Andhra Pradesh High Court - Amravati
Smt. Vegesna Rama Sitha, vs The Bhimavaram Municipality, on 25 January, 2024
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION No.6560 of 2007
Vegesana Rama Sitha, W/o Penumatsa
Sitharamaraju, Hindu, aged about 50 years,
Husband‟s protection, R/o Dr.No.1-5/1-1,
Opp. Aditya College, 35th Ward,
Suryanarayanapuram, Bhimavaram - 534202,
West Godavari District.
... Petitioner.
Versus
The Bhimavaram Municipality, Rep. by its
Commissioner, Bhimavaram and another.
... Respondents.
Counsel for the petitioner : Sri V.S.R.Anjaneyulu
Counsel for respondent No.1 : Sri M.Manohar Reddy
Counsel for respondent No.2 : Sri N.Ashwini Kumar
ORDER
The Writ Petition is filed seeking the following relief:
"... to issue writ, order or direction, more particularly one
in the nature of Writ of Mandamus directing the
respondent No.1 to take appropriate action against the
Respondent No.2 for making illegal construction in the
property situate in R.S.No.70/1 and 71 of 35th Ward,
Suryanarayanapuram, Bhimavaram Municipality,
besides declaring its inaction, as illegal and ultra vires to
the provisions of Articles 14 of the Constitution of India
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and also the mandatory provision of the A.P.
Municipalities Act and Rules framed thereunder ... ..."
2. Averments in the affidavit, in brief, are that the
petitioner is the absolute owner and possessor of property
bearing Door No.1-5/1-1 of Suryanarayanapuram,
Bhimavaram Municipality having purchased the same under
a registered sale deed dated 30.10.1992. The 2nd Respondent
being owner of property situated in R.S.No.70/1 and 71 of
35th Ward of Bhimavaram Town, applied to 1st respondent to
sanction plan for the purpose of making construction of 4-
floor residential apartment complex. 2nd Respondent having
obtained permission, started making construction in violation
of sanction plan, zoning regulations and the building rules
and regulations. Petitioner made representation to 1st
respondent on 10.03.2007 and copies were marked to the
Director of Town Planning, Hyderabad and others. The
subordinates of 1st respondent visited the construction on
15.03.2007 and found violations and stated that necessary
action would be initiated. Even after lapse of one week, the
authorities failed to initiate any action. 2nd respondent
started construction without providing parking space. 2nd
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Respondent earlier constructed a compound wall in the site
belonged to 1st respondent-Municipality. Questioning the
inaction on the part of 1st respondent, the above writ petition
is filed.
3. Counter affidavit was filed on behalf of 2nd respondent.
It was contended, interalia, that 2nd respondent owns 4089
square yards of site. He applied for permission for
construction of G+3 storied building. 1st respondent
authorities approved the plan and accorded permission vide
B.A.No.41/TPSII/07, dated 01.03.2007. Petitioner owns plot
on the southern side and constructed 3 storied building in
deviation of sanctioned plan. Petitioner asked 2nd respondent
to sell the site, for which 2nd respondent did not agree. Notice
was affixed by the authorities of 1st respondent under Section
217 (3) of the A.P. Municipalities Act, 1965 (for short "the
Act"). No notice under Section 217 (1) & (2) was served. 2nd
Respondent filed suit O.S.No.129 of 2007 on the file of Senior
Civil Judge, Bhimavaram assailing the notice issued by 1st
respondent. Three columns of the building were removed as
per the direction of 1st respondent.
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4. Counter affidavit was filed on behalf of 1st respondent.
While not disputing about grant of building permission, it
was contended, interalia, that the Town Planning Supervisor
noticed some deviations in the construction of the building
made by 2nd respondent and reported the same to the
Commissioner on 08.03.2007. Notice dated 08.03.2007
under Section 217 (1) & (2) of the Act was issued. The 2nd
respondent never constructed compound wall in the site
belonged to 1st respondent. There are no encroachments
whatsoever over the site belonged to 1st respondent. The
husband of petitioner made a representation on 10.03.2007
to 1st respondent. The 1st respondent received the same on
14.03.2007, by that time 1st respondent already issued a
provisional notice dated 08.03.2007 under Section 217 (1) &
(2) of the Act. The confirmation notice dated 26.03.2007
under Section 217 (3) of the Act was issued. Charge sheet
dated 02.04.2007 under Section 340 of the Act was filed
against the 2nd respondent before the Special Judicial II Class
Magistrate, Bhimavaram. Challenging the notice dated
26.03.2007, 2nd respondent filed suit O.S.No.128 of 2007 on
the file of Senior Civil Judge, Bhimavaram against the
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Municipal Council, Bhimavaram and ad-interim injunction
was granted and necessary action will be initiated as per law,
after the injunction is vacated.
5. Reply affidavit was filed on behalf of petitioner
reiterating the averments in the writ affidavit. In the reply
affidavit, petitioner denied the allegations made by the 2nd
respondent.
