M/S. Vaishnavi Constructions, vs The State Of Telangana,
2021 Latest Caselaw 2952 Tel

               HON'BLE SRI JUSTICE K. LAKSHMAN

        WRIT PETITION Nos. 11587 OF 2015 AND 1048 OF 2021

COMMON ORDER:

W.P.No.11587 OF 2015

        This Writ Petition is filed by the Builder and Owner to declare the

Confirmation Order (Notice), issued under Section 228(3) and 217 of the

A.P. Municipalities Act, 1965 (for short, 'the Act') by the Respondents in

Proceeding No.C.O.No.32/TPBO/TPS/A2/2012, dated 21.02.2015 as

illegal and to set aside the same.

W.P.No.1048 OF 2021

This Writ Petition is filed by one of the Shop Owners of M/s.

Vaishnavi Constructions (for short, 'the subject complex') to declare the

action of the 2nd Respondent in not taking any steps on the representation

dated 05.01.2021 submitted by him complaining that the Respondent

Nos.3 to 6 were constructing a compound wall illegally opposite to his

shop.

2. Heard Sri D.Bhaskar Reddy, learned Counsel for the Petitioner

and Sri N.Praveen Kumar, learned Standing Counsel appearing for the

Respondent Nos.2 and 3 in W.P.No.11587 of 2015; Sri M.Atish, learned

Counsel for the Petitioner, Sri N.Praveen Kumar, learned Standing

Counsel appearing for 2nd Respondent and Sri V.Raghunath, learned

Counsel appearing for unofficial Respondent Nos.3 to 6 in W.P.No.1048

of 2021 and perused the record.

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

3. FACTS OF THE CASE

i) The subject complex, and Sri G.Ashwin Reddy, the Petitioners in

W.P.No.11587 of 2015 have applied to grant permission for construction

of stilt, ground+ 4 upper floors residential apartment in Sy.No.412,

situated at Mahalaxmi Colony, Armoor, Nizamabad District before the 2nd

Respondent, who in turn, sent the proposal to the Director, Town and

Country Planning, Hyderabad (for short, 'The DTCP').

ii) The DTCP, Hyderabad, had accorded technical approval vide its

letter Dis.No.10140/2010/H, dated 27.12.2010 and accordingly the 2nd

Respondent had released the sanctioned plan vide proceedings

No.A2/39/2010, dated 03.02.2011 on certain conditions.

iii) According to the petitioners, they have constructed a building

strictly in accordance with the sanctioned plan without any deviation or

contrary to the procedure laid down under the Rules and Regulations.

iv) They have completed the construction and handed over the

possession to the prospective purchasers who have occupied their flats and

residing in the subject complex.

v) The 2nd Respondent had issued a notice, dated 18.09.2014 stating

that the Petitioners have constructed the shops in stilt portion

unauthorizedly meant for vehicular parking in the apartment against the

sanctioned plan and thus directed them to remove the shops within ten

days from the date of receipt of the said notice.

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

vi) The 2nd Respondent again issued Confirmation Orders (Notice)

under Section 228(3) and 217 of the Act, dated 21.02.2015, by registered

post which was received by the Petitioners on 23.03.2015. In the said

notice, the 2nd Respondent has referred earlier notice dated 18.09.2014 as

provisional order to it which are contrary to the procedure laid down under

Section 228 of the Act. The 2nd Respondent without issuing any

provisional notice under Section 228(1) and (2) of the Act straightaway

issued notice under Section 228(3) of the Act which is in violation of

Section 228 of the Act and also in violation of the principles of natural

justice.

vii) With the said submissions, the Petitioners sought to set aside

the impugned proceedings, dated 21.02.2015.

4. CONTENTIONS OF THE RESPONDENT NOs.2 AND 3.

i) The Petitioners have applied for building permission for

construction of residential apartment of stilt which is only meant for

parking, ground + 4 upper floors in Sy.No.412 situated at Mahalaxmi

Colony, Armoor, Nizamabad District.

ii) The DTCP had issued technical approval for the said proposals

on certain conditions and permit vide proceedings dated 27.12.2010 for

which the Petitioners have given an undertaking through notarized

affidavit stating that stilt floor is provided for parking vehicles and it

should not be converted or misused for any other purpose other than the

parking of vehicles.

