Madugula Krishna Rao vs The State Of Andhra Pradesh
2022 Latest Caselaw 8842 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               WRIT PETITION No.37316 of 2022

JUDGMENT:-

1.    Heard Sri V.S.R.Anjaneyulu, learned Senior Advocate

assisted by Smt. Vangala Sailaja, learned counsel for the

petitioner and learned Government Pleader for Municipal

Administration for the respondent No.1 and Sri K.Srinivasulu

Reddy, learned Standing counsel for the respondent No.2,

Srikakulam Urban Development Authority.

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

is being decided 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 just and essential that this Hon'ble Court may be pleased to issue a writ, order or direction particularly one in the nature of Writ of Mandamus declaring the proceedings Roc.No.194/2022/Buildings/SUDA, dated 05.09.2022 and Rc.No.194/Buildings/SUDA, dated 05.11.2022 issued by the Respondent No.2 as illegal and violative of Articles 14 and 300-A of Constitution of India, besides directing not to proceed further and pass such other orders as the Hon'ble Court deems fit and proper in the circumstances of the case."

4. The petitioner has challenged the impugned proceedings

Roc.No.194/2022/Buildings/SUDA, dated 05.09.2022 and

Roc.No.194/Buildings/SUDA, dated 05.11.2022 both issued by

the respondent No.2.

5. By the proceedings dated 05.09.2022, the petitioner's

application for regularization of row of shops constructed in an

extent of Ac.0.22 cents filed under Section 90-A of the Andhra

Pradesh Metropolitan Region and Urban Development

Authorities Act, 2016 (in short, 'the Act 2016') was rejected.

6. The petitioner's representation filed against the order

dated 05.09.2022, was rejected by the endorsement dated

05.11.2022.

7. Earlier the petitioner filed W.P.No.17688 of 2022, being

aggrieved from the action of the Vadrangi Gram Panchayat in

issuing provisional order for demolition of the constructions in

question.

8. Another W.P.No.26474 of 2021 was filed by the third

party seeking demolition of the alleged unauthorized

construction of the petitioner as no action was being taken by

the concerned Gram Panchayat.

9. W.P.No.27464 of 2021 was dismissed and W.P.No.17688

of 2021 was disposed of, leaving it open to the present petitioner

to avail the remedy available under Section 90-A of the Act,

2016 within specified period, with further direction that if said

application was filed the same shall be considered, decided and

disposed of by the authority in accordance with law. This Court

further provided that the concerned Gram Panchayat shall not

take any action against the petitioner, till such application was

disposed of.

10. The operative portion in paragraphs 34 and 35 of the

judgment dated 05.08.2022, is reproduced as under:-

"34. Consequently, W.P.No.26474 of 2021 is dismissed and W.P.No.17688 of 2021 is disposed of, leaving it open to the petitioner to avail of the remedy available under Section 90-A of the A.P. Metropolitan Region and Urban Development Authorities Act, 2016 within a period of two weeks from today. Any application filed by the petitioner, in this regard, would be considered and disposed of by the said authority, in accordance with law and the Gram Panchayath shall not take any action against the petitioner till such an application is disposed of. The Respondents shall then act in accordance with the decision taken in the application filed under section 90-A of the A.P. Metropolitan Region and Urban Development Authorities Act, 2016.

35. In the event of the petitioner failing to avail this remedy within the stipulated time, it would be open to the respondent Gram Panchayat to take further action in accordance with law. The record files produced by the learned Government pleader for Panchayat Raj, shall be returned to him. There shall be no order as to costs."

11. The petitioner filed the application on 16.08.2022 for

regularization under Section 90-A of the Act, 2016, which has

been rejected by the impugned endorsement dated 05.09.2022.

12. As per the impugned order the proposal was examined.

But, as the building was constructed in violation of the Building

Rules in respect of front setback in view of Section 90-A (1) of

the Act, 2016, the petitioners existing building was not eligible

for regularization.

13. The impugned order mentioned as under:-

"The proposal submitted by the applicant has been examined as per rules in force and as per Section 90 A (1) of AP MR & UDA Act, 2016 and observed that the building is constructed in violation of building rules in respect of front setback ie., the applicant has left only 7.00 Mts on ground including the road widening portion instead of required 10.57 M (6M front setback and 4.57 M road widening portion), thus the front setback is in violation of Building Rules.

In view of the above, the existing building is not eligible for Regularisation under Section 90-A (1), as explained above and is hereby rejected since it is not in accordance with the Section 90-A (1) of AP MR & UDA Act, 2016."

