Dismissed

P David Raju v. State of Andhra Pradesh

Andhra Pradesh HC7 Jan 2021WP/280/2021

Case brief

AI extract

What is this about?

A writ petition was filed seeking a mandamus to compel provision of power supply despite deviation from the sanctioned building plan and lack of occupancy certificate. The court dismissed the petition due to suppression of material facts and non-compliance with legal requirements for occupancy.

What did the court decide?

Petitioners application for electricity connection was denied and the writ petition was dismissed with costs.

P David Raju Vs State of Andhra Pradesh — Service and Employment | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M. GANGA RAO

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Writ Petition No.280 of 2021

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ORDER

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This writ petition is filed to issue a Writ of Mandamus declaring the inaction of the respondents 1 & 2 in providing power supply to the petitioner’s building situated at Door No.2-116, Chinagadili, Indiranagar, Adarshnagar Area, GVMC limits, Visakhapatnam on a letter purportedly addressed by the 5^th respondent to the 1^st respondent vide proceedings in U.C.B.A.No.1086/0211/B/Z1/CLI/2019 dated 18.03.2020 asking him not to provide power supply to the petitioner’s building as illegal, arbitrary and violative of principles of natural justice and contrary to Rule 33(j) of A.P Building Rules, 2017 as also contrary to Articles 14 and 300A of the Constitution of India and consequently direct the respondents 1 and 2 to provide power supply forthwith to the petitioner’s building.

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Heard Sri P. Raj Kumar, learned counsel for the petitioner, Sri Metta Chandrasekhar Rao, learned standing counsel, appearing for the respondents 2 & 3, and Sri S. Lakshminarayana Reddy, learned standing counsel, appearing for the respondents 4 & 5. Perused the material on record.

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The case of the petitioner is that he is the absolute owner and possessor of the property, an extent of 234 Square yards with RCC slab building thereon bearing Door No.2-116 covered by Sy.No.112 P of Chinagadili, Visakhapatnam, having purchased the same from his vendor, under a registered sale deed vide document No.11286 of 2018 dated 01.03.2018, for a valuable consideration. Since then, he has been in continuous possession and enjoyment of the property. In order to develop the property, he applied for building plan by paying Rs.1,18,565/- towards building permission charges. The 4^th respondent vide B.A.No.1086/0211/B/Z1/C1 dated 22.02.2019 approved the building

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permission plan for stilt, Ground + two floors. Pursuant to the sanctioned plan, the petitioner started construction and completed stilt, Ground + two floors. As the petitioner is entitled for construction of one more floor i.e., third floor subject to production of Transferable Development Right Certificate, the petitioner purchased the TDR certificate. But the online system has not accepted the TDR plans as there is no such provision in Andhra Pradesh Development Permission Management System (online). Therefore, the petitioner could not submit the plans through online system. However, in the meantime, the petitioner completed the construction of stilt, ground + three floors with an intention to surrender the TDR certificate for third floor as and when online system receives the same. After construction, the petitioner has been paying the property tax to all the floors including the unauthorized third floor and the 4^th respondent is collecting the same with different assessment numbers. While so, the 4^th respondent issued notice dated 16.03.2020 under Section 636 of the A.P Municipal Corporation Act, 1994, alleging that the petitioner has constructed the building in deviation of the sanctioned plan of stilt + ground + two upper floors and unauthorisedly constructed third floor and directed the petitioner to remove the unauthorizedly constructed third floor within 24 hours from the date of receipt of the notice, failing which the unauthorized construction will be removed departmentally and the expenses incurred will be recovered from the petitioner. While so, when the petitioner approached the 2^nd respondent for obtaining power supply, he came to know that the 5^th respondent addressed a letter to the 2^nd respondent dated 18.03.2020 bringing to its notice the deviations of the sanctioned plan and issuance of notices under Sections 452 & 636 of APMC Act and requested not to provide power supply to the petitioner’s building until further orders. Thereafter, the petitioner submitted representation to the 4^th respondent

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dated 20.03.2020 bringing to its notice about payment of Rs.1,18,565/- towards building permission and his readiness to pay penalty for 3^rd floor under building penalization scheme and requested to provide power supply for remaining stilt + ground + two upper floors. As no action is taken on the said representation, the petitioner again submitted another representation to the 4^th respondent on 31.08.2020. Besides that he also submitted representations on 12.10.2020 and 30.11.2020 to the respondents 2 & 3 requesting to provide power supply to all the floors stating that in case the GVMC authorities do not accord permission/regularize 3^rd floor in future, they can disconnect power supply to the unauthorized third floor. However, basing on the letter dated 18.03.2020 to the 2^nd respondent, the respondents 2 & 3 are not providing electricity service connection to the petitioner’s building. Assailing the same, the present writ petition came to be filed.

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Learned counsel for the petitioner submits that the letter addressed by the 5^th respondent to the 2^nd respondent is ex facie illegal, unjust, arbitrary and violative of principles of natural justice. Respondents 4 & 5 do not have power to direct the 2^nd respondent not to provide power supply to the petitioner’s building on the ground that the petitioner deviated sanctioned plan and constructed third floor unauthorisedly. Mere construction of third floor unauthorizedly will not preclude the respondents 2 & 3 in providing power supply to the petitioner’s building as the petitioner has, in specific terms, stated in the representations that in case the unauthorized 3^rd floor is not regularized, the power supply may be disconnected. Placing reliance on rule 33(j) of the A.P Building Rules, 2017, learned counsel contends that as per the said provision, the respondents are under obligation to provide power supply to the entire building or at least to the stilt+ground+2 upper floors for which the petitioner is having approved plan. Therefore, the action of the respondents in

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denying the power supply to the petitioner’s building is arbitrary, violative of principles of natural justice and also violation of Rule 33(j) of the A.P Building Rules.