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

iii) The petitioners have gifted an area of 7ft. x 175 ft. = 136.11

sq.yards for the purpose of road widening from existing 32ft. to 40ft. road

at northern side while approving of building plan by the DTCP, in favour

of the 2nd Respondent for public charitable purpose, vide proceedings

No.238/2011, dated 21.01.2011 but it is not left and constructed

compound wall without leaving the land as per document executed by the

Petitioners.

iv) The Petitioners have constructed shops at eastern side of the

apartment in stilt area for which the flat owners of the subject complex

have given an objection petition to the Chairperson and Commissioner

Municipal Council, Armoor on 20.01.2015 and on 20.04.2003 to the

District Collector, Nizamabad during the Prajavani programme.

iii) The Petitioners have mortgaged 10% of built-up area i.e. five

flats of 402.50sq.meters in the 2nd floor for which they have submitted

notarized affidavit on 28.01.2010 while getting building permission plans

from the 2nd Respondent. They have sold away the said flats against the

sanctioned plan and conditions.

iv) The Petitioners have constructed the residential apartment with

maximum deviations against the sanctioned plan besides they have

constructed the shops illegally in the stilt floor meant for exclusively

vehicular parking as per the plan.

v) On the complaint given by the flat owners, the 2nd Respondent

had issued provisional notice dated 18.09.2014 instructing the Petitioners

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

to remove the shops which are constructed illegally in the stilt floor which

is meant for parking. The petitioners have not removed the said shops.

Therefore, the Conformation Order, dated 21.02.2015 was issued to the

petitioners. Therefore, there is no irregularity or illegality in issuing the

same.

vi) The petitioners have not received said notice. Therefore, the 2nd

Respondent had affixed said notice on the shop shutters constructed

illegally stating that the shops constructed in parking space as such not to

buy or sell the shops by any one.

vii) With the said contentions, the RespondentNos.2 and 3 sought

to vacate the stay order dated 21.04.2015 passed in W.P.No.11587 of 2015

and also to dismiss the Writ Petition.

5. FACTS OF THE CASE IN W.P.No.1048 OF 2021

i) The Petitioner is one of the shop owners of the Vaishnavi

Towers.

ii) He has purchased the Shop No.1 on stilt floor of Vaishnavi

Towers admeasuring 216 sq.feets, including share in common areas,

parking common facilities, corridor, balcony, common stair case, stilt etc.,

with an undivided share of land i.e. 35sq.yards under a registered sale

deed doc.No.4797 of 2013, dated 11.12.2013.

iii) Before purchase, he had made enquires with all the flat owners

and on assurance by them, he had purchased the subject Shop by paying

sale consideration to the Vaishnavi Towers.

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

iv) On 05.01.2021, Respondent Nos.3 to 6 along with other flat

owners of Vaishnavi Towers came to his shop and dumped construction

material in front of his shop, when questioned, they replied that they are

constructing a compound wall opposite to his shop. He has requested them

not to construct a compound wall and tried to stop the same. Therefore, he

along with other shop owners approached the 2nd Respondent by way of

submitting a representation on 05.01.2021.

v) Despite receiving and acknowledging the said representation, the

2nd Respondent did not act upon it.

vi) The Respondent Nos.3 to 6 along with other flat owners of

Vaishnavi Towers constructed compound wall on 08.01.2021 illegally

without permission from the concerned Municipal authorities to occupy

the shutter illegally and highhandedly. Therefore, he has filed the present

Writ Petition.

CONTENTIONS OF THE 2ND RESPONDENT

6. The 2nd respondent has filed counter almost in the very same

lines of the counter filed in W.P.No.11587 of 2015.

7. CONTENTIONS OF THE RESPNODENT NOs. 3 TO 6

i) The Builder has constructed a shop in deviation of the sanctioned

plan approved by the DTCP and also contrary to the undertaking given by

him.

ii) The Petitioner has approached subject complex with an intention

to purchase and is aware that stilt area is meant for parking. No owner of

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

the apartment has given permission for construction of the alleged shop.

The petitioner is very well aware of the said fact.

iii) The construction of compound wall has already taken place and

now the Petitioner claims that construction material is being dumped in

front of his shop without any substantial material which is virtually

incorrect.

iv) The Petitioner, having purchased the shop which was

constructed in violation of the approved plan, cannot claim any equity or

right.

v) With the said submissions, the Respondent Nos.3 to 6 sought to

dismiss the present Writ Petition.

CONSIDERATION OF THE COURT

8. In view of the specific contentions raised by the Builders in

W.P.No.11587 of 2015 that the impugned proceedings, dated 21.02.2015

is contrary to the procedure laid down under Section 228 of the Act, it is

apt to refer Section 228 of the Act, the same is extracted below:-

"Section 228: Demolition or alteration of building work unlawfully commenced, carried on or completed.

