Andhra Pradesh High Court - Amravati

Boddu Prakasamma vs The Greater Visakhapatnam ... on 6 January, 2023

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

             WRIT PETITION Nos.598 & 599 OF 2023

COMMON JUDGMENT:-


      Heard Sri Ghanta Rama Rao, learned senior advocate

assisted by Sri G. Manikhanta, learned counsel for the

petitioner and Sri S. Lakshminarayana Reddy, learned standing

counsel for the respondents 2 and 3.

2. Notice has been accepted by the learned Government

Pleader for Municipal Administration and Urban Development

Authority for the 1st respondent.

3. W.P.No.598 of 2023 has been filed by the petitioner High

Yield Estates Private Limited, represented by its Managing

Director under Article 226 of the Constitution of India,

challenging the notice dated 24.12.2022, issued by the 2nd

respondent under Section 461(1) of the A.P. Municipal

Corporation Act, 1955. Similar notices have been issued to the

petitioner with respect to the different buildings being

constructed by the petitioner, subject matter of the writ petition.

4. W.P.No.599 of 2023 has been filed by the same petitioner

as petitioner No.12 along with 11 other petitioners, to whom the

petitioner No.12 has allotted one flat each, in total 11 flats, out

of 34 flats of Ac.1.60 cents, in Sy.No.195/2A2. The challenge in

this petition is also to the same notices dated 24.12.2022 on the

same subject but given separately to all the petitioners.

5. The subject matter of both the writ petitions being the

same with the consent of the parties counsels both the writ

petitions are being decided by the common judgment.

6. By the impugned notices, the petitioners have been

granted time to show sufficient cause within the specified time

as to why the action of removal, alteration or pulling down of

the building in question be not taken with further direction to

the petitioners to stop construction work forthwith.

7. The petitioners have filed reply to the notices on

02.01.2023, inter alia submitting that the petitioners are not

making unauthorized constructions but have obtained the

building permission on different dates for each building. Along

with the reply the petitioners are said to have filed the copy of

the building permissions as well.

8. Sri Ghanta Rama Rao, learned senior counsel submits

that the notices proceed on the assumption that the petitioners

constructions are unauthorized constructions. He submits that

with respect to each building, on the petitioners applications,

the building permissions having been granted on different dates

in the month of December, 2022. The said building permissions

are still intact and not having been revoked or cancelled under

the statutory provisions of the A.P. Municipal Corporation Act,

1955 (in short, "the Act, 1955") and also there being no

proceedings with respect to any alleged deviations either under

Section 452, or Section 450 of the Act, 1955, the constructions

being raised by the petitioners cannot be said to be

unauthorized. Consequently, the notices issued are without

jurisdiction and the respondent authorities cannot in law direct

the petitioners to stop the construction work.

9. Sri S. Lakshminarayana Reddy, learned standing counsel,

based on the written instructions submits that though the

building permission was granted online but such grant is

subject to the terms and conditions specified in the building

permit itself. One of those conditions is in para No.16 which

inter alia provides that the permission was given based on the

inputs of pages, documents and drawings provided by the

applicant for such building permission. The final approval of

proceedings was subject to verification of the report and

documents of concerned officials including the site visit report

and any deviation identified was to lead modification/rejection

of the proceedings for building permission.

10. Sri S. Lakshminarayana Reddy further submits that the

A.P. Building Rules, 2017 (in short, "the Rules, 2017") under

Rule 3(22)(c) specifically provides for post verification of building

permissions. Shortfall notices were given on 29.12.2022

indicating the shortfall being inter alia (1) that there is no

approach road left and (2) layout open space charges were not

paid. But, the shortfall was not removed and any reply was also

not filed.

11. Sri Ghanta Rama Rao, learned senior advocate submits

that the shortfall notices have not been served to the petitioners

to which learned standing counsel for the Corporation submits

that the shortfall notices were sent to the login of the Licensed

Technical Persons (in short LTP) through which the building

permission was applied online. Consequently, he submits that

there is no illegality in issuing the impugned notices which

cannot be said to be without jurisdiction.

12. On a specific query as to whether in the shortfall notices

some time has been provided to remove the shortfall or/and to

file replies, learned standing counsel submits that it has not

been so specified but if the reply is filed to those notices within

a reasonable time, the same shall also be considered by the

competent authority, along with the petitioners' reply already

submitted to the impugned notices.