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Learned standing counsel appearing for the respondents 4 & 5, at the outset, submitted that the writ petition filed by the writ petitioner is liable to be dismissed for the reason that the petitioner has not approached this Court with clean hands and stated true facts before this Court. In substantiation of the said submission, he pointed out that the petitioner had earlier filed a writ petition - W.P.No.9945 of 2020 to declare the 636 notice issued by the respondents 4 & 5 herein as illegal and set aside the same and consequently direct the respondents therein not to interfere with the property of the petitioner. Having failed to obtain even an interim order in the said writ petition, the present writ petition is filed, suppressing the fact of filing of the said writ petition. This relevant material which was well within the knowledge of the petitioner has been deliberately and intentionally suppressed by petitioner in the instant writ petition. Therefore, he vehemently submitted that the writ petition filed by petitioner is liable to be dismissed in view of suppression of material facts before this Court.

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Learned standing counsel further placing reliance on Rule 26 of the Andhra Pradesh Building Rules, 2012 submits that as per the said provision, no person can occupy a building without intimating the GVMC regarding completion of construction and till 21 days thereafter if, in the interregnum, GVMC does not pass any order. Admittedly, in the present case, no application has been submitted by the writ petitioner for grant of an occupancy certificate. Even otherwise, the building permission obtained by the petitioner was for construction of a residential building viz., stilt + ground + two upper floors but the petitioner has unauthorisedly constructed 3^rd floor. Since the

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petitioner has not obtained any occupancy certificate, he cannot be permitted to occupy the building by obtaining electricity service connection. In support of his contention, he placed on the decision of a Division Bench of common High Court dated 08.03.2017 in W.A.No.1156 of 2017. He would also submit that mere payment of tax does not dispense with the requirement of obtaining occupancy certificate.

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In reply to the contention of learned standing counsel with regard to suppression of material facts, learned counsel for the petitioner, having drawn the attention of this Court to paragraph No.6 of the writ affidavit, tried to persuade this Court that there is no suppression of material fact.

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Paragraph No.6 of the writ affidavit reads verbatim as follows:

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“I respectfully submit that in the meantime the 4^th respondent has issued notice vide U.C.B.A.No.1086/0211/B/CLI/2019 dated 16.03.2020 under Section 636 of Andhra Pradesh Municipal Corporation Act, 1994, alleging that I have constructed the building in deviation to the sanctioned plan of stilt + ground + 2 upper floors under B.A.No.1086/0211/B/Z1/CLI, dated 22.02.2019 and also unauthorizedly constructed third floor. The notice further speaks that issuance of show cause notice on 20.02.2020 and explanation submitted by me on 26.02.2020 without any cogent reasons and thus directed me to remove the unauthorized constructed third floor made in Door No.2-116, Indiranagar, Division-3, within 24 hours from the date of receipt of the notice failing which the unauthorized construction referred in the notice dated 16.03.2020 will be removed departmentally and the expenses incurred will be recovered from me. I further submit that thought I have submitted by explanation setting out the reasons for undertaking third floor, the 4^th respondent in the 636 notice erroneously stated that my explanation is nothing but bald suggestions and stray statement.”

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Nowhere in the said paragraph the facts regarding filing of W.P.No.9945 of 2020 have been mentioned. However, learned counsel for the petitioner further submits that the relief sought in W.P.No.9945 of 2020 is with regard to

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setting aside the notice issued under the provisions of Section 636 of the Act, 1994 whereas the present writ petition is filed questioning the proceedings of the 5^th respondent dated 18.03.2020 asking the 2^nd respondent not to provide power supply to the petitioner’s building and therefore, non mentioning of filing of W.P.No.9945 of 2020 in this writ petition would not, in any way, amount to suppression of material fact necessary for disposal of the present writ petition.

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The above contention of the petitioner’s counsel is unacceptable. The petitioner being fully aware of the fact of filing WP.No.9945 of 2020, it is imperative for the petitioner to have made a full and correct disclosure of all the material facts concerning the filing of the earlier petition by the same petitioner with regard to the same subject though seeking a different relief. When the petitioner approached this Court seeking discretionary relief under Article 226 of the Constitution of India, the petitioner ought to have disclosed full material facts to this Court, to reach just decision. However, the petitioner without obtaining the occupancy certificate from the 4^th respondent, as required under Section 455(2) of GHMC Act and also under Rule 26 of AP Building Rules, 2012 as held by the Division Bench of combined High Court of AP in WA.No.1156 of 2017 dated 21.08.2017, filed the present writ petition.

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For the aforesaid reasons, the Writ Petition is dismissed with costs of Rs.5,000/- payable by the Petitioner to the A.P High Court Legal Services Authority within a period of four weeks from the date of receipt of a copy of this order and place on record the proof of payment of such costs.

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Pending Interlocutory Applications, if any, shall stand closed.

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______________ M.GANGA RAO, J

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07.01.2020 Vjl

P David Raju v. State of Andhra Pradesh

Case brief

What is this about?

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P David Raju v. State of Andhra Pradesh

Case brief

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