(1) If the Commissioner is satisfied--

(i) that the construction or reconstruction of any building or well--

(a) has been commenced without obtaining the permission of the Commissioner or the Chairperson as the case may be, or where an appeal has been made to the council, in contravention of any order passed by the council; or

(b) is being carried on, or has been completed, otherwise than in accordance with the plans or particualrs on which such permission or order was based; or

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

(c) is being carried on, or has been completed, in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye laws; or

(ii) that any alterations required by any notice issued under Section 217 have not been duly made; or

(iii) that any alteration of or addition to any building or any other work made or done for any purpose into or upon, any building, has been commenced or is being carried on or has been completed in breach of Section 227.

he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as in the opinion of the said officer, has been unlawfully executed or to make such alterations as may, in his opinion, be necessary to bring the work into conformity with the Act, bye- laws, rules direction or requisition as aforesaid, or with the plans and particulars on which such permission or order was based; and may also direct that until the said order is complied with, the owner or builder shall refrain from proceeding with the building or well.

(2) The said officer shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well, together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.

(3) If the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as he thinks fit to make, and such order shall then be binding on the owner."

9. Thus, Section 228(1) of the Act mandates the Commissioner to

make a provisional order, Section 228(2) of the Act, mandates the said

Commissioner to serve a copy of the provisional order made under Sub

Section 1 of Section 228 of the Act, on the owner of the building together

with a notice requiring him to show cause within a reasonable time to be

named in such notice why the order should not be confirmed. Thereafter,

the Commissioner has to pass a Confirmation Order as per Section 228(3)

of the Act.

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

10. In G.V.Narasimha Reddy Vs. Commissioner, Nirmal

Municipality, Adilabad District1, the then High Court of Andhra

Pradesh, had an occasion to deal with the powers of the Commissioner

under Section 228 of the Act, and held that the order on the ground of

construction made without permission, in deviation of plan and same

being not in accordance with law, no material to show that there was

actual service of provisional order on petitioners, impugned order was not

in accordance with law. Therefore, exercise of discretion by the

Commissioner of Municipality in taking decision to order demolition and

such discretion has to be exercised on just and reasonable grounds and not

in arbitrary and capricious manner. In the said judgment, paragraph

Nos.19 and 20 are important and they are reproduced herein:-

19. The words, "he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as in the opinion of the said officer, has been unlawfully executed or to make such alterations as may, in his opinion, be necessary to bring the work into conformity with the Act, Bye-laws, Rules, Direction or Requisition as aforesaid, or with the plans and particulars on which such permission or order was based; and may also direct that until the said order is complied with, the owner or builder shall refrain from proceeding with the building or well" are noteworthy.

20. The words "the said officer shall serve a copy of the provisional order made under Sub-section (1) on the owner of the building or well" and also the words "notice requiring him to show cause within a reasonable time to be named in such notice" and the words "if the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as he thinks fit" in Sub-sections (2) and (3) assume lot of importance while dealing with the powers of the Commissioner and the mode and the method of the exercise of the said powers and the discretion to be exercised in relation thereto and under what circumstances while exercising such powers under Section 228 of the Act.

It was further held that the Commissioner of the Municipalities, has to

exercise discretion in taking a decision in relation to order demolition. The

(2005) 2 ALD 363,

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

said exercise is not arbitrary or capricious but on just and reasonable

grounds.

11. There is no dispute that the DTCP has granted permission to the

Petitioners for construction of stilt, ground + 4 upper floors. Approval was

granted by the 2nd Respondent-Municipality vide proceedings dated

03.02.2011. The 2nd Respondent has issued notice, dated 18.09.2014 to the

Petitioners herein stating that they have constructed shops unauthorizedly

in the stilt floor exclusively meant for vehicle parking to the flat owners of

Vaishnavi Residential Apartment. The said unauthorized shops were

constructed in the said Apartment as against the sanctioned plan due to

which the flat owners have faced lot of inconvenience for parking their

vehicles. Therefore, the 2nd Respondent has directed the Petitioners to

remove all shops constructed unauthorizedly in stilt floor meant for

parking exclusively, within ten days from the date of receipt of the notice,

failing which the same will be removed through department and recover

removal charges as incurred.

12.Vide Notice dated 21.02.2015, the 2nd Respondent has informed

to the Petitioners in W.P.No.11587 of 2015 that the notice dated

18.09.2014 issued to the Petitioners to show cause why an order for

removal of the shops cannot be passed and the same was duly served on

the petitioners on 18.03.2015, and the petitioners failed to submit

explanation. Therefore, the 2nd Respondent has issued the said

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

Confirmation Orders/notice stating that the 2nd Respondent is making order

directing the petitioners to remove by demolition or otherwise

unauthorized construction (Development) within three days from the date

of service of the Confirmation Order. Thus, the 2nd Respondent has not

made any provisional order as mandated under Section 228(1) of the Act.

