Allowed

Y. Nagendra Prasad Reddy, v. The State of A.P.

Andhra Pradesh HC6 Feb 2024WP/22190/2012

Case brief

AI extract

What is this about?

A writ petition challenged the Nellore Municipal Corporation's speaking order on a building constructed without mandatory setbacks and with alleged encroachments on Government land. Holding the show-cause notice omitted key particulars, violating natural justice, the court set aside the order and directed fresh lawful consideration of the BPS application.

What did the court decide?

Impugned order U.C.No.3/2012/BO-IV dated 02.07.2012 set aside; respondent No.2 to pass orders on BPS application within four weeks; no coercive steps till then.

Y. Nagendra Prasad Reddy, Vs The State of… — Municipal and Town Planning | Andhra Pradesh HC (2024)

¶1

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

¶2

(Special Original Jurisdiction)

¶3

WEDNESDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

¶4

PRESENT

¶5

THE HON’BLE SRI JUSTICE SUBBA REDDY SATTI

¶6

WRIT PETITION NO: 22190 OF 2012

¶7

Between:

¶8

Y. Nagendra Prasad Reddy, S/o. Chenchu Ranga Reddy, Aged about 50 Years, Occ: Business, R/o. 3F, Balaji Menor Apartments, Magunta Layout, Nellore -3.

¶9

...PETITIONER

¶10

AND

¶11

The State of A.P., Rep. by its PrI. Secretary, Municipal Administration Dept. Secretariat, Hyderabad.

¶12

Nellore Municipal Corporation, Nellore, Rep by its^Commissioner

¶13

E. Konda Reddy, S/o. Venkat Reddy, Occ: Retd. Employee, R/o. Ill Floor-A, Vaibhav Enclave Apartment, Magunta Layout, Nellore.

¶14

...RESPONDENTS

¶15

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 such appropriate writ, order or direction, more so particularly one in the nature of mandamus declaring the order of the 2"'^ respondent in U.C. No. 3/2012/BO-IV, dated 2-7-2012 as arbitrary, illegal, being contrary to the relevant Rules and settled law and consequently set aside the^same.

¶16

I.A. NO: 1 OF 2012fWVMP. NO: 2715 OF 2012)

¶17

Between:

¶18

E. Konda Reddy, S/o. Venkat Reddy, Occ: Retd. Employee, R/o. Ill Floor-A, Vaibhav Enclave Apartment, Magunta Layout, Nellore. ...PETITIONER/3^'' RESPONDENT AND

¶19

Y. Nagendra Prasad Reddy, S/o. Chenchu Ranga Reddy, Aged about 50 Years, Occ: Business, R/o. 3F, Balaji Menor Apartments, Magunta Layout, Nellore -3.

¶20

...RESPONDENT/WRIT PETITIONER

¶21

The State of A.P., Rep. by its PrI. Secretary, Municipal Administration Dept., Secretariat, Hyderabad.

¶22

Nellore Municipal Corporation, Nellore, Rep by its^Commissioner

¶23

...RESPONDENTS/RESPONDENTS

¶24

Petition under Section 151 CPC praying that in the^{circumstancesstatedin} the affidavit filed in support of the writ petition,^theHighCourt may^bepleased vacate the order passed in WPMP No: 28451 of 2012 in^{WPNo:22190of2012} dated 20-7-2012.

¶25

I.A. NO: 2 OF 2012(WPMP. NO: 28451 OF 2012)

¶26

Petition under Section 151 CPC praying that in the^{circumstancesstatedin} the affidavit filed in support of the petition, the High Court may be pleased^to grant order of the 2"'nd stay of all further proceedings pursuant to the impugned respondent in U.C. No. 3/2012/BO-IV, dated 2-7-2012,^{pendingdisposalofthewrit} petition by this Hon'ble Court.

¶27

I.A. NO: 1 OF 2013(WPMP. NO: 22814 OF 2013)

¶28

Petition under Section 151 CPC praying that in the^{circumstancesstatedin} the affidavit filed in support of the petition, the High Court may be pleased^to direct the Writ petitioner not to proceed with construction of the building in plot No. 884/part, opposite to Vaibhav Apartment, Magunta lay-out Nellore, pending disposal of the above Writ Petition.

¶29

Counsel for the Petitioner : SRI KOTHAPALLI SAI SRI^HARSHA Counsel for the Respondent No.1 : GP FOR MUNICIPAL^ADMNANDURBAN DEVELOPMENT Counsel for the Respondent No.2 : SRI KALAVA SURESH^KUMARREDDY, SC FOR MUNICIPALITY Counsel for the Respondent No.3 : SRI P. GANGA RAMI^REDDY

¶30

The Court made the following: ORDER

¶31

IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI

¶32

THE HON’BLE SRI JUSTICE SUBBA REDDY SATTI

¶33

WRIT PETITION No.22190 OF 2012

¶34

Between:

¶35

Y.Nagendra Prasad Reddy, S/o Chenchu Ranga Reddy, Aged: 50 years, Occ: Business, R/o 3F, Balaji Menor Apartments, Magunta Lay Out, Nellore-3.

