Dismissed

Godavarthy Rama Krishna, v. The State of Andhra Pradesh

Andhra Pradesh HC29 Jul 2024WP/1057/2021

Case brief

AI extract

What is this about?

The Writ Petition challenging the regularization of illegal constructions by Respondents 4 to 9 under the Building Penalty Scheme was dismissed. The Court held that absent public safety hazards, judicial review of administrative regularization decisions is limited, and grievances regarding air and sunlight fall under the Easementary Act rather than writ jurisdiction.

What did the court decide?

Writ Petition dismissed without costs.

Godavarthy Rama Krishna, Vs The State of… — Municipal and Town Planning | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH::AMARAVATI " (Special Original Jurisdiction)

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TUESDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR

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WRIT PETITION NO: 1057 OF 9n?i

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Between:

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^ Siva Rama Prasad Rao °'

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'’56M66 Reo'b® h* pT^' Bore wlll°Roa®d° White Filed,- "9'"®®'''bengalore Gupta, 1/ ^^e;L°as:bba°Rro, Age^S^^^/ea^^ , ravuru road

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vlL7^^mvlHa%^';^n7m^andarP^lS^^^^ ' RaTA^ed'el'Yea^s’^R/^J^o'^No"? Venkatasubba atSaTarc^Lt^cT'^'^'' -d^^aTap\l/m"tra^g'e"a^n1J

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...Petitioners AND

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^ of Andhra Pradesh, Rep. by Princioal Serr^t^rv r Raj department, A.P. Secretariat, Velagapudi, Guntur Diltrrct.Panchayat Sntur^g'isS^"'’'^''' Country planning, Guntur,

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W.age?nt^?nd°;r?fak:ral;^’'Dl^,r!:r'

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'■ ^earl"‘"occ%"fnesT'"^ro ^oo ^4 Vetapalem Village and' Po%, °Prak°aTaml^^f" 0"'“®' Years,

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‘ “ss»=’'«s “ Road,Vetapalem Mandal and Post, Prakasam District. railway station.

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®' l' ^9®'^ "^out 57 Anumalli Peta, Vetapalem Village and PosrPrakaLm''SrJ^rict,

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Muvvala Viswa Santhi, W/o. Suresh, Aged 53 years, Occ. Business, R/o. D. No. 7-3-98, vani Nagar, Firoz Guda, Boyinapalli,^Secunderabad Rangareddy District.

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Yadavalli Naga malleswari, W/o. Siva Prasad, Aged about 35 Years, Hindu, Occ. Business, R/ o. D. No. 18-169, Ramnagar, Desaipeta Panchayat, Vetapalem Mandal, Prakasam District.

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Maddala Sarath babu, S/ o. SulDrahmanyam, Aged about 40 Years, Occupation: Business, R/ o. D. No. 4-86, Vasavi Nagar, Devangapuri,’ Jandrapeta, Prakasam District.

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...Respondents

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue order or direction more particularlyⁱⁿ the nature of Writ of Mandamus declaring the action of the Respondent No.1 to 3 in not taking any action against the Respondent Nos. 4 to 9 in making illegal constructions by violating the Building permission and without leaving any set-backs and obstructing the free flow and light to the Petitioners premises in Old D. No. 24-142, new D. No. 4-149, Assessment No. 1931, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District, and issuing BPS Proceedings No. BPS2019/PRAA/ET/VET/41154 dated 09-102019, as illegal, arbitrary, violation of Principles of Natural Justice and violation of Articles 14, 21 and 300A of the Constitution of India, and setaside the said BPS Proceedings and consequently direct the Respondent No.2 to remove the illegal constructions made by the Respondent Nos. 4 to 9 in D.No. 4-149, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District and in the subject premises

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lA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondent No.2 and 3 not to give occupancy Right Certificate to Respondent No. 4 to Respondents No. 9 in respect of Building

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in D. No. 24-142, new D. No. 4-149, Assessment No. 1931, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District,^forthwith.

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lA NO: 2 OF 2021

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondent No.2 and 3 to stop the illegal constructions made by the Respondent Nos.4 to 9 in Old D. No. 24-142, New D. No. 4-149, Assessment No. 1931, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District, forthwith.