The 2nd Respondent has not served any provisional order along with the

show cause notice requesting the Petitioners to submit explanation. The

said notice, dated 18.09.2014 cannot be treated as provisional order under

Section 228(1) of the Act, and it is not accompanied by a show cause

notice.

13. In the counter filed by the 2nd Respondent, there is no mention

about the compliance of Section 228(1) and (2) of the Act. Therefore, the

2nd Respondent now cannot contend that the said notice dated 18.09.2014

is a provisional order under Section 228(1) and subsequent Confirmation

Order dated 21.02.2015 is in accordance with Section 228(3) of the Act.

Thus, According to this Court, the 2nd respondent has not complied with

the procedure as mandatory provisions specified under Section 228(1) and

(2) of the Act by way of making provisional order and serving a copy of

the same along with show cause notice on the petitioners. Even, the

Confirmation Order dated 21.02.2015 is silent with regard to making of

provisional order as mandated under Section 228(1) of the Act and service

of show cause notice under Section 228(2) of the Act. Therefore, the 2nd

Respondent had issued Confirmation Order dated 21.02.2015 without

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

complying with Section 228(1) and (2) of the Act and the same is violation

of the procedure laid down under the Act.

14. The Petitioner in W.P.No.1048 of 2021, admittedly purchased a

shop which was constructed by the Builder in violation of the sanctioned

plan. The petitioner has not made enquiries including verification of

documents, approval by DTCP released orders issued by the 2nd respondent

Municipal Council. Without conducting due diligence and without

verifying the documents properly, the Petitioner had purchased the shop

No.1. He has made representation to the 2nd Respondent on 05.12.2021

complaining that the Respondent Nos.3 to 6, owners of the flats of the said

complex have been making construction of compound wall illegally.

Therefore, he has requested the 2nd respondent to take action in accordance

with law.

15. In the counter filed by the Respondent Nos.3 to 6, it is

categorically mentioned that they have already completed construction of

compound wall. There is no mention about the permission granted for

construction of compound wall by the DTCP or the 2nd Respondent

Municipal Council in the counter filed by the 2nd Respondent and also

counter filed by the Respondent Nos.3 to 6. None of them have filed a

copy of the approval granted by the DTCP to show that whether

permission was granted for construction of compound wall. On perusal of

the release of approvals issued by the Municipal Council, Armoor, dated

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

03.02.2011 would reveal that it is for construction of stilt, ground + 4

upper floors. Therefore, it is for the 2nd Respondent i.e. Municipal Council,

Armoor, Nizamabad District which is to consider the said facts and also

take action in accordance with law. However, the petitioner herein, having

purchased the shop which is an unauthorized construction, cannot claim

any right or equity. The photographs filed by the petitioner would reveal

that the construction of compound wall is already over.

CONCLUSION:

16. In view of the above discussion, this Court is of the considered

view that the notice, dated 18.09.2014 and the impugned Confirmation

Order dated 21.02.2015 are in violation of procedure laid down under

Section 228 of the Act and that the same are liable to be set aside and the

representation dated 05.01.2021 submitted by the Petitioner in

W.P.No.1048 of 2021 is to be considered by the respondent No.2.

17. In the result, both these Writ Petitions are disposed of as follows:-

i) The notice, dated 18.09.2014 and the impugned Confirmation Order dated 21.02.2015 in W.P.No.11587 of 2015 are set aside.

ii) The 2nd Respondent is directed to consider the representation dated 05.01.2021 submitted by the Petitioner in W.P.No.1048 of 2021 and take action in accordance with law by putting the petitioners and unofficial respondents in both the Writ Petitions on notice and by affording an opportunity of hearing.

KL,J W.P.No.11587 of 2015 and W.P.No.1048 of 2021

iii) Liberty is granted to the Respondent Nos.2 and 3 in W.P.No.11587 of 2015 and Respondent No.2 in W.P.No.1048 of 2021 to initiate fresh proceedings and take steps, strictly in accordance with law.

iv) The interim orders dated 21.04.2015 in W.P.No.11587 of 2015 and dated 08.02.2021 in W.P.No.1048 of 2021 shall stand vacated.

18. As a sequel, the miscellaneous petitions, if any, pending in these writ petitions shall stand closed.

_________________ K. LAKSHMAN, J Date:25.10.2021 Vvr