T C V Narasimha Rao vs The State Of Ap
2023 Latest Caselaw 4195 AP

       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                WRIT PETITION No.23706 of 2023

JUDGMENT:-

1.     Heard Sri T.Sai Surya, learned counsel appearing for the

petitioner, learned Government Pleader for Municipal Administration

appearing for respondent Nos.1 and 2, Sri M.Manohar Reddy, learned

Standing Counsel appearing for respondent No.3, learned

Government Pleader for Excise appearing for respondent No.4 and Sri

V.V.Satish, learned counsel appearing for respondent No.5 and

perused the material on record.

2. This writ petition under Article 226 of the Constitution of India

has been filed for the following relief:-

"To issue a writ, order or direction more particularly one in the nature of a writ of Mandamus declaring the action of respondent nos.2 to 4 in not taking necessary action for removing illegal and unauthorized construction of commercial complex and Gopikrishna Bar and Restaurant which is being operated in new Digital Door No.128, Street No.400 of Bhimavarm Town, West Godavari by the 5th respondent which is a construction made without any approved municipal plan and in contravention of Zoning restrictions and also against AP Excise & Prohibition Policy as illegal, arbitrary and in violation of article 14 and 21 of the Constitution of India and consequently direct the respondent nos.2 to 4 to take necessary action to remove the illegal and unauthorized construction of commercial complex and Gopikrishna Bar and Restaurant which is being operated in new Digital Door No.28, Street No.400 of Bhimavarm Town, West Godavari by the 5th respondent and to pass such other order or order(s) as this Hon'ble court deem fit and proper in the circumstances of the case."

3. This Writ Petition is filed by the petitioner for direction to

respondent Nos.2 to 4 to consider the representation with respect to

the alleged un-authorised construction of a commercial complex and

Gopikrishna Bar and Restaurant, which is being operated in the new

Digital Door No.128, Street No.400 of Bhimavaram Town, West

Godavari, by the respondent No.5 without any approval of the

municipal plan and in contravention of the zoning regulations and

also against the A.P. Excise and Prohibition Policy.

4. Learned counsel for the petitioner submits that the petitioner is

the owner of the new building being constructed at Door No.21-0156-

12A in Ward No.34 of Bhimavarm Town after obtaining all the

requisite permissions from the concerned authorities. On the opposite

side of the petitioner's building, there was a building in which one

school was constructed. Respondent No.5, without obtaining any

permission from the Municipal authorities, converted the school

building into a commercial building and also constructed

unauthorised structures directly facing the main road. He submits

that in raising the grievances, a representation was submitted to

respondent Nos.3 and 4 on 22.07.2023. But, to date, no action has

been taken.

5. At this stage, Sri V.V.Satish, appearing for respondent No.5

submits that the petitioner has no locus to object to the activities of

respondent No.5. He further submits that the construction is not

unauthorised.

6. The objection as regards locus of the petitioner is concerned

the same is unsustainable as the petitioner is resident opposite to the

alleged unauthorized construction and the retail outlet is directly

facing the main road and consequently can maintain the Writ Petition

being aggrieved for such act of the respondent No.5.

7. Learned Government Pleader for Excise appearing for

respondent No.4 also submits that respondent No.4 is not concerned

with the matter as respondent No.4 cannot look into the grievance of

the petitioner with respect to the construction being authorised or

not.

8. The representation of the petitioner dated 22.07.2023 shows

that the grievance has also been raised that the respondent No.5 has

opened a retail outlet directly facing the main road from which sealed

bottles of liquor are being sold to retail consumers, which is in

contravention of the Excise policy.

9. Consequently, it cannot be said that respondent No.4 is not

concerned. Considering the contents of the representation, it was also

for the respondent No.4 to have taken a decision on the petitioner's

representation in which respondent No.4 has failed. The submission

as advanced by the learned counsel for respondent No.4 is

unsustainable and is rejected.

10. Without entering into the factual dispute, as to whether the

construction is unauthorised or not as the same is disputed question

of fact requiring evidence and as the Municipal authorities at the

initial state, are in a position to determine such question, to meet the

ends of Justice, this petition is being disposed of with a direction to

respondent Nos.3 and 4 to consider the petitioner's representation

with respect to their subject matter i.e., unauthorised construction &

opening of retail outlet respectively, after affording an opportunity of

hearing to the petitioner and the respondent No.5, within a period of

four (04) weeks from the date copy of this order, is served to

respondent Nos.3 and 4. It is open for the respondent No.5 to raise

the objections to the petitioner's representation before the said

authorities, which shall also be considered as per law.

11. With the above observations and directions, the Writ Petition is

disposed of finally.

No order as to costs.

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

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 12.09.2023 DNV

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.23706 of 2023

Date: 12.09.2023

DNV