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to the petitioner/ 3rd respondent^to file counter in W.P.No.1057/2021in the interest of justice

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lA NO: 2 OF 2023

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to receive the counter copies on record by allowing the leave petition in the above writ petition

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lA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to the Petitioner to file the present Reply Affidavit to the Counter Affidavit filed by the Respondent Nos.4 to 9

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lA NO: 2 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to the Petitioner to file the present reply affidavit to the counter affidavit filed by the Respondent No.3

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lA NO: 3 OF 2024

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Counsel for the Petitioner: SRI PSP SURESH KUMAR

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Counsel for the Respondents No.1 and 2: GP FOR PANCHAYAT RAJ RURAL DEV

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Counsel for the Respondent No.3: SRI MR. VENKAT REDDY GAJJALA Counsel for the Respondent No.5 to 9: SRI CH. JAYANTHA RAO

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Counsel for the Respondent No.4: None

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The Court made the following: Order

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■ THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

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WRIT PETITION No.1057 OF 2021

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ORDER:

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This Writ Petition is filed under Article 226 of the^{Constitutionof}

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India for the following relief:"To issue order or direction more particularly in the^natureof

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Writ of Mandamus declaring the action of the Respondent^Nos.1to 3 in not taking any action against the Respondent Nos.4^to9 in making illegal constructions by violating the Building^{permissionand} without leaving any set-backs and obstructing the free^flowandlight

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. to the Petitioner’s premises in Old D.No.24-142,^{newD.No,4-149,} Assessment No.1931, Ravuru Road, Vetapalem Village,^Desaipeta Panchayath, Prakasam District and issuing BPS Proceedings NO.BPS2019/PRAA/ETA/ET/41154 dated 09.10.2019, as illegal, arbitrary, violation of Principles of Natural Justice^{andviolationof} Articles 14, 21 and 300A of the Constitution of India^andset-aside the said BPS Proceedings and consequently direct the^Respondent No.2 to remove the illegal constructions made by the^Respondent Nos.4 to 9 in D.No.4-149, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District and in the subject premises and pass such other orders...."

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The present Writ Petition is being filed to obtain^mandamusfor the authorities' failure to act, despite a representation^beingmadeto respondent Nos.1 to 3, which brought to their attention^notonlyabout the construction of a building in violation of building rules and regulations and the respondent Nos.4 to 6 have encroached^uponthe property and have entered into an agreement development with the

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respondent Nos.7 to 9 and constructed the building without leaving any set-backs with 100% deviation and the said construction is causing irreparable loss and injury and it is obstructing free^flow of air and sunlight to the petitioner, but the authority did not act; therefore seeking directions to take action against the respondents for illegal construction, as it is not permitted according to building rules.

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It is also asserted in the affidavit filed in support of the Writ Petition that the petitioners herein filed O.S.No.376 of 2019 on the file of the Court of Principal Junior Civil Judge at Chirala for permanent injunction and Interlocutory Application for temporary injunction and the said suit is pending for adjudication. 4. The unofficial respondents have filed their responses,^deniedthe assertions made by the petitioners, and acknowledges that they have built the building violating the building permit, according to the assertion, a new building was constructed in the year 2017 in D.No.24-142 new D.No.4-149, Assessment No.1931, Ravuru Road, Vetapalem Village, and denied the encroachment and obstruction of the free flow of air and sunlight to the petitioners’ premises, and stated that it is invited for the Writ Petition. It is stated that, in fact, the petitioners have filed a civil suit for permanent injunction and the same was dismissed, by circumventing the law, the petitioners have presented the present Writ Petition. The Court's denial of the injunction shows that the petitioners' property was not invaded, inter alia, it is asserted that the BPS scheme was introduced by the government in the year 2019 as per G.O.Ms.No.14 dated 04.01.2019, and they have applied^forthescheme and the permission was accorded, vide BPS 2019/PRAA/ETA/ET/

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41154, dated 09.10.2019, and the building was regularised by the authorities on receipt of an amount of Rs.29,86,064/- for regularisation and the petitioner has attempted to circumvent the law with malicious intention in order to gain wrongful and to cause wrongful loss, hence prayed to dismiss the Writ Petition with costs.

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The 2'"'^ respondent filed counter, asserting that as per the G.O.Ms.No.14 dated 04.01.2019 an order was issued by the Government to regularize and penalize the buildings constructed unauthorized and in deviation from approved plans in the jurisdiction of all Gram Panchayats falling in Urban Development Authorities on par with the urban local bodies. Basing on the orders and provisions issued by the government, vide the aforesaid G.O., the 2^"^ respondent has got penalized the building constructed by the petitioners, since the said alleged building got regularized in the aforesaid government order, and no further cause of action on the alleged building^needtobe initiated and also stated that they have collected requisite charges from the respondent Nos.4 to 6. Hence, prayed to dismiss the^{WritPetition.}

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Learned counsel appearing for the petitioners would^submitthat as per the G.O.Ms.No.14 dated 04.01.2019, one has to apply for regularization within 90 days under sub-rule (6) of^{Rule3oftheG.O.} and the petitioners herein have made an application^{on28.08.2019and} the penalization order was passed on 09.10.2019 and the application filed for regularisation is contrary to sub-rule (6) of Rule 3, as it is beyond the period of limitation, and the authorities have no right to entertain the application, as it was filed beyond the time limit, that it is evident that the official respondents, along with the unofficial