6. As seen from the docket proceedings, the writ petition
was listed on 02.04.2007 and was adjourned to 03.04.2007,
12.04.2007, 28.02.2008. On 28.02.2008, interim order was
granted in WPMP No.8387 of 2007. 1st Respondent filed
WVMP No.2242 of 2007. On 01.05.2009, WVMP No.2242 of
2007 was allowed and thereby WPMP No.8387 of 2007 was
dismissed. Against the dismissal of WPMP No.8387 of 2007,
petitioner filed intra-court appeal in W.A.No.1203 of 2009.
Eventually, the said intra-court appeal was disposed on
21.10.2013 and operative portion in W.A.No.1203 of 2009
reads thus:
"This writ appeal has been preferred against the
order, dated 01.05.2009, passed by the learned single
Judge in W.V.M.P.No.2242 of 2007 in W.P.No.560 of
2007, whereby His Lordship vacated the interim order
granted earlier.
SRSJ
After going through the impugned order of the
learned Trial Judge, we are of the view that nothing
remains to be decided n this appeal. We are also in
doubt whether anything survives in the writ petition.
However, we cannot decide the writ petition.
We, therefore, disposed of the appeal without
passing any further order except recording compliance of
order, dated 27.07.2012, passed by this Court earlier."
The subordinate civil Court disposed of CMA No.34 of
2011 on 18.12.2012 in terms of order of the Court on
27.07.2012.
7. Heard Sri V.S.R.Anjaneyulu, learned senior counsel
assisted by V.Satya Prasad, learned counsel for petitioner, Sri
Abhishek, learned counsel representing Sri M.Manohar
Reddy, learned standing counsel for 1st respondent and Sri
N.Ashwini Kumar, learned counsel for 2nd respondent.
8. Learned senior counsel for petitioner would submit that
2nd respondent constructed the building in violation of
sanction plan. He would also submit that in view of
developments pending the writ petition, petitioner filed WPMP
43045 of 2013 seeking amendment to relief in writ petition to
include the word "demolition of the structure made". He
would also submit when the matter is sub-judice,
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regularizing the building as per G.O.Ms.No.128 MA&UD,
dated 22.05.2015 by the authorities is nothing but
interference with the judicial process and hence, it amounts
to contempt of court and thus the respondent authority is
liable to the punished.
9. Learned counsel for 2nd respondent would submit that
the 2nd respondent did not encroach the land belonged to 1st
respondent. He would also submit that deviations qua the
construction, 2nd respondent made application as per
building penalization scheme under G.O.Ms.No.128 MA&UD,
dated 22.05.2015. The commissioner of 1st respondent by
proceedings No.BPS/BHI/1/0320115, dated 17.05.2016
regularized the violations and the 2nd respondent paid
Rs.4,40,722/-. Accordingly, building was assessed to tax and
2nd respondent has been paying taxes. He would also submit
that prayer sought for in the writ petition does not survive, in
view of regularization of building under scheme. He would
also submit that amendment sought for in the writ petition
would change the very nature and hence such an amendment
should not be allowed. He would also submit that I.A.No.1 of
2023 filed by the petitioner to permit the petitioner to file
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duplicate copy of I.A.No.43045 of 2013 is to be dismissed,
since the affidavit was deposed by the junior advocate,
whereas in verification statement, the name of petitioner is
shown as deponent.
10. Learned standing counsel for 1st respondent did not
dispute about the regularization.
11. In reply, learned senior counsel would submit that
W.P.M.P.No.43045 of 2013 was not available in the Court
bundle. During the course of hearing, the Court directed the
petitioner to file petition and hence, junior advocate deposed
to the affidavit and thus, learned senior counsel urged the
Court to order I.A.No.1 of 2023.
12. Now the point for consideration is:
Whether 1st respondent failed to initiate action
in accordance with provisions of the Andhra
Pradesh Municipalities Act, 1965 qua the
constructions made by 2nd respondent?
13. As per the material available on record, there is no
dispute regarding grant of building permission in favour of
2nd respondent on 01.03.2007. As seen from Ex.P1 filed by
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the petitioner, husband of petitioner made representation to
the Commissioner of 1st respondent on 10.03.2007 and to the
Director of Town and Country Planning, Hyderabad about
construction made by 2nd respondent in deviation of sanction
plan. Even before the said complaint, notice under Section
217 (1) & (2) of the Act was issued by 1st respondent to 2nd
respondent on 08.03.2007, however, there is dispute
regarding service of said notice. There is no dispute about
issuance of notice under Section 217 (3) of the Act on
26.03.2007 and filing of charge sheet on 02.04.2007 before
the Special Judicial II Class Magistrate, Bhimavaram. The
2nd Respondent filed suit O.S.No.128 of 2007 assailing
confirmation notice dated 26.03.2007. Learned Civil Court
granted ad-interim injunction and in CMA, it was partly
modified against which, CRP was also filed.
