated 08.08.2018 have been complied with or

that the same is an approved construction in land for which

the petitioners have title.

Apart from this a lot of case law was also cited about the

Commissioner of the GVMC deciding on the title to the

property. This Court is of the opinion that in view of the clear

and categorical conduct of the petitioners - by applying for

regularisation, they are estopped from changing their stand.

The admissions recorded by this Court in W.P.No.16425 of

2014 (which is not challenged anywhere else) make it clear

that the petitioners clearly admitted that they have occupied

the Government land and pending consideration of their

application for regularisation, coercive action was being taken

by the GVMC. It was also agreed that they would not make

any further constructions without prior permission from the

GVMC. These aspects highlighted in the counter affidavits

are not controverted. This Court has to conclude that the

petitioners had occupied Government land; that they did not

get it regularised and that they had made constructions

including the first floor contrary to the undertaking given by

them in the Court also. They do not also have an approved

plan for the first floor.

OCCUPANCY CERTIFICATE:

Coming to the issue of the Occupancy Certificate the

learned standing counsel for GVMC vehemently argued that

no commercial activity can be started nor can the building be

occupied without obtaining the occupancy certificate.

Learned standing counsel relying upon the counter affidavit

filed argued that the decree passed by the Civil Court would

only apply to the temporary shed in the ground floor and that

it does not authorise the petitioners to make a construction in

the first floor and convert the land and building for

commercial purpose without prior approval and without

Occupancy Certificate. Learned counsel for the

petitioners,however, argued that the issue before this Court is

about the manner of service of two notices flouting the rules

of natural justice etc. He submits that the issue of

Occupancy Certificate is now being added as an additional

ground against the petitioners. Relying upon the case law

that he has submitted, including the well-known judgment of

Mohindhr Singh Gill and Another v Chief Election

Commissioner, New Delhi and Others2 learned counsel

argued that such an improvement should not be permitted

and that the contents of the noticesalone have to be taken

into consideration and further improvements cannot be

considered. The case law on the subject is not in doubt. But

this Court notices that the permission that has been granted

to the petitioners in 2012 clearly mentions that they are

permitted to make temporary construction only subject to the

outcome of the case and reclassification of the land from CRZ-

III to CRZ-II by ensuring that no pollution shall occur and

duly following CRZ norms, all other manuals and other

building regulations. The actual endorsement issued to the 1 st

(1978) 1 SCC 405

petitioner on 25.10.2012 also supports this contention of the

learned standing counsel for the respondents that it shall be

subject to the land use and building regulations.

While it is true that there is an order passed in favour of

the petitioners restraining the respondent from demolishing

the AC sheet in the ground floor, the fact, however, remains

that the approval for occupancy is governed by Section 455 of

HMC Act. A person who wishes to occupy and use a building

shall have to seek the completion certification. However, this

Court does not wish to go further into this area of

controversy. The GVMC has to take action as warranted by

law on this issue. It cannot be urged as a ground of defence

in the present Writ Petition. It is left open to the GVMC to

pursue the issue.

TWO NOTICES:

The last issue that survives for consideration is whether

the available record shows that both the notices under

Sections 452 and 636 were served at the same time. The

petitioners have filed copies of the notices with an

endorsement thereon that they were served on 06.11.2020 at

2.20 p.m. The endorsement is made by one Sri K.V. Subba

Raju for the petitioners. Relying on this endorsement on the

two notices, dated 29.10.2020, and 06.11.2020 learned

counsel argued that these two notices were issued at one

moment only. It is his contention that hence the entire

exercise is vitiated.

In reply to this the Corporation has come up with the

contention that the 1stnotice dated 29.10.2020 was affixed on

the wall on the premises as the petitionersstaff did not receive

the said notice. Thereafter, it is asserted that the 2ndnotice

was issued on 06.11.2020. In fact, the copy of the notice

dated 06.11.2020 filed by the GVMC shows that it was in fact

served at 2.20 p.m. However, the copy of the notice dated

29.10.2020 filed by the GVMC does not contain any

endorsement. The GVMC has also filed the proceedings by

which the Municipal staff has confirmed that they attempted

to serve the Notice dated 29.10.2020 on the hotel owners. As

per this the hotel owners were not present at that place and

the staff refused to receive the notice. Therefore, they state

that they have affixed the notice on the wall on 31.10.2020 at

10 a.m.