¶36

... Petitioner

¶37

And

¶38

The State of Andhra Pradesh, Rep. By its Principal Secretary, Municipal Administration Department, Secretariat, Hyderabad and two others.

¶39

.. Respondents

¶40

Counsel for the petitioner Sri K.Sai Sri Harsha Counsel for respondent No.l GP for Municipal Administration Sri K.Suresh Kumar Reddy, Counsel for respondent No.2 Standing Counsel

¶41

Counsel for respondent No.3

¶42

Sri P.Ganga Rami Reddy

¶43

ORDER

¶44

Assailing the speaking order vide U.C.No.3/2012/BO-IV, dated 02.07.2012 issued by the Commissioner of respondent No.2, the above writ petition is filed.

¶45

Page 2 of 8

¶46

SRS, J W.P.No.22190 of 2012

¶47

Heard Sri K.V.Bhanu Prasad, learned Senior Counsel assisted by Sri K.Sai Sri Harsha, learned counsel for the petitioner and Sri P.Anand Surya, learned counsel representing Sri K.Suresh Kumar Reddy, learned Standing Counsel appearing for respondent No.2 and Sri P.Ganga Rami Reddy, learned counsel appearing for respondent No.3.

¶48

During hearing, learned Senior Counsel would submit that petitioner made application seeking regularization of unauthorized strueture and setbacks and paid the requisite^fee and the same is pending consideration. Sri P.Anand Suiya, learned counsel appearing for respondent No.2, on instructions would submit that application is pending and the authority^will pass appropriate orders.

¶49

In respect of speaking order impugned in the writ petition, learned senior counsel would submit that encroachments said to have been made in Government land is not mentioned in the show-cause notice. He also would contend that measurements of setback were not mentioned in the show-cause notice.

¶50

Sri P.Ganga Rami Reddy, learned counsel appearing for respondent No.3 and learned Standing Counsel would submit

¶51

Page 3 of 8

¶52

SRS, J W.P.No.22190of 2012

¶53

that in the show-cause notice, it was mentioned that building was constructed without leaving any mandatory setbacks in violation of building Rules and layout conditions of master plan during regulations.

¶54

Sri P.Ganga Rami Reddy, learned counsel further would submit that in view of the setbacks pointed out in^theshow- cause notice, the petitioner is not entitled for regularization^of the building. He also would submit that after according permission to construct apartment in 266.22 ankanams vide proceedings in B.A.No. 101/97, the builder sold away 19.80 ankanams, out of 266.22 ankanams to one P.Radhakrishna Reddy, who, inturn sold 11.11 ankanams, out of 19.80 ankanams.

¶55

in 7. Learned counsel for the petitioner would submit that the show-cause notice, all these alleged violations are not mentioned.

¶56

It is settled law that show-cause notice should contain^all the particulars, enabling the person to submit explanation. Though, it was mentioned in the show-cause notice that^G+3 RCC building was constructed in violation of building^rulesand

¶57

Page 4 of 8

¶58

SRS,J W.P.No.22190 of 2012

¶59

layout conditions of master plan and without leaving mandatory site, in the opinion of this Court, all the particulars qua the deviations were not mentioned enabling the petitioner to submit explanation. Apart from that, encroachments said to have been made by the petitioner as pointed out in the speaking order, were not mentioned in the show-cause notice.

¶60

In Janardan daishanhar dokharkarv. State of

¶61

Gujarat^, the Gujarat High Court observed as under:

¶62

On perusal of the record, it is noticed that in the notice dated 12.12.1988, pursuant to which the impugned order has been passed, no allegation about the construction touching the State Highway and/or insufifcient margin was mentioned. In absence of any such reference in the notice, the impugned order passed by the Secretary (Appeals) turns into an order beyond the scope of the notice. The authority passing an order of adjudication cannot take into account the grounds or circumstances which are not alleged in the notice and/or in respect of which the petitioner is not put to notice. Otherwise, the very purpose of issuing notice and inviting explanation is frustrated, and going beyond the purview of the Show Cause Notice or taking into account aspects not enumerated in the Show Cause Notice and making them basis for the order also amount