14. The learned Senior Advocate submits that the building

construction is as per the building rules. The petitioner had left

the sufficient setbacks as per the rules/development codes, vide

G.O.Ms.No.119, dated 28.03.2017, considering the height of the

building.

15. He further submits that as per the impugned order there

were certain defects in the petitioner's application but the

petitioner was neither informed nor granted time to remove the

defects. He has further placed reliance on the judgment of the

Hon'ble Apex Court in the case of Syed Muzaffar Ali vs.

Municipal Corporation of Delhi1, to contend that mere

departure from the authorized plan or putting up a construction

without sanction does not ipso facto and without more

necessarily and inevitably justify demolition of the structure; as

also in the case of M/s Rajatha Enterprises vs. S.K.Sharma

and others2.

16. Learned Senior Advocate further submits that the

authorities of the Gram Panchayat have reached the spot for

demolition of the building, though the Gram Panchayat

concerned has no jurisdiction which vests in the competent

Authority under the Act, 2016 to pass order of demolition, if

any.

17. Sri K.Srinivasulu, learned Standing counsel for the

respondent No.2 submits that building is constructed in

1995 Supp (4) SCC 426

AIR 1989 SC 860

violation of the building rules, as the petitioner did not leave the

required setback front, it could not be regularized under Section

90-A.

18. He further submits that, though the competent authority

to pass the order of demolition, in the present case, is the

Authority under the Act, 2016 and not the Gram Panchayat but

in view of the direction in Para 35 of the judgment dated

05.08.2022 in W.P.Nos.17688 and 26474 of 2021, the Gram

Panchayat might be proceeding to take further action, after the

order dated 05.09.2022, but so far the respondent No.2 has not

proceeded to demolish pursuant to the order dated 05.09.2022.

19. I have considered the submissions advanced by the

learned counsels for the parties and perused the material on

record.

20. Section 90-A of the Andhra Pradesh Metropolitan Region

and Urban Development Authorities Act, 2016, reads as under:-

"90-A. Regulation and Penalization of buildings constructed without sanctioned plan:

(1) It is open to the Metropolitan Commissioner or Vice- Chairman to regularize constructions made without obtaining sanctioned plan subject to fulfilling the following conditions:-

(a) Submission of building plans to the competent authority duly paying all categories of fees and charges.

(b) The construction shall be subject to the condition that all parameters laid down in relevant statutes, Master plan, Zonal Development Plan, Building Bye- Laws, Building Rules and other relevant Government Orders including Andhra Pradesh Fire Service Act, 1999 and the National Building Code are satisfied;

(c) Payment of penalty equivalent to Thirty Three Percent (33%) of the various categories of fees and charges payable by the applicant for obtaining building permission in addition to the regular fee and other charges payable.

(2) Any offence made punishable under this Act in respect of Non-High Rise buildings may be regularized by the Vice- Chairman or any officer authorized by the Vice-Chairman in this behalf to the extent of violations made to the setbacks on each side of each floor except building line up to 10% of the permissible setbacks, on payment of fine equivalent to one hundred percent of the value of the land as fixed by the Registration Department applicable at the time of regularization in respect of violated floor area, subject to the condition that the sanctioned plan has already been obtained in each case.

(3) Notwithstanding anything contained in the Act, in the case of Gram Panchayats falling in the Metropolitan Region or Urban Development Authority areas, the Metropolitan Commissioner or Vice-Chairman may regulate and penalize the construction of buildings, made by the owner, or by an individual as the case may be, unauthorizedly or in deviation of the sanctioned plan as on 31st day of August, 2018 as a onetime measure as per the procedure and by levying such penal amount as may be prescribed and upon payment of such amount, all pending or contemplated proceedings and action of enforcement

shall be deemed to have been withdrawn and the competent authority shall issue necessary occupancy Certificate to the owner or the individual as the case may be."

21. It is evident from Section 90-A (1) that it is open to the

Metropolitan Commissioner or the Vice-chairman to regularize

constructions made without obtaining sanctioned plan subject

to fulfilling the conditions mentioned under clause (a), (b) and

(c). As per clause (b), the construction shall be subject to the

condition that all parameters laid down in relevant statutes,

Master plan, Zonal Development Plan, Building Bye-laws,

Building Rules and other relevant Government Orders including

Andhra Pradesh Fire Service Act, 1999 and the Nation Building

Code are satisfied. The order has been passed rejecting the

application that the building is constructed in violation of the

building rules in respect of front setback. The requirement of

the setback as mentioned in the impugned order has been

disputed and it has been submitted that the different yardstick

of the front setback is applicable to the petitioner's building as

per the height of the building in terms of the G.O.Ms.No.119,

dated 28.03.2017 as per the table in the impugned order and

there is no violation of the building rules.

