Pithalla Srinivasa Rao, Vs The State of Andhra Pradesh

THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT DEPARTMENT, A.P SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATHI, GUNTUR DISTRICT, ANDHRA PRADESH

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THE MANGALAGIRITADEPALH MUNICIPAL CORPORATION, REP. BY ITS COMMISSIONER AT MANGALAGIRI

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MR THOTA SUBBA RAO, S/O NAGA BHUSHANAM,R/O PLOT NO.108,BLOCK-B, SRI BALAJI FORTUNR TOWERS, INFRONT OF AUTONAGAR, MANGALAGIRI TOWN, GUNTUR DISTRICT, A.P.-522503. R3 IS IMPLEADED AS PER THE COURT ORDER DT.02.05.2024 VIDE ORDERS PASSED IN I.A.NO.01 OF 2023.

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...RESPONDENT(S):

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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 toto issue an appropriate Writ, order or direction mostly one which is in the nature of a Writ of Mandamus declaring the order in UC No.1/2021/WPRS-15 dt.29.1.2022 of the 2nd Respondent as illegal, irregular, arbitrary, unwarranted, unreasonable, unjustified, unfair, unconstitutional and unsustainable and set aside the same and pass

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IA NO: 1 OF 2022

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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 Respondents not to demolish any structure in the building called as Sri Balaji Fortune Towers, situated at D-66, Opp. Autonagar, Mangalagiri, Guntur District in pursuance of order in UC No.1/2021/WPRS-15, dt.29.1.2022 of the 2nd Respondent and pass

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IA 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 pleased to permit the petitioners to implead the proposed respondents no. -3 as respondents no.-3 in W.P.No. 4384 of 2022 and pass

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Counsel for the Petitioner:

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1.SODUM ANVESHA

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Counsel for the Respondent(S):

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1.A S C BOSE (SC FOR MUNICIPAL CORPORATIONS AP)

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2.SOMISETTY GANESH BABU

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3.GP FOR MUNCIPAL ADMN URBAN DEV The Court made the following:

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THE HONOURABLE SRI JUSTICE HARINATH.N WRIT PETITION No.4384 of 2022

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ORDER :

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The petitioner is aggrieved by the impugned proceedings dated 29.01.2022, which were issued by the respondent no. 2, calling upon the petitioner to remove the unauthorised construction in the area meant for parking. It is alleged in the impugned notice that the petitioners are in the process of undertaking unauthorised construction and that they have constructed rooms in an extent of 122.88 square meters on the stilt floor.

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Sri.P.Veera Reddy, learned senior counsel appearing on behalf of petitioner submits that, the petitioner, along with others, had proposed construct a residential complex and a total of 80 flats in two blocks. The relevant application was submitted to Mangalgiri Municipality for permission. It is also submitted that, at that time, the Vijayawada, Guntur, Tenali, and Mangalagiri Urban Development Authority existed. The said Authority issued a sanction on 12.02.2013, providing the technical sanction. The Mangalagiri Municipality, by an order dated 20.03.2013, granted permission for the construction of a stilt floor for parking, plus a ground floor, plus four upper floors.

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It is also submitted that while the permission for construction was

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sanctioned. A condition stipulating a mortgage of 10% of the constructed area to the municipality was to be created to ensure

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that the construction is in accordance with the sanction plan. The petitioner accordingly executed a mortgage deed on 26.02.2013.

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It is submitted that the construction was completed well within the

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stipulated time. After the respondent authorities found deviations, the applicable penalty was paid by the petitioner. Thereafter, the Mangalagiri Municipality issued an occupancy certificate on 24th April, 2017. It is also submitted that all the flats have been sold and are occupied by the respective purchasers. It is submitted by the learned counsel for the petitioner that the occupancy certificate was issued only after the premises and construction were inspected. It is submitted that an extent of 400 square feet in the stilt area was converted as an office room, a storage room and a watchman room and that the Municipal Authorities have considered this construction and thereafter issued the occupancy certificate. It is also submitted that after the issuance of the occupancy certificate, the Municipal Commissioner, in a letter dated 21.04.2017, requested the Sub Registrar, Mangalagiri, to re-convey the mortgage property to the petitioner, duly cancelling the mortgage deed that was registered earlier. Accordingly, the mortgage deed was cancelled, and the petitioner also sold the flats that were under mortgage.

