Andhra Pradesh High Court - Amravati
Dr. D. Sudheer vs The State Of A.P. on 3 September, 2024
APHC010370902024
IN THE HIGH COURT OF ANDHRA PRADESH Bench Sr.No:-3
[3483]
AT AMARAVATI
WRIT APPEAL NO: 720 of 2024
Dr. D. Sudheer ...Appellant
Vs.
The State of A. P. and others ...Respondents
**********
Sri N. Pramod, Advocate for the appellant.
Smt S. Pranathi, learned Special Government Pleader for the State appearing
for respondent Nos.1 and 2.
Sri N. Ranga Reddy, Advocate for respondent No.3.
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE RAVI CHEEMALAPATI
DATE : 3rd September 2024
Per DHIRAJ SINGH THAKUR, CJ (Oral):
The present Writ Appeal has been preferred against the judgment and
order dated 06.08.2024 passed in Writ Petition No.17163 of 2024.
2. The genesis of the controversy is the provisional notice dated
30.07.2024 passed purportedly in exercise of power under Sections 217(1) &
(2) and 228 (1) & (2) of the Andhra Pradesh Municipalities Act, 1965 (for short,
"the Act").
3. According to the above mentioned provisional notice, the appellant
herein was directed to remove the structures in the parking area. The
appellant is said to have been utilizing the parking area for purposes of lab,
X-Ray and scanning rooms, which is stated to be contrary to the permissions
granted in favour of the appellant.
4. The aforementioned notice came to be challenged before the learned
single Judge primarily on the ground that although the impugned provisional
notice dated 30.07.2024 also purports to be one under Section 217 of the Act,
yet, the two provisions could not have been simultaneously invoked and that
the first show cause notice ought to have been issued under Section 217 of
the Act and after the appellant was given an opportunity of being heard, only
could the official respondents proceed to pass order under Section 228 of the
Act.
5. It is pertinent to mention here that as per Section 217 of the Act, a show
cause notice is envisaged to be served upon the owner of such premises in a
case inter alia whenever there is a contravention of the provisions of the Act,
bye laws or rules and the provisions framed under the Act.
6. Section 228 of the Act, on the other hand, envisages demolition or
alteration of the building work which has been unlawfully commenced or
completed, as also envisages action in case the alterations, as are required to
be made by a notice issued under Section 217 of the Act, have not been duly
made.
7. By virtue of the judgment and order impugned, the learned single
Judge, while granting liberty to the appellant herein to submit an explanation
to the provisional notice dated 30.07.2024, also gave a direction to the
appellant to abide by the undertaking given by the appellant to remove the lab,
x-ray and scanning equipment, which was installed in the parking area. We
see that there is some contradiction in terms of the judgment and order
impugned inasmuch as if it was a case of giving some time to the appellant to
abide by its undertaking to remove the equipment from the parking area, then,
there was no need for the learned single Judge to give liberty to the appellant
to give the explanation to the provisional notice within the time prescribed.
8. Learned counsel for the appellant would submit that the learned single
Judge misunderstood the statement made by the learned counsel for the
appellant in the judgment and order impugned to that extent and in fact, what
was intended to be communicated to the Court was that time be granted to the
appellant to submit an explanation to the concerned authority and subject to
the final orders which would be passed in the said proceedings, the appellant
would abide by the decision so ordered and remove the equipment from the
parking area.
9. We see some weight in the argument advanced by the learned counsel
for the appellant that principles of natural justice have not fully being complied
with in the present case inasmuch as under Section 217 of the Act, a show
cause notice ought to have been given to the appellant, which admittedly was
not served upon the appellant, and a provisional order under Section 228 of
the Act came to be passed directly.
10. Learned counsel for the respondent Municipality has no objection if the
provisional order passed purportedly under Section 228 of the Act is treated
as a notice issued under Section 217 of the Act and the appellant is granted
an opportunity of submitting an explanation thereto within a period of two (2)
weeks with liberty to the concerned authority to pass a final order in terms of
Section 228 of the Act.
11. Be that as it may, we direct that the provisional order under Section 228
of the Act should be treated as a show cause notice under Section 217 of the
Act and the appellant would submit an explanation to the said provisional
order treating the same to be a show cause notice within a period of two (2)
weeks from today. The concerned authority shall be at liberty to pass an
order within a period of two weeks thereafter. It is made clear that the
authorities concerned shall faithfully and strictly comply with the provisions of
the A.P. Municipalities Act, 1965 as also the rules, regulations and the
bye-laws. No concessions are to be made in case the violation is such which
is neither compoundable nor minor in character. The judgment and order
impugned passed by the learned single Judge stands modified accordingly.
12. Accordingly, the Writ Appeal is disposed of. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ
RAVI CHEEMALAPATI, J
AMD
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE RAVI CHEEMALAPATI
WRIT APPEAL NO: 720 of 2024
Dt : 03.09.2024
AMD
