Idupulapati Gopi Krishna vs The State Of Ap
2023 Latest Caselaw 4196 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               WRIT PETITION No.23488 OF 2023

JUDGMENT:-

      Heard Sri V. V. Prabhakara Rao, learned counsel for the

petitioner and learned Government Pleader for Municipal

Administration for the respondent No.1 and Sri G. Naresh

Kumar, learned counsel, representing Sri M. Manohar Reddy,

learned Standing Counsel for the respondent No.2.

2. 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 order or direction to the respondents herein to declare the notice No. 09/2023 dated 26-8-2023 issued by the 2nd respondent to demolish the petitioner building in Rs.No.19/2A, 19/3A, 20/3 and 20/5A bearing door No. 19-11 situated at Kalidindivaristreet, Muralinagar, Kanuru, Penamaluru Mandal within the limits of YSR Tadigadapa Municipality and further declared that the notice dated 26-8-2023 is in violation of Articles 14, 300-A and in violation of principles of natural justice and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

3. The contention of the learned counsel for the petitioner is

that the respondent No.2 without serving any show cause

notice/provisional order on the petitioner, who is the owner of

the building and in whose name stands the building permit

order, the order of confirmation for demolition of the offending

part of the building was passed.

4. He submits that the show cause notice/provisional order

dated 18.08.2023 and the confirmation order dated 26.08.2023

were served to the petitioner on 03.09.2023. Consequently,

there is violation of principles of natural justice and the order

has been without affording any opportunity of hearing to the

petitioner.

5. On the same submission as was advanced on 06.09.2023,

this Court while granting time to the learned Standing Counsel

to obtain instructions with respect to the service of the notice,

provided that till the next date no further action shall be taken

pursuant to the order of confirmation. The petitioner was also

directed not to make any further construction.

6. Today Sri G. Naresh Kumar, learned counsel on the basis

of written instructions from the respondent No.2 submits that

the provisional order/show cause notice dated 18.08.2023 was

issued in the name of the petitioner and was served on

petitioner's builder, K. Ankulu Babu. Since reply was not filed,

the order of confirmation dated 26.08.2023 was also passed

against the petitioner and the copy thereof was served to the

same person, the petitioner's builder on 29.08.2023.

7. Learned counsel for the petitioner submits that when the

petitioner approached the office of the respondent No.2, the

copy of the confirmation order and the provisional order was

served on 03.09.2023.

8. As per the instructions admittedly though the show cause

notice was issued in the name of the petitioner and the order of

confirmation was also passed against him, but the copy thereof

was not served to the petitioner but to the petitioner's alleged

builder.

9. Learned counsel for the petitioner submits that the

petitioner is the only owner of the building in question.

10. Section 217 of the Andhra Pradesh Municipalities Act

provides under sub-section (1) (b) that, if the Commissioner

finds that the work is otherwise than in accordance with plans

or specifications which have been approved; or contravening

any of the provisions of the Act or bye-laws, rules, order of

declaration, he may, by notice, require the owner of the building

within a period stated. So, as per Section 217 the notice is

required to be served to the owner of the building. Any provision

could not be shown by the learned counsel appearing for the

Municipality that under the provisions of the Act or the rules,

notice could be served on the alleged builder on behalf of the

owner of the building.

11. In view of the above, the order of confirmation passed

without serving notice under Section 217 to the petitioner the

owner, cannot be sustained.

12. Admittedly the copy of the provisional order/show cause

notice is served to the petitioner on 03.09.2023.

13. Consequently, the petitioner is granted opportunity to file

reply to the provisional order/show cause notice before the

respondent No.2 within a period of two (02) weeks from the date

of receipt of copy of this order, before the respondent No.2, upon

which the respondent No.2 shall pass fresh final order in

accordance with law within a period of three (03) weeks from the

date of receipt of copy of the order.

14. The notice was served on the petitioner's alleged builder

but as the petitioner's counsel has submitted that the petitioner

is the owner, and under the statutory provisions the owner has

to be given opportunity of hearing, there would be no question

of providing any opportunity of hearing to the alleged builder

upon which the provisional order/show cause notice was

served.

15. Till the final decision is taken, no coercive action would be

taken pursuant to the provisional order.

16. The petitioner shall also not raise any further

construction till the decision is taken as aforesaid.

17. If the petitioner fails to file the reply affidavit within the

period aforesaid, the protection granted under this order shall

not be available and then the respondent No.2 shall pass final

order even ex-parte.

18. The Writ Petition stands allowed in part, quashing the

order of confirmation dated 26.08.2023 but with further

direction as in earlier part of this order in Paras 13 to 17

(supra).

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 Note:-

Issue C. C by 19.09.2023 B/o:- SCS

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.23488 OF 2023

Date:12.09.2023 Scs.