22. The impugned order records the following defects found in

the petitioner's application:-

"Further, the following defects are also found:

1. The applicant not submitted the detailed plans and site plans as per norms.

2. The applicant neither submitted then plans for entire document extent i.e. Ac.4.33 cents (deducting 0.26 cents from the total extent of Ac.4.59 cents as per the submitted plan)., nor submitted the documents for the extent of the building which was already constructed.

3. The Survey number and scheduled of the boundaries have not mentioned in the Regd. Will submitted in support of ownership documents."

23. The aforesaid defects ought to have been communicated

to the petitioner to remove the same before considering his

application under Section 90-A, to provide him the opportunity

to meet those defects and to remove within a reasonable time to

be fixed by the authority.

24. The Hon'ble Apex Court in the case of Syed Muzaffar Ali

(Supra) held that mere departure from the authorized plan or

putting up a construction without sanction does not ipso facto

and without more, necessarily and inevitably justify demolition

of the structure. There are cases and cases of such

unauthorized constructions. Some are amenable to

compounding and some may not be. There may be cases of

grave and serious breaches of the licensing provisions or

building regulations that may call for the extreme step of

demolition.

25. Paragraph No.4 of Syed Muzaffar Ali (supra) is

reproduced as under:-

"4. However, it is to be pointed out that the mere departure from the authorized plan or putting up a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorized constructions. Some are amenable to compounding and some may not be. There may be cases of grave and serious breaches of the licensing provisions or building regulations that may call for the extreme step of demolition."

26. With respect to the submission of the learned Senior

Advocate on the point that the Gram Panchayat has no

jurisdiction to take action for demolition which vests in the

competent authority under the Act, 2016, though the learned

Standing Counsel for the authority also submitted that the

Gram Panchayat concerned is not the competent authority to

pass the order of demolition and it is the competent authority

under the Act 2016, this Court is not entering into that aspect

of the matter to determine whether the concerned Gram

Panchayat or the Authority under the Act, 2016, is competent to

take the proceedings for demolition with respect to the

unauthorized constructions for the reason that on the other

ground the writ petition is being allowed, but expressing a view

prima facie that in view of Section 90A (3), in the case of Gram

panchayat's, falling in the Metropolitan Region or Urban

Development Authority Areas also the Metropolitan

Commissioner or the Vice-chairman has the power to regulate

and penalize such construction as one time measure, as on

31.08.2018. Regularization and penalization of the buildings

constructed without sanction plan, in the case of Gram

Panchayats falling in the Metropolitan Region or the Urban

Development Authority areas by the Commissioner or the vice-

chairman, appears to be a different act from the act of the

demolition of the unauthorized constructions which may be

taken by the competent authority, may be Panchayat or the

Authority under the Act, 2016 subject to the legal provisions in

this regard under the relevant statutes but merely on the

ground that the power of regularization being with the Authority

under the Act, 2016, the power of demolition will also be with

the same Authority and not with a different authority of the

Gram Panchayat is prima facie not necessarily a sustainable

argument.

27. This Court is however not expressing any final view on the

above point, leaving it open to be considered if and when the

occasion so arises.

28. This Court is of the considered view that the order dated

05.09.2022 has been passed in violation of the principles of

natural justice without informing as also without granting

opportunity to the petitioner about the defects in the application

for regularization, which are mentioned only in the impugned

order.

29. In the result, the impugned order is quashed and the

following directions are issued:-

(i) The petitioner shall remove the defects in his

application under Section 90-A of the Act 2016, as pointed out

in the impugned order, within a period of three (03) weeks from

the date of receipt of copy of this order.

(ii) Thereafter the respondent No.2 shall pass fresh

orders after affording opportunity of hearing to the petitioner

upon his application under Section 90-A of the Act 2016, in

accordance with law, within a further period of three (03) weeks

positively.

(iii) Till passing of the final orders as aforesaid, no

coercive action will be taken against the subject property.

(iv) If the petitioner fails to comply with direction (i)

aforesaid, the respondent No.2 shall still pass final orders on

the petitioner's application, as per law.

30. The writ petition is allowed in part with aforesaid

observations and directions.

31. It is made clear that this Court has not made any

observation with respect to correctness or otherwise of the

setbacks and the road widening nor with respect to the

petitioner's claim for regularization either way, which it would

be for the competent authority to decide.

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 18.11.2022

Note:-

Issue C.C in one week B/o SCS

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.37316 of 2022

Date: 18.11.2022

Scs