Allowed

Dr.Dhulipalla Murali, v. The State of Andhra Pradesh

Telangana HC25 Apr 2017WP/1123/2017

Case brief

AI extract

What is this about?

Unauthorised reconstruction and municipal collusion led the court to invalidate building permission and regularisation, permit demolition, and restrain use or alienation. The writ petitions and contempt case were allowed. The commissioner and owner received imprisonment sentences for wilful disobedience and false affidavits, suspended for six weeks.

What did the court decide?

Building permission invalidated; regularisation and municipal memo set aside; demolition permitted within four weeks; use and alienation restrained; contempt punishment and costs ordered.

Dr.Dhulipalla Murali, Vs The State of Andhra… — Municipal and Town Planning | Telangana HC (2017)

¶1

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO

¶2

W.V.M.P.No.4714 of 2016 and W.V.M.P.No.1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017

¶3

AND C.C.No.2124 of 2016

¶4

COMMON ORDER:

¶5

Since common issues of fact and law arise between the parties to these proceedings and all these cases relate to constructions made in same premises by the non-official respondent in these cases, they are being disposed