Nanduri Rajyalakshmi vs The State Of Ap
2022 Latest Caselaw 1637 AP

     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.

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

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

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.

1999 SCC OnLine AP 705

2003 (3) ALD 195

1989 AIR 860

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,

1994 SCC OnLine AP 176

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.

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

2007 (5) ALD 203

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

2018 SCC OnLine Hyd 139

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

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

W.P.No.25765 of 2020

Dated:07.04.2022

HariN/EPS

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.