Dismissed

Potnuru Arun Kumar v. the State of Andhra Pradesh

Andhra Pradesh HC1 Sept 2021WA/478/2021

Case brief

AI extract

What is this about?

In a writ appeal, the High Court of Andhra Pradesh dismissed the appeal challenging the confirmation order under the Hyderabad Municipal Corporation Act for unauthorized construction. The court held that the authorities acted according to law after giving the appellant an opportunity to show cause which he failed to avail. Verifying that set back deviations exceeded compoundable limits, the court

What did the court decide?

Writ appeal dismissed; confirmation order to demolish unauthorized structures upheld.

Potnuru Arun Kumar Vs the State of Andhra Pradesh — Landlord and Tenant | Andhra Pradesh HC (2021)

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

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HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE

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HON’BLE MR. JUSTICE NINALA JAYASURYA

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WRIT APPEAL No.478 of 2021

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(Through video conferencing)

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Potnuru Arun Kumar, S/o Bhimarao, Aged 34 years, Occ: Private Employee, R/o D.No.220/3/2-1, Suryanagar, Kottapalem, Gopalapatnam, Visakhapatnam.

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… Appellant Versus

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State of Andhra Pradesh rep., by its Principal Secretary, Municipal Administration, Secretariat, Amaravati, Velagapudi, Guntur District and others.

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…Respondents

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Counsel for the Appellant : Mr. V.V. Satish

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Counsel for respondent No.1 : GP for Municipal Administration & Urban Development.

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Counsel for respondent Nos.2 to 4 : Mr. S. Lakshminarayana Reddy Standing Counsel.

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JUDGMENT (ORAL)

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Dt:01.09.2021

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(per Arup Kumar Goswami, CJ)

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Heard Mr. V.V. Satish, learned counsel for the appellant. Also heard Mr. A. Jagannadha Rao, learned Government Pleader for Municipal Administration & Urban Development appearing for respondent No.1 and Mr. S. Lakshminarayana Reddy, learned standing counsel appearing for respondent Nos.2 to 4.

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HCJ & NJS,J W.A.No.478 of 2021

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This writ appeal is directed against the order dated 29.04.2021 passed by the learned single Judge dismissing W.P.No.9255 of 2021.

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As can be seen from the materials on record, a notice under Section 452(1) & 461(1) of Hyderabad Municipal Corporation Act, 1955 (for short, ‘the HMC Act’), dated 18.03.2021 was issued to the appellant by the Town Planning Supervisor, Zone-VI, GVMC, stating that he had constructed Stilt+G+2 in deviation with online sanctioned plan vide BA No.1086/0596/B/Z5/PDA/2020, date: 09.03.2020 in Plot No.MIG-IIB-76, VUDA colony, Pedagantyada in Ward No.73, contrary to the provisions of HMC Act and Bye Laws made thereunder. The details of the unauthorised constructions indicated therein read as follows:

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S.No.	Detail	As per Approved B.A.No.1086/ 0596/B/Z5/ PDA/2020	As per construction carried on ground	Deviations
1	Front Set back	1.50 m	0.00 m	1.50 m
2	Rear Set back	1.00 m	1.30 m	-
3	Side open space (1)	1.00 m	1.30 m	-
4	Side open space (2)	1.00 m	0.30 m	0.70 m
5	No. of Floors	STILT+G+2	STILT+G+2	-
6	Usage	RESIDENTIAL	RESIDENTIAL	-

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By the aforesaid notice, the appellant was asked to show cause in 7 days by a statement in writing or by an agent duly authorized in his behalf as to why the above unauthorized constructions shall not be removed, altered or pull down under Section 452 of HMC Act.

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The notice dated 18.03.2021 was served on the writ appellant on

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18.03.2021 itself and there is no dispute with regard to service of notice.

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HCJ & NJS,J W.A.No.478 of 2021

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The appellant did not give any reply or explanation to the said show cause notice dated 18.03.2021.

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Subsequently, a notice under Section 636 of HMC Act, 1955 dated 22.04.2021 was issued by the Zonal Commissioner, Zone-VI, GVMC, stating that the appellant had constructed Stilt+G+2 in deviation with online sanctioned plan vide BA No.1086/0596/B/Z5/PDA/2020, date: 09.03.2020 and that the deviations regarding set backs and construction of lift without approval, at Plot No: MIG-IIB-76, VUDA Colony, Pedagantyada in Ward No.73, are contrary to the provisions of HMC Act and bye-laws made thereunder. The details of the unauthorized constructions indicated therein read as under:

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S.No.	Detail	As per Approved B.A.No.1086/ 0596/B/Z5/ PDA/2020	As per construction carried on ground	Deviations
1	Front Set back	1.50 m	0.00 m	1.50 m
2	Rear Set back	1.00 m	0.35 m	0.65 m
3	Side open space (1)	1.00 m	0.25 m	0.75 m
4	Side open space (2)	1.00 m	0.15 m	0.85 m
5	No. of Floors	STILT+G+2	STILT+G+2	-
6	Usage	RESIDENTIAL	RESIDENTIAL	-