This Court notices that the affidavit of Sri K.V. Subba

Raju, who made the endorsement has not been filed in this

case. The affidavit in this case was sworn by the owner of the

hotel. The endorsement is made on the copies that were

served to the petitioners by Sri K.V.Subba Raju. In addition,

an endorsement is normally given in "receipt" of a

notice/document. This Court could have attached greater

value to the endorsement if it is present on the notices which

are with the respondent Municipal Corporation. The 1stnotice

dated 29.10.2020 does not contain any endorsement of the

petitioners or their representative. The 2ndnotice dated

06.11.20202 contains an endorsement of the time / date.

Hence, this Court cannot come to a firm conclusion that both

the notices were served on 06.11.2020 at the same. If the

endorsement of time / date of service are there on the

document with the GVMC, this Court could have decided

otherwise.

In addition, the GVMC specifically stated that when the

notice was sought to be served the owners were not present

and as the staff refused the same it was affixed on the wall. A

document to this effect was also filed. There is a presumption

in law that official acts are validly performed. This is not

rebutted. In the light of the above discussion this Court has

to hold that the petitioners could not prove that the notice

dated 29.102.2020 was actually served on 06.11.2020 (with

the final order).

CONCLUSION:

After examining the contents of the notices dated

29.102.2020 and 06.11.2020 this Court notices that the site

in which the sanction was given for construction is 663.71

sq.mtrs., whereas the actual site on the ground is 1065.60

sq.mtrs., All the setbacks on the front, rear and sides are

flouted. In fact, there are no set backs on the front, rear and

the side. The number of floors sanctioned was one floor.

Construction was made for ground + first floor. The road

widening area is also occupied. There is a specific reference

to the notice dated 29.10.2020 being given to the petitioners

and their failure to give a reply. The Municipal Corporation

has specifically pointed out the deviations and the occupation

of the Government land. It was also clearly specified that the

petitioners had violated the provisions of the A.P. Municipal

Corporation Act. It is specified that the petitioners should

remove the deviated portions including the unauthorised first

floor and vacate the encroachment in the Government land.

The petitioners have only got a decree in their favour for a

particular site measuring 925 sq.yards or 773 sq.meters

along with one temporary roof shed therein. All other

constructions made either in the first floor or in the

neighbouring/abutting land (which as per the petitioner's own

application for regularisation etc., is Government land) are

unauthorised constructions. The respondents 2 to 4 are

therefore given liberty to remove all the unauthorised

constructions viz., (a) the 1 floor (b) constructions made in st

the land which is occupied by the petitioners.

The impugned notice also clearly states that it is being

given in order to restore the entire building to the conformity

with the approved plan. Therefore, all the other structures,

not in conformity with the approved plan, are directed to be

removed immediately. As far as the land occupied is

concerned, the State can take steps as per law to recover

possession.

In view of the conclusions, this Court has reached that

the notices were not served on the same day this Court holds

that there is no failure of natural justice or compliance with

the provisions of Sections 452 and 636 of the Act. Therefore,

this Court holds that the case law which is peculiar to the

facts and circumstances of the respective cases is not

applicable to the present case.

Learned counsel also relied upon the lot of case law to

argue that the Commissioner cannot decide on the issue of

title etc. This was relating to the land occupied by the

petitioners. As pointed out by this Court, the Commissioner

is not "deciding" the title about the land which is occupied by

the petitioners. The petitioners own conduct in applying for

regularization of the land makes it clear that it is the

Government land. Even in the Writ Petition No.16425 of 2014

there is a clear admission that the land is Government land.

In that view of the matter, this Court holds that the said case

law is also not applicable. The conduct of the petitioners is

not free from doubt. Without approvals the second floor is

raised. Setbacks etc., are violated and the existing structure

is not as per the approved plan and within the petitioners

own site. Hence, this Court has to direct the removal of all

the unauthorized structures which are contrary to the

approved plan.

For all the above reasons, this Writ Petition is

dismissed. There shall be no order as to costs.

Consequently, the miscellaneous applications, pending

if any, shall also stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:19.01.2021 ssv