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It is submitted that the respondent No. 2, which was formed after

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the merger of both the municipalities, has issued the provisional order dated 10.12.2021 calling upon the petitioner to explain as to

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why the deviated extent of construction should not be removed within a period of 7 days. It is submitted that an explanation was submitted on 16.12.2021, duly informing that the then Municipal Authority had considered the Construction in the stilt area and issued the occupancy certificate only after payment of the penalty for the deviated extent of construction. It is also submitted that the respondent No. 2 issued another show cause notice on 10.01.2022 by repeating the same allegations of the alleged unauthorised construction. The petitioner submitted a reply on 13.01.2022, which was not considered by respondent No. 2. An order dated 29.01.2022, confirming the provisional order, was passed. The said order was served on the petitioner on 12.02.2022.

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Learned senior counsel appearing for the petitioner submits that the respondent No.2 authority could not have issued a show cause notice calling upon the petitioner to submit an explanation about the alleged unauthorised construction. More so when the Competent Authority had issued an occupation certificate. It is also submitted that the petitioner had also paid the applicable penal charges for the deviated construction, which was well within the permissible limits. It is submitted that when the competent Authority has considered all these issues and issued the occupancy certificate. There could not have been an occasion for respondent No.2 to raise an issue that was closed after the lapse of five years.

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The respondent No. 2 has filed a detailed counter, stating that the writ petition filed by the petitioner lacks bona fides, as the petitioner has filed the present writ petition by suppressing the true facts. It is alleged that the then competent Authority had never considered the disputed construction in the stilt area and deemed it permissible for the grant of the occupancy certificate dated 21.04.2017.

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It is submitted that, as of the date of the occupancy certificate, the stilt area designated for parking was completely vacant, as per the sanctioned plan. It is also submitted that the petitioner had resorted to the additional construction after the grant of the occupancy certificate. It is also stated in the counter that the respondent no. 3 had filed a complaint before the respondent no. 2 alleging that the petitioner had constructed illegally in the parking area and occupied 1800 square feet of parking area, and is conducting business from the said premises. It is also submitted that, after receipt of the complaint from respondent no. 3, the concerned staff of respondent no. 2 visited the subject site and found the unauthorised construction in the stilt floor, which was used for office purposes in deviation from the approved plan. Accordingly, the impugned notices were issued.

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It is also submitted that, construction of a watchman room with two toilets is permissible with a maximum built-up area of 25 square meters in the parking area. However, insofar as the deviation is

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concerned in the stilt floor, it was found that the petitioner had constructed illegal rooms measuring 12.8 X 9.6 square meters, equivalent to 122.88 square meters.

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The 3rd respondent has filed an implead petition and is impleaded as party/respondent No.3, the learned counsel for the respondent no. 3 also submits that the petitioner is running his office from the illegal and unauthorised construction in the area meant for parking, which is causing inconvenience to the flat owners and the residents. It is prayed that the writ petition deserves to be dismissed as the petitioner has approached this Court with unclean hands.

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Heard the learned senior counsel for the petitioner, learned Standing Counsel for the 2^nd respondent and the learned counsel for the 3^rd respondent. Perused the material on record.

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The challenge of the petitioner to the impugned proceedings on the ground that the impugned proceedings referred to the provisions of the Andhra Pradesh Capital Regional Development Authority and Section 115(3) of the said Authority. However, the same are issued by the 2nd respondent under the provisions of Section 115(4) of APCRDA Act and Section 640 of HMC Act, 1955. They said the Commissioner of the 2nd respondent issued the impugned proceedings.

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The submissions of the learned senior counsel that the notice issued by the 2nd respondent is not only vague, but also lacks jurisdiction. The further submission that the 2nd respondent cannot take up any further action in pursuance of the said notice would not sustain the scrutiny of law in furtherance of the issuance of GOMs.No.19, dated 23.03.2021.

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From the pleadings, it is evident that the petitioner had constructed the disputed and deviated construction in the cellar only after the issuance of the occupancy certificate and as seen from the record, it is evident that as on the date of issuance of the occupancy certificate, the stilt portion of the constructed building was open for parking.

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In any residential apartment complex, once the flats are constructed by the developer(s), the individual flats are sold to the prospective buyers. Neither the landlord nor the builder can claim any peculiar or particular right over the common amenities and common areas, including terrace rights. The common areas of the flats are the common property of the residents. The petitioner cannot construct or utilise any portion of the common area by constructing any room or office space in the common area. All residents have the right to use these areas, and all of them have equal and shared access.

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In the circumstances of this case, the unauthorised construction in the stilt area by the petitioner warrants immediate removal, and this Court finds no grounds to interfere with the impugned proceedings. The action of the respondent No.2 in issuing the impugned proceedings is justified. It is left open for respondent No. 2 to take the necessary steps for reclaiming the parking area on the stilt floor barring the watchman room and the toilet for the watchman occupying the permissible extent of 25 square meters. The rest of the unauthorized construction deserves to be removed and the

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parking area has to be restored for parking purposes.

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