14. Thus, as seen from the material on record, even before
complaint/representation made by the husband of petitioner,
1st respondent set the law into motion qua the constructions
made by the 2nd respondent in deviation of sanction plan. It is
also undisputed fact that interim order was granted on
28.02.2008 and the same was vacated on 01.05.2009 and the
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intra-court appeal filed by petitioner was disposed of by the
Division Bench with the observation extracted supra.
15. As seen from the material papers C.C.No.1815 of 2009
filed by the petitioner in W.A.No.1203 of 2009 was closed on
21.10.2013. The application filed by the petitioner with a
prayer to demolish the structure was not ordered by the
Court earlier. In fact, as seen from the docket proceedings,
counter was filed by 2nd respondent opposing the application
in December, 2013. Thereafter the matter was adjourned to
30.12.2023 at the request of learned counsel for petitioner on
two occasions. On 24.01.2014 learned single Judge directed
the Registry to obtain necessary orders from the Hon‟ble the
Chief Judge, to list writ petition and C.R.P.No.103 of 2013
(O.S.No.128 of 2007). Again on 05.02.2014, learned single
Judge directed the Registry to get orders from the Hon‟ble the
Chief Justice. Thereafter, the matter was listed on
25.01.2023, since none appeared for the petitioner, it was
adjourned to 02.02.2023 and again at request, the matter
was adjourned.
SRSJ
16. The prayer in the writ petition is to direct the 1st
respondent to initiate action. In fact, as discussed supra, law
was set into motion even before filing of writ petition. Since
the action was initiated, in the opinion of this court, writ
petition itself is not maintainable.
17. Regarding the amendment of prayer, it is pertinent to
mention here that the interim order granted earlier was
vacated on 01.05.2009. Unofficial respondent proceeded with
construction and completed the same. Later, the deviated
portion, by virtue of building penalization scheme, was
regularized. The proposed amendment sought for to direct the
2nd respondent to demolish the structure, in the opinion of
this Court, at this juncture, in the facts and circumstances of
the case, is impermissible. Of course, this Court is conscious
of the fact that original amendment petition is not before the
Court. However, copy of the application is made available
during the hearing.
18. During the course of hearing, when the learned senior
counsel brought to the notice of Court about I.A.No.1 of 2013
and since I.A.No.1 of 2013 is not available, permission was
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sought to reconstruct I.A.No.1 of 2013. Accordingly, I.A.No.1
of 2023 was filed. The affidavit was deposed by junior
advocate. The verification statement of the affidavit reads
thus:
"I, Vegesna Rama Sitha, being the deponent acquainted
with the facts, do hereby verify and state that the
contents of the affidavit are true to my personal
knowledge are facts, based on records and on legal
advice, believed to be true."
19. Learned counsel for 2nd respondent would submit that
affidavit was deposed by junior advocate to reconstruct the
bundle and such a course is impermissible. Learned counsel
also relied upon certain authorities. However, the case at
hand, the learned junior advocate is not deposing a fact,
which is not within his knowledge. Junior counsel deposed
the affidavit bringing fact to the notice of the court i.e. non
availability of I.A. Thus, deposing of affidavit by the Junior
Counsel, in the facts of this case, this Court does not find any
irregularity. However, as rightly pointed out by the learned
counsel for 2nd respondent, slipshod attitude should be
curtailed. The verification portion extracted supra would
indicate that the learned junior advocate signed the affidavit
so casually even without verifying the verification statement.
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Since, the verification statement of affidavit is defective, this
Court is not inclined to accept the affidavit and hence,
I.A.No.1 of 2023 is rejected.
20. The other contention of learned senior counsel is that
regularization of building pending the writ petition would
amount to interfering with judicial process. This Court is not
persuaded with the said submission. The building
regularization scheme was promulgated by the Government
for penalization, vide G.O.Ms.No.128 MA&UD dated
22.05.2015. Clause 7(1) in the said G.O., disentitles an
individual to get the benefit of penalization, if that site is
under legal litigation/dispute regarding ownership of site or
building. The word „Legal litigation‟ in the opinion of this
court, should relate dispute of ownership or site or building.
Case at hand, since there is no dispute regarding ownership
of site or building, clause 7 of the G.O. will not attract to the
facts of the case.
SRSJ
21. Learned senior counsel placed reliance on judgment in
Pratap Singh Vs. Gurubaksh Singh1 and Govind Sahai Vs.
State of U.P.2. However, in the considered opinion of this
Court, ratio in the judgments referred to supra would not
apply to the facts of this case. In appropriate case, this Court
will adjudicate that issue. In fact, learned counsel for 2nd
respondent filed penalization orders issued by the 1st
respondent, vide USR No.135161 of 2023 dated 27.12.2023.
22. In view of discussion made supra, this Court does not
find any merit in this writ petition and the same is liable to
be dismissed.
23. Accordingly, the Writ Petition is dismissed. I.A.No.1 of
2013 is closed. No costs.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
________________________________
JUSTICE SUBBA REDDY SATTI
25th January,2024
PVD
AIR 1962 SC 1172 = 1962 SCC OnLine SC 78
AIR 1968 SC 1513 =