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respondents, have given consideration to the application for regularization and, therefore, he would agitate to^{allowtheWritPetition} and to direct the official respondents herein to take action against the building of unofficial respondents for constructing the building illegally, as it violates the aforementioned rule. 7. It is contested by the unofficial respondents that they are having every right to construct the building and the building^{wasconstructed} in the year 2017 and admitted that they have constructed the building in deviation and they have applied for the regularization under BPS scheme, vide G.O.Ms.No.14 dated 04.01.2019, and infringement of right of free flowing air and sunlight to the petitioners’ premises is not a ground for demolition of the house. If, at all, the petitioners are aggrieved, they have to file appropriate proceedings for easementary right. Albeit, the construction of the building in violation of the sanctioned plan, these respondents have already applied before the concerned authority for regularization of the construction beyond sanctioned plan and submitted a revised plan before^theconcerned authority and the same was approved. Therefore, the petitioners have no right to agitate that the unofficial respondents^{haveconstructedthe} building in violation of the building plan, as the same was approved by the authorities on payment of penalization charges.

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It is also contended by the learned counsel for the unofficial respondents that the Court should not interfere with the penalisation order, unless it is improper or it is shocking or conscience^oftheCourt and also contended as elucidated by the Hon’ble Apex Court in M/s.

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Rajatha Enterprises v. S.K. Sharma^ that in the absence of any evidence of public safety being in any manner endangered for the section of public being in any manner caused inconvenience by reason of the construction of the building and whatever may be the personal grievance of the petitioners, the High Court is not justified at the instance of the petitioners to order for demolition. 9. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and it would affect the settled rights of third parties, then the claim can be entertained. The petitioner has not given a clear explanation,^thebenefit of right that was deprived by filing an application for regularization beyond the limit set by the official-respondents and also unable to explain the inconvenience or show some reason the prejudice that occurred to the petitioners when un-official respondents filed their regularization application late, as prescribed under^{G.O.Ms.No.14dated} 04.01.2019, to issue a direction by this Court for^demolition. 10. As contested by the un-official respondents, the petitioners^have not stated endangerment to the section of public or to the petitioners and as seen from the affidavit filed in support of the Writ Petition, the grievance of the petitioner is that the building obstructs^{freeflowofair} and sunlight to the petitioners’ house which has to be adjudicated before the appropriate Court under the Easementary^Act. Once the authorities have regularized the building, exercising the power, the judicial review by this Court should be refrained,^{asthisCourtcannotsit}

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(1989) 2 see 495

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in an appeal over the decision of the administrative body. As the judicial review is only on certain grounds, unless it is shown that the exercising the discretionary power would be perverse. The petitioners are npt able to explain or substantiate the discretion exercised by the authorities is perverse or illegal and it is the only contention that was raised by the petitioners is that unofficial respondents have applied for building permission under the BPS scheme after lapse of time under sub-rule (6) of Rule 3 of the G.O.Ms.No.14 dated 04.01.2019. It cannot be said that as it is illegal, unless it is established that the sanction plan would affect the public safety endangering the public and in any manner it is inconvenience by reason of the construction of the building.

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It is further contended by the unofficial respondents that the petitioners have filed the civil suit and the same was dismissed and by circumventing the law, the present Writ Petition is^filed.

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For the aforesaid reasons, this Court is of the view that no grounds were raised by the petitioners herein to interdict with the building penalization scheme granted in favour of the petitioners herein. As such, there is no merit in the present Writ Petition. 13. After giving anxious consideration after perusal of the grounds in the Writ petition, it is obvious that the petitioners^have filed the Writ Petition with ulterior motive and petitioners have^{notcometoCourtwith} clean hands, the Writ Petition deserves to be dismissed.

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Accordingly, the Writ Petition is dismissed, however,^there shall be no order as to costs.

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J I i

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. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed. SD/- S. SRINIVASA ASSISTAN-n //TRUE COPY// SECTTON To,

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SD/- S. SRINIVASA PRASAD ASSISTAN-n REGISTRAR //TRUE COPY// SECTTON OFFICER

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One CC to SRI P S P SURESH KUMAR Advocate [OPUC] 2. Two CCS to GP FOR PANCHAYAT RAJ RURAL DEV, High Court^of Andhra Pradesh [OUT]

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One CC to SRI VENKAT REDDY GAJJALA, Advocate 4. One CC to SRI CH. JAYANATHA RAO, Advocate 5. Three CD Copies

gsg

HIGH COURT

DATED; 30/07/2024

ilai-

ORDER WP.No.1057 of 2021

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-9
I 1 3 AUG 202‘i „m
^ Current Section
PffSPATCVA^

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DISMISSED WP WITHOUT COSTS

Godavarthy Rama Krishna, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Godavarthy Rama Krishna, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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