Ladella Ravinder vs The Greater Warangal Municipal ...
2022 Latest Caselaw 4323 Tel

      THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                  AND
       THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


         WRIT APPEAL Nos.546 and 549 of 2022

COMMON JUDGMENT:          (Per the Hon'ble the Chief Justice Ujjal Bhuyan)



      Heard Mr. P.Gangaiah Naidu, learned Senior Counsel

appearing for the appellant; Ms. Pingali Lakshmi, learned

Standing    Counsel       for     Greater          Warangal            Municipal

Corporation appearing for respondents No.1 to 3; and

Mr. Mohd. Islamuddin Ansari, learned counsel for

respondent No.4.

2. The present intra-court appeals are directed against

the common order dated 15.07.2022 passed by the learned

Single Judge disposing of W.P.No.22457 of 2019 filed by

respondent No.4 and dismissing W.P.No.24476 of 2019

filed by the appellant.

3. Appellant had filed W.P.No.24476 of 2019 to quash

the notice dated 04.11.2019 issued by respondent No.1

under Section 636 of the Greater Hyderabad Municipal

Corporation Act, 1955, as made applicable to Greater

Warangal Municipal Corporation. By the aforesaid notice

dated 04.11.2019 appellant was directed to remove the

deviated portion of construction made by him beyond the

sanctioned plan within 24 hours failing which it was

notified that those would be removed by respondent No.1

whereafter expenses incurred for such removal would be

recovered from the appellant. This writ petition was heard

along with two other writ petitions being W.P.Nos.6513 of

2021 and W.P.No.22457 of 2019 filed by respondent No.4.

4. Both appellant and respondent No.4 are neighbours

and as per the complaint of respondent No.4 which led to

the previous round of litigation, impugned notice came to

be issued.

5. Writ petitions were contested by respondents No.1

to 3 by filing counter affidavit wherein it was pointed out

that appellant has raised construction without maintaining

the setbacks, particulars of which were placed before the

Court as under:

Description          As per Building       As per sanctioned   As maintained on   deviations
                     rules          vide   plan                the ground
                     G.O.Ms.No.168
                     MA, dt. 07.04.2012

All round setbacks


a) Front             1.50                  2.36                0.00               2.36


                     1.00                  1.10                0.00               1.10
b)Rear



c)Side (1)         1.00             1.10             0.00          1.10


d) Side (2)        1.00             1.10             1.50          -




5.1. It          was      contended          that    appellant    had       made

construction deviating from the sanctioned plan without

maintaining setbacks.

6. Learned Single Judge by the common order dated

15.07.2022 dismissed W.P.No.24476 of 2019 filed by the

appellant as being devoid of any merit.

7. In the hearing today, learned Senior Counsel for the

appellant submits that as per the Andhra Pradesh Building

Rules, 2012 (briefly, "the Rules" hereinafter) now applicable

to the State of Telangana which was issued vide

G.O.Ms.No.168, dated 07.04.2012, there is a provision for

compounding of any setback violation in respect of non

high rise buildings up to 10%. He submits that as per

Rule 26(d) of the Rules, such power is available to the

sanctioning authority.

8. Learned counsel for respondent No.4 however

submits that this issue was neither pleaded nor argued by

the appellant before the learned Single Judge.

9. Submissions made have been considered. Also

perused the materials on record.

10. Rule 26(d) of the Rules reads as under:

"(d) The Sanctioning Authority is empowered to compound the offence in relation to setbacks violation (other than the front setback) in respect of non high rise buildings only up to 10%, duly recording thereon the violations in writing. The rate of Compounding fee shall be equivalent to one hundred percent of the value of the land as fixed by the Registration Department at the time of compounding for the violated portion and the Government may revise this rate from time to time. Compounding of such violation shall not be considered for buildings constructed without obtaining any sanctioned plan."

10.1. From the above we find that the sanctioning

authority is empowered to compound an offence in relation

to setback violation (other than the front setback) in

respect of non high rise buildings up to 10% after recording

reasons in writing. While compounding, certain fees are

also to be levied as laid down by the Registration

Department of Government of Telangana. However, it is

clarified that compounding of such violation would not be

considered for buildings constructed without obtaining any

sanctioned plan.

11. Allegation is that appellant had deviated from the

sanctioned plan in respect of setbacks. The quantum of

deviation has been recorded in the order of the learned

Single Judge which we have extracted above, which is

below 10% as per affidavit of respondent Nos.1, 2 and 3.

12. It is true that this aspect was not urged by the

appellant before the learned Single Judge, as a result of

which no finding could be returned by the learned Single

Judge. Nonetheless, we are of the view that having regard

to the consequences which the appellant would face in view

of dismissal of the writ petition filed by him assailing the

notice dated 04.11.2019, we have entertained the appeals

and examined the above point urged by learned Senior

Counsel appearing for the appellant since the same strikes

at the very root of the dispute.

13. Thus, in the facts and circumstances of the case we

are of the view that Commissioner of Greater Warangal

Municipal Corporation should examine this aspect of the

matter and thereafter pass an appropriate order in

accordance with law.

14. Accordingly and in the light of the above, we modify

the order of the learned Single Judge dated 15.07.2022 by

directing respondent No.1 to consider as to whether the

deviation made by the appellant is compoundable under

Rule 26(d) of the Rules and thereafter to pass an

appropriate order in accordance with law. Let the said

exercise be completed within a period of six weeks from the

date of receipt of a copy of this order.

15. Writ appeals are accordingly disposed of.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ C.V.BHASKAR REDDY, J 26.08.2022 vs