Andhra Pradesh High Court - Amravati

S Umavathi vs The State Of Andhra Pradesh on 17 November, 2022

       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                WRIT PETITION No.37382 OF 2022

JUDGMENT:-

1.     Heard Sri N. Subba Rao, learned senior advocate assisted

by Sri K. Sivarama Krishna, learned counsel for the petitioners,

Sri S. Lakshminarayana Reddy, learned standing counsel for

the respondents 2 to 4 and the learned Government Pleader for

the Municipal Administration and Urban Development Authority

who accepts the notice for the 1st respondent.

2. With the consent of the parties counsels, the writ petition

is being disposed of finally at this stage.

3. This writ petition under Article 226 of the Constitution of

India has been filed for the following relief:-

"It is therefore prayed that this Hon'ble Court may be pleased to issue a Writ or direction or order more particularly one in the nature of Writ of Mandamus declaring the Notice issued under Section 636 of APMC Act vide U.C No.04/WS279/49/2022/ACPV Dated 15.11.2022 in directing the petitioner to remove the deviation part in Sy.No. 12/1A1 of Kapparada Village, Ward No. 49, Zone V, G.V.M.C Visakhapatnam within 24 hours from the date of receiving the impugned notice without considering my representation dated 05.11.2022 as illegal arbitrary without having without having any authority contrary to principles of natural justice contrary to the Ratio laid down by this Hon'ble Court in 3 Aces, Hyderabad Vs Municipal Corporation Hyderabad (AIR 1995 AP 17) and Contrary to the provisions of Greater Hyderabad

Municipal Corporation Act, 1955 and rules made there under and further in violation of Articles 21 and 300-A of Constitution of India and consequently set aside the Notice No.04/WS279/49/2022/ACPV Dt 15.11.2022 issued by the 2nd respondent and pass necessary orders."

4. Sri N. Subba Rao, learned senior advocate submits that

the petitioners were served with notice bearing

No.U.C.No.04/2022/GVMC dated 17.10.2022, signed by the

Assistant City Planner on 31.10.2022, under Section 452(1) and

Section 461(1) of the Andhra Pradesh Municipal Corporation

Act, 1955 (for short, "the A.P. M.C. Act, 1955") showing certain

deviations in the construction of the building by the petitioner

and thereby time was granted to show sufficient cause. The

petitioners filed their reply/response dated 05.11.2022 received

in the office of the 2nd respondent, inter alia disputing the

contents of the notice. But, the 3rd respondent passed the

impugned order dated 15.11.2022 under Section 636 of the

A.P.M.C Act directing the petitioners to remove those deviations

within 24 hours, failing which the same shall be demolished by

the G.V.M.C at the expenses to be recovered from the

petitioners.

5. Challenging the order dated 15.11.2022, learned senior

advocate submits that the order could not have been passed

under Section 636 of the A.P.M.C. Act, the notice was given

under Section 452(1) and not under Section 636 and secondly

that as the notice was given under Section 452(1) of the

A.P.M.C. Act to which the petitioners submitted reply the

authority should have considered the petitioner's explanation

under sub section (2) of Section 452 and pass appropriate order

which was not done and even from the perusal of the impugned

order passed under Section 636, it is evident that the

petitioner's explanation to the show cause notice, was not

considered at all.

6. Sri S. Lakshminarayana Reddy, learned standing counsel

fairly submits that the petitioners' reply/explanation does not

find consideration in the impugned order, though Ex.P.4 shows

receiving of such explanation in the office of the 2nd respondent,

which might not have been placed before the authority passing

the order, for consideration.

7. Sri S. Lakshminarayana Reddy submits that as the notice

was given under Section 452(1) of the Act, after considering the

petitioner's reply, the order should have passed under sub

section (2) of Section 452 of the A.P.M.C.Act.

8. Section 636 of A.P.M.C Act reads as under:

"636. (1) If any work or thing requiring the written permission of the Commissioner under any provision of this Act or any rule, regulation or bye-law is done by any person without obtaining such written permission or if such written permission is

subsequently suspended or revoked for any reason by the Commissioner, such work or thing shall be deemed to be unauthorised and subject to any other provision of this Act the Commissioner may at any time, by written notice, require that the same shall be removed, pulled down or undone as the case may be, by the person so carrying out or doing if the person carrying out such work or doing such thing is not the owner at the time of such notice then the owner at the time of giving such notice shall be liable for carrying out the requisitions of the Commissioner.