13. I have considered the submissions advanced by the

learned counsels for the parties and perused the material on

record.

14. The submission of the learned senior advocate is that the

construction is being raised after obtaining the building

permission which is not yet revoked or cancelled and the

deviations, if any, have also not been specified in the impugned

notices, and further as any notice under Section 450 or Section

452 of the Act, 1955, has not been given, the constructions

cannot be termed to be unauthorized. Consequently the notice

is without jurisdiction.

15. Rule 3 of the Rules, 2017, which provides for a stream

line of building plan approvals, lays down the procedural

requirements for obtaining building permission. Rule 3, Sub

Rule 10, Clause (i) inter alia provides that every person who

intends to erect, re-erect or make alteration in any place in a

building or demolition of any building shall submit an

application for building permission in writing and/or through

online as prescribed, to the concerned authority, of his intention

in the prescribed proforma. Clause (a) of sub Rule (22) of Rule,

3, defines Online Building Permission Management System

which means the Implementation of Information and

Communication Technology (ICT) enabled Integrated Online

Building Permission Management System where permission for

any category of buildings will be issued. Clause (b) provides

that the sanction of building permission of all categories of the

building including high raise building which are permissible in

normal course as per the zoning regulations and as per the

rules and with all prescribed documents and plans shall be

done and through the Online Building permission Management

System, by the respective sanctioning authority, except in case

of Gram Panchayat falling in the areas specified under Clause

(b) itself.

16. Rule 3 sub Rule (22) (c) provides for post verification of

building permissions, according to this provision, after sanction

of the building permissions through the Online Building

Permission Management System, the respective local

authorities, competent authority and sanctioning authority,

shall examine and scrutinize the building permission as per the

categories given, in detail and verify the compliance of the legal

provisions, the land uses as per the Master Plan/General Town

Planning, Schemes, layouts, relevant rules and regulations as

applicable and wherever there has been any false submission,

misrepresentation of material facts in the application on which

the building permission was sanctioned etc., it shall be invalid

and shall be deemed to be cancelled. It further provides that

the concerned authorities shall be entitled to take appropriate

action against such Licensed Technical Personnel and any

person whoever is responsible as also against the construction.

17. From the aforesaid, it is evident that the application for

building permission is to be submitted through online and the

permission shall be issued through the Online Building

Permission Management System. After sanctioning of the

building permission, the post verification of the building

permission is legally permissible under the Building Rules,

2017.

18. So, the building permission is subject to the post

verification and in case of violation of the relevant rules, the

regulations or non compliance with the provisions of land uses

or false submission, misrepresentation of material facts etc., the

building permission shall be invalid and shall be deemed to be

cancelled.

19. The building permission itself contained the condition in

para No.16 that the same was subject to verification.

20. In view of the above legal provisions the submission of the

learned senior advocate that once the Building Permission has

been granted and so long as the building permission is not

cancelled, the construction cannot be directed to be stopped by

saying it to be unauthorized is not acceptable. Rule 3(22)(c) of

the Rules, 2017 specifically provides that on post verification, in

view of the shortcomings etc., or non compliance with the

provisions as mentioned in such rule, the building permission

shall be invalid and deemed to be cancelled.

21. In the present case, the petitioners have been issued the

impugned notices to which they have already filed their reply.

22. The shortfall notices have also been uploaded/sent to the

23. It is open to the petitioners or/and the person competent

under law under liability to remove the shortcoming or/and to

submit their reply raising such objections as may be prescribed

before the competent authority.

24. This court is of the considered view that in the facts and

circumstances of the case as discussed above and in the light of

the legal provisions, it cannot be said that the show cause

notice is without jurisdiction.

25. There is no challenge to the impugned notices on the

ground of patent lack of jurisdiction in the authority issuing the

notices.

26. The Court does not find any legal ground to interfere with

the show cause notices in the exercise of writ jurisdiction.

27. In the result, the writ petition is being disposed of finally

in the following terms:

i) No case for interference with the impugned notices, is made out.

ii) The 2nd respondent- Zonal Commissioner, Zone-

             VIII,    Greater          Visakhapatnam       Municipal
             Corporation,       Visakhapatnam/the         competent

authority, shall consider the petitioners reply to the impugned show cause notices and pass appropriate orders in accordance with law.

iii) The petitioners are granted liberty to file reply to the shortfall notices already uploaded on the Login of L.T.P, within a period of two weeks from the date of receipt of copy of this order.