¶63

‘2008 (2) GLH 717

¶64

Page 5 of 8

¶65

SRS, J W.P.No.22190of2012

¶66

to violation of principles of natural justice. When an authority passes an order which is based on grounds^or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing^and becomes violative of audi alteram partem rule. In present case, it is obvious that the grounds of insufficient margin and/or the building touching the State Highway are not mentioned in the Show Cause Notice. Not only this, but even the order of the original and competent authority also does not contain any such ifnding offact at his stage in the order dated 11.2.1989. In this view of the matter, it was not permissible for the Secretary (Appeals) to take into consideration aspects which did not form part of the Show Cause Notice and/or which were not refected in the original order impugned before that authority. The impugned order,^on this ground, alone deserves to be set aside. ”

¶67

In Kesarbhai Bhagwanbhai v. State of Gujarat, reported in 1997 (3) GLR 2142, a similar view has been taken by this Court. 18. In Anand D. Lodariya Salt & Storage Pvt. Ltd. V. State of Gujarat Through Special Secretary through Special Secretary Special Civil Application No. 9757 of 2012, decided on 28.12.2012., after considering the above judgments, this Court has held as below;

¶68

U 19. The principles of law enunciated in the above-quoted judgments would squarely apply to the facts of the present case. By passing the impugned

¶69

Page 6 of 8

¶70

SRS,J W.P.No.22190 of 2012

¶71

order that is undoubtedly beyond the scope of the Show Cause Notice and directing the vesting of the land for breach of conditions, other than condition No. 6, for which the Show Cause Notice was issued, there is a flagrant violation of the principles of natural justice. The rule of Audi Alteram Partem that enjoins an adequate opportunity of hearing, has been violated by the respondents as the petitioners have not been granted an opportunity of hearing for the alleged breach of the other conditions. not mentioned in the Show Cause Notice. The ifndings of respondents Nos. 2 and 1 are. therefore, unsustainable in law.

¶72

. 10.. In view of the above, speaking order vide

¶73

U.C.NO.3/2012/BO-IV, dated 02.07.2012 issued by the

¶74

Commissioner of respondent No.2, is liable to be set aside.

¶75

Accordingly, the Writ Petition ISi allowed by setting aside the speaking order vide U.C.NO.3/2012/BO-IV, dated 02.07.2012 issued by the Commissioner of respondent No.2. Respondent No.2 shall pass appropriate orders in the BPS application, strictly in accordance with law, within a period of four (4) weeks. If respondent No.2 comes to a conclusion that petitioner is not entitled under BPS scheme, it is open to the respondent No.2 to issue fresh notice, in accordance with law.

¶76

Page 7 of 8

¶77

SRS, J W.P.No.22190 of 2012

¶78

pointing out all the breaches and proceed in accordance^with law.

¶79

Any finding is recorded in this order, will not come in the way of authority in considering the BPS application or any further proceedings. Till passing of orders, respondent authorities shall not take any coercive steps in respect of petitioner’s property. There shall be no order as to costs.

¶80

As a sequel, pending miscellaneous petitions, if any,^shall stand dismissed.

¶81

Rule Nisi has been made absolute as above. Witness the Hon’ble the Chief Justice Sri Justice Dhiraj Singh Thakur on this Wednesday, the Seventh day of February, Two Thousand and Twenty Four.

¶82

Sd/- SHAIK MOHD RAFI ASSISTANT REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

The Principal Secretary, Municipal Administration Dept., State of A.P., Secretariat, Velagapudi, Amaravati, Guntur District.

¶87

The Commissioner, Nellore Municipal Corporation,^Nellore. 3. One CC to Sri Kothapalli Sai Sri Harsha, Advocate [OPUC] 4. One CC to Sri P. Ganga Rami Reddy, Advocate [OPUC] 5. One CC to Sri Kalava Suresh Kumar Reddy, SC for Municipality [OPUC] 6. Two CCs to GP for Municipal Admn and Urban Development, High Court of Andhra Pradesh. [OUT]

¶88

Three C.D. Copies. Cnr gl

HIGH COURT

DATED:07/02/2024

ORDER

WP.No.22190 of 2012

ALLOWING THE W.P. WITHOUT COSTS

¶94

&
|3'

Y. Nagendra Prasad Reddy, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Y. Nagendra Prasad Reddy, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Indian Hume Pipe Co. Ltd, Vs the The State of Andhra Pradesh

S.Gunasekhar Naidu, Vs The State of Andhra Pradesh

Alle Prabha Nagi Reddy Vs The State of Andhra Pradesh

Pedamallu Anjaneyulu, Krishna Dist and Anr. Vs Prl Secy, M a and U D Dept., Hyd and 5 Others

Tenneti Meenakshi Rajasekhar, Vs The Greater Visakhapatnam Municipal Corporation

Rapeti Nookaraju, Vs Greater Visakhapatnam Municipal Corporation