Raja Rajeswari Builders vs The State Of Andhra Pradesh,
2024 Latest Caselaw 9751 AP

Andhra Pradesh High Court - Amravati

Raja Rajeswari Builders vs The State Of Andhra Pradesh, on 29 October, 2024

APHC010157442024
                   IN THE HIGH COURT OF ANDHRA PRADESH Bench Sr.No:-26
                                                           [3483]
                                AT AMARAVATI

                         WRIT APPEAL NO: 324 of 2024

Raja Rajeswari Builders                                             ...Appellant

     Vs.

The State Of Andhra Pradesh and Others                         ...Respondent(s)


                                    **********

Advocate for Appellant:                  P. Kamlakar

Advocate(s) for Respondent(s):           J. Dileep Kumar (SC FOR GVMC)



         CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
                 SRI JUSTICE RAVI CHEEMALAPATI

         DATE       :   .10.2024

PER DHIRAJ SINGH THAKUR, CJ:

The present writ appeal has been preferred against the judgment and

order, dated 20.02.2024, passed in W.P. No.25182 of 2023 whereby the

prayer of the petition for refund of an amount of Rs.3,65,025/- was rejected

and their petition was dismissed.

2. Briefly stated, the material facts are that the appellant is a Developer,

who entered into Development Agreement with owners of the property for

purposes of construction of residential premises. Landowners, it is stated,

applied for permission for construction of the residential apartment, which was

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accorded by the GVMC - respondent No.2 herein. The appellant claims that

the construction was completed but with certain deviations. With a view to

have the deviations regularized, the appellant approached the respondents

under the Building Penalization Scheme, issued vide G.O.Ms.No.901, dated

31.12.2007. An amount of Rs.3,65,025/- was paid by virtue of Demand Drafts,

dated 10.07.2008 and 01.12.2009, for an amount of Rs.1,50,000/- and

Rs.2,15,025/- respectively.

The application, however, came to be rejected by virtue of order, dated

03.04.2010, on the ground that the G.O. was applicable to the buildings, which

are completed before 15.12.2007 and that since the said building was not

completed before 15.12.2007, the G.O. would not apply.

The appellant applied yet again for regularization of the deviations

under yet another Building Penalization Scheme by the Government notified

by virtue of G.O.Ms.No.128, dated 22.05.2015. The requisite application

money required to be paid along with the said application was duly deposited

and the appellant's claim is that the deviations were regularized vide

proceedings, dated 25.07.2016.

3. For the first time on 27.03.2017, a request was made by the appellant to

respondent No.2 to adjust the amount of Rs.3,65,025/-, which was paid during

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the BPS Scheme in the year 2007, towards property tax, which was due and

payable by the appellant. This was rejected by respondent No.2 vide order,

dated 16.12.2017. Another representation, dated 18.03.2018, was filed by the

appellant with respondent No.2 seeking refund of an amount of Rs.3,65,025/-.

This was followed by legal notice, dated 18.03.2019.

The representation was rejected by virtue of order, dated 31.12.2020,

by respondent No.2 Commissioner in which the appellant stood informed that

the amount deposited in the year 2007 cannot be refunded as the appellant

had made certain additions/alterations to the building and thus found not

eligible for the refund of the said amount.

4. At this stage, it may be relevant to refer to G.O.Ms.No.901, dated

31.12.2007, and in particular clause 7 thereof, which envisages as under:

"7. Violation after submission of Application: During verification, if it is found that the applicant has undertaken further additions or extensions to the existing building, then such application shall be summarily rejected duly forfeiting the entire penal amount and necessary action shall be taken against the unauthorized building including demolition as per the law."

The additional reason why the request for refund was rejected by

respondent No.2 was that the applications filed under the Building

Penalization Scheme had been filed by the owners of the property namely

Sri.J.Govinda Rao, J. Venkateswara Rao & V. Srinivasa Rao and therefore,

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the appellant M/s Raja Rajeswari Builders had no right or title to claim refund

of an amount, which was paid by the three applicants.

5. The said order, dated 31.12.2020, was challenged by the appellant

herein before the learned single Judge, who by virtue of judgment and order

impugned dismissed the same holding firstly that disputed questions of fact

were involved in the petition with regard to who actually paid the money at the

time of submission of the application forms for regularization of the deviations

in regard to the construction raised. Apart from this, learned single Judge also

held that the petition was barred by laches inasmuch as even when the

amount of Rs.3,65,025/- had been deposited by the appellant in the year

2007, the writ petition had been filed only as late as in 2023. No claim was

made for the refund of the said amount from 2010 till March, 2017.

6. Learned counsel for the appellant would urge that the view expressed

by the learned single Judge with regard to the petition involving disputed

questions of fact was unsustainable inasmuch as it was stated that the money

in fact had been paid by the appellant which was his obligation in terms of the

Development Agreement, dated 11.03.2007, which required the Developer to

obtain all the requisite permissions. The translated version of the said

Development Agreement and in particular clause 3, which has been placed on

record, reads as under:

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"3. First party has to pay the taxes and second party has to borne the approval and construction expenditure."

7. It is stated that the payments towards building penalization charges had

been debited from the account of the appellant. Development Agreement,

dated 09.08.2011, according to the petitioner, envisages that the Developer

would obtain the necessary permissions from the competent authority at his

cost in regard to the building in question, which reads as under:

"..The Developer shall prepare architectural design, drawings, structural design calculations and the specification of structural materials from reputed and competent firm of architect and structural designer and obtain the necessary permission from all the competent authority at his cost for the building envisaged herein above. "

On a reading of the aforementioned clause in the Development

Agreement, while it is true that the requisite permissions had to be obtained

from the competent authority at the cost of the appellant, yet this by itself

would not suggest that the applications which were filed in the name of the

owners would necessarily be accompanied by payment made by the

Developer in terms of the Development Agreement.

8. Although during the course of the pendency of the present writ appeal,

owners of the property, which was the subject matter of the Development

Agreement, were issued notices, yet none caused appearance in the present

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proceedings. Assuming that the payment of Rs.3,65,025/- was in fact made by

the appellant, yet the appellant has not been able to satisfy us on the ground

of delay and laches.

9. Admittedly, the BPS application along with requisite payment for

regularization was made in the year 2007, which application came to be

rejected in 2010, and the request for refund of the money had come only in

the year 2018, which request came to be rejected in the year 2020. No

murmur was made in the interregnum for a period as long as eight years. Not

only this, even after the rejection of the request in the year 2020, the appellant

kept quiet and filed the writ petition only in the year 2023. There was, thus,

gross delay in filing the writ petition by the petitioner/appellant herein.

10. On the issue of delay, it is no longer res integra that the period generally

prescribed for filing a civil suit before a civil Court of competent jurisdiction

would generally be the period during which a petitioner must approach the

Court for invoking the extraordinary jurisdiction under Article 226 of the

Constitution of India. This principle was laid down by a constitution Bench of

the Apex Court in State of M.P. v. Bhailal Bhai1 wherein it was held:

"17. At the same time we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to

(1964) 6 SCR 261 = AIR 1964 SC 1006

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supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. .... .It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.

...

21. ...It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may

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consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. ..."

11. Testing the facts of the present case on the touchstone of the ratio of

the aforesaid judgment, we have no hesitation in holding that the petition

which was filed by the petitioner was barred by delay and laches and was

rightly dismissed, among others, on that ground. We find no merit in the

present appeal, which is accordingly dismissed. No costs.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR, CJ

RAVI CHEEMALAPATI, J

akn

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HON'BLE MR.JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE RAVI CHEEMALAPATI

DATE : .10.2024

AKN