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By the aforesaid notice, the appellant was directed to stop the work forthwith and to appear before the Zonal Commissioner and submit reply within 24 hours from the date of receipt of the notice to show cause as to why the deviated portion of construction made unauthorizedly in the site mentioned above should not be removed, altered or pulled down, and expenses thereof will not be recovered from the appellant or further action will not be taken as per section 596/section 461(4)/section 461-A of

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HCJ & NJS,J W.A.No.478 of 2021

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HMC Act. It was stated in the notice that the appellant neither pulled down the deviated portions nor submitted any reply to the show cause notice till date and therefore, the confirmation order is liable to be issued under Section 636 of HMC Act, 1955.

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The learned single Judge rejected the contention advanced on behalf of the appellant that he was in home quarantine due to Covid situation, as there was no material placed on record in support of the said contention. It was also observed in the order under appeal that even if the appellant was really suffering from such ailment, nothing prevented him from seeking time to submit his explanation.

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The learned Single Judge, while dismissing the writ petition, had observed as follows:

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“Mandamus in a writ petition can be issued only

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when the authorities did not act according to law or when they violated principles of natural justice or when there are any mala fides on their part etc. in initiating the impugned proceedings. No such legal grounds are existing in this case. In fact, as discussed supra, the respondents have acted strictly according to law by following the due process of law and by giving ample opportunity to the petitioner to submit his explanation. The petitioner utterly failed to avail the said opportunity. So, the present writ for mandamus to direct the respondents not to demolish the structures is not maintainable.

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Even otherwise, in view of the above discussion,

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as the petitioner has admittedly deviated from the

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HCJ & NJS,J W.A.No.478 of 2021

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sanctioned plan and constructed the house without leaving the setbacks and as the petitioner did not even respond to the show cause notice and did not submit any explanation, this Court does not find any valid legal ground warranting its interference.”

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During the course of hearing, Mr. V.V. Satish, learned counsel for the appellant, submits that the appellant had suffered from Covid in the month of January, 2021. No material in this regard is placed in this appeal. But then the notice was served much later i.e., on 18.03.2021. It is also not the case of the appellant that he was still suffering from Covid-19.

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Mr. V.V. Satish has drawn our attention to the order of this Court dated 06.08.2021, wherein it was indicated that Mr. S. Lakshminarayana Reddy had submitted that by demolishing only extended portions without disturbing the building, requisite set backs can be obtained.

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However, subsequently, Mr. Reddy filed an affidavit stating that insofar as front set back violation is concerned, the respondentcorporation has partially removed 0.65 meters out of total set back violation of 1.50 meters and the remaining 0.85 meters of set back violation cannot be removed without demolition as the appellant had constructed staircase on the right side set back and erected lift on the left side set back and also erected the pillars beyond the set backs. At paragraphs 5 and 6 of the affidavit, it is stated as follows:

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“5. It is respectfully submitted that as stated above,

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the writ appellant has constructed the building deviating the set backs contrary to the sanctioned plan. It is submitted that however the sanctioning authority is empowered to

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HCJ & NJS,J W.A.No.478 of 2021

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compound the offence in relation to set back violations (other than the front set back) in respect of non-high rise building only upto 10% under sub rule (g) of Rule 33 of A.P. Building Rules 2017 as framed under G.O.Ms.No.119, dated 28.03.2017 which reads as follows:

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The Sanctioning Authority is empowered to compound the offence in relation to setbacks violations (other than the front setback) in respect of non-high rise buildings only upto 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 be considered for buildings constructed without obtaining any sanctioned plan.

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It is submitted that by reading of the above rule set backs violations can be compoundable only upto 10% but in the instant case all round set backs violations are more than 10% and as such it cannot be compoundable. It is submitted that the copy of drawing sketch of set backs violations and the photographs are herewith filed which are evident to show that the set backs violations and the pillars were extended beyond the set backs portion as the stair

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HCJ & NJS,J W.A.No.478 of 2021

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case and lift were erected in the front set back violations for

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kind perusal of this Hon’ble Court.”

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Material on record discloses that the appellant had not kept any set back in the front though required to keep set back of 1.50 meters. Further, deviations in respect of set back in the other sides are also more than permissible compoundable limit of 10% as per extant Rules.

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In view of the above, we see no good ground to interfere with the order of the learned single Judge.

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Accordingly, the Writ Appeal is dismissed. No costs. Pending miscellaneous applications, if any, shall stand closed.

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ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J

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Potnuru Arun Kumar v. the State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Potnuru Arun Kumar v. the State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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