(2) If within the period specified in such written notice the requisitions contained therein are not carried out by the person or owner, as the case may be, the Commissioner may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner as the case may be."

9. A perusal of Section 636 of the Act shows that an order

can be passed thereunder if the construction is raised without

the written permission of the Commissioner i.e., building

permit, or if such permission is subsequently suspended or

revoked, after giving notice. In the present case as has been

submitted by the learned counsel for the petitioners, the

permission was granted for construction. Even in the notice

given to the petitioners under Section 452(1) it is not the case of

the respondents that such permission was revoked or

suspended. On the contrary the notice indicates the alleged

deviations in construction.

10. In view of the aforesaid, the order passed under Section

631 of the A.P.M.C. Act cannot be sustained.

11. Section 452 of the A.P.M.C. Act reads as under:

(1) If the Commissioner is satisfied that the construction or re- construction of any building or execution of any work as described in section 433 is commenced or carried out contrary to the provisions of the Act or building rules or bye-laws made thereunder, he shall make a provisional order requiring the person who is constructing or re-constructing such building or executing such work or has constructed or re-constructed such building or executed such work to demolish such unauthorized construction or re-construction or work within a period specified to bring such construction or re-construction of the building or work in conformity with the provisions of the Act or building rules or Bye-laws made thereunder and may also direct that until the said order is complied with, the concerned person shall 315. Substituted by Act No.11 of 2017. Power of Commissioner to cancel permission on the ground of material misrepresentation by applicant. Inspection of buildings in course of erection, alteration, etc. Demolition or alteration of the building work unlawfully commenced, carried on or completed and appeal thereon. 314 [Act No. II of 1956] refrain from proceeding with, such construction or reconstruction of the building or work.

(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on such person mentioned in sub-section (1) with a notice requiring him to show cause within a reasonable time to be specified in such notice as to why the order should not be confirmed.

(3) If the person mentioned in sub-section (1) fails to show cause to the satisfaction of the Commissioner, he may confirm the order with such modification as he thinks fit and serve the confirmation order on such person and such order shall be binding on such person; and such person shall be liable for carrying out the requisitions of the Commissioner within the period specified in such confirmation order.

(4) If within the period specified in such confirmation order, the requisitions contained therein are not carried out by such person the Commissioner may demolish such unauthorized construction or reconstruction or work and the expenses thereof shall be recoverable from the said person.

(5) Ay person aggrieved by an order of the Commissioner made under sub-section (3) may, within fifteen days from the date of receipt of the order prefer an appeal against the order to the Municipal Building Tribunal appointed under section 462-A.

(6) Where an appeal is preferred under sub-section (5) against an order made under sub-section (3), the Municipal Building Tribunal may stay the enforcement of the order on such terms, and for such period, as it may think fit:

Provided that where the construction or re-

construction of the building or the execution of the work has not been completed at the time of the order made under sub- section [Act No. II of 1956] 315 (3), no order staying the enforcement of the order made under that sub-section shall be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such construction or re-construction or work pending the disposal of the appeal.

(7) Save as provided in this section, no court shall entertain any suit, appeal, application or other proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.

(8) Every order made by the Municipal Building Tribunal on appeal and, subject to such order, the order made by the Commissioner under sub-section (3) shall be final and conclusive.

(9) Where no appeal has been preferred against an order made by the Commissioner under sub-section (3) or where an order under that sub-section has been confirmed on appeal, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therin, or as the case may be, within the period, if any, fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as arrears of property tax under this Act

12. A bare perusal of Section 452 of the A.P.M.C Act shows

that the provisional order passed under sub section(1) is to be

served and requiring the person concerned to show cause as to

why the provisional order be not confirmed. The show cause

notice is served under sub section (2) and then the person

concerned fails to show cause to the satisfaction of the

Commissioner, he may confirm the order with or without

modification under sub section (3).

13. The petitioner's reply/explanation to the notice under

Section 452(1) has not been considered and any order under

Section 452(2) with respect to the notice, on the ground the

notice was issued i.e., deviations, recording the satisfaction of