Pabbabalachandram And 4 Others vs Solipuram Mallareddy And 2 Others
2023 Latest Caselaw 555 Tel

         THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                       AND
              THE HON'BLE SRI JUSTICE N. TUKARAMJI


                   WRIT APPEAL No.150 of 2023



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


        Heard Mr. A.Ravinder Reddy, learned Senior Counsel

for the appellants; Mr. R.S.Sravan Kumar, learned counsel

for respondents No.1 to 3/writ petitioners; Mr. Nazir

Ahmed Khan, learned Government Pleader for Panchayat

Raj Department representing respondents No.4 to 7;

Mr. Kishore Rao Puskuru, learned counsel for respondent

No.8; and Ms.Sudha, learned counsel representing

Mr. V.Narasimha Goud, learned counsel for respondent

No.9.

2. This appeal is directed against the order dated

09.01.2023 passed by the learned Single Judge disposing

of W.P.No.650 of 2023 filed by respondents No.1 to 3 as the

writ petitioners.

3. Order dated 09.01.2023 reads as under:

This Writ Petition is filed seeking a writ of mandamus declaring the inaction of the respondents No.2 to 6 in stopping the unauthorized construction activity undertaken by the respondents No.7 to 11 in deviation of the sanction plan and to pass such other order or orders.

2. Learned counsel for the petitioners submitted that the respondent No.7 to 11 have started construction in deviation of the construction plan. The officer of the 4th respondent has inspected the site and has given a report dated 12.12.2022 pointing out various deviations in the construction. It is submitted that the respondents No.2 to 6 have not taken any action thereon.

3. Learned Standing Counsel appearing for the respondent No.5 submitted that on receipt of the report dated 12.12.2022 from the 4th respondent, the 5th respondent has already issued a notice dated 02.01.2023 to the unofficial respondents, giving them ten days time to submit their reply. It is submitted that after receipt of the reply, an appropriate decision would be taken by the authorities.

4. Mr.V.Narsimha Goud, learned Standing Counsel appearing for respondent No.6-Authority is also heard.

5. In view of the above submissions and with the consent of all the parties, the Writ Petition is disposed of at the admission stage, directing the 5th respondent to take action in accordance with law after giving notice to all the concerned i.e., including the petitioners and also respondents No.7 to 11. The official respondents are also directed to stop the construction work until a decision is taken on the report of the 4th respondent. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.

4. Learned Senior Counsel for the appellants submits

that without issuing notice to the appellants and without

giving an opportunity to the appellants to contest the writ

proceedings, adverse order has been passed by learned

Single Judge by directing official respondents to stop the

construction being carried out by the appellants.

5. On the other hand, learned counsel for respondents

No.1 to 3/writ petitioners submits that it is evident from

the materials on record that the construction carried out

by the appellants is wholly illegal and beyond the

sanctioned plan. Therefore, learned Single Judge was fully

justified in passing the impugned order.

6. After hearing learned counsel for the parties and on

due consideration, we are of the view that direction of the

learned Single Judge to Panchayat Secretary,

Chowdariguda Gram Panchayat, to take action in

accordance with law after giving notice to all concerned

including respondents No.1 to 3/writ petitioners and the

appellants, cannot be faulted, as the said order sufficiently

protects the interest of all the contesting parties. However,

we find the subsequent direction of the learned Single

Judge to be problematic. Learned Single Judge has

directed the official respondents to stop the construction

work until a decision is taken on the report of the Mandal

Panchayat Officer. In our view, such a direction was

wholly uncalled for and unwarranted.

7. To direct a statutory authority to stop the

construction work would require a finding that the

construction is illegal. No such finding has been recorded.

That apart, it is an elementary principle of natural justice

that the affected party would have to be put on notice and

would have to be given a reasonable opportunity of hearing

before an order adverse to such a party is passed.

Directing stoppage of construction work being carried out

by the appellants is certainly an order adverse to the

appellants. Appellants were required to be heard before

such an order was passed, which was not done in the

instant case.

8. Therefore, the following portion of the direction of the

learned Single Judge is hereby set aside.

The official respondents are also directed to stop the construction work until a decision is taken on the report of the 4th respondent.

9. The rest of the order dated 09.01.2023 stands as it is.

The exercise directed to be carried out by the learned

Single Judge shall be completed within a period of six

weeks from the date of receipt of a copy of this order.

10. Writ appeal is accordingly disposed of.

Miscellaneous applications pending, if any, shall

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

______________________________________ UJJAL BHUYAN, CJ

______________________________________ N. TUKARAMJI, J 02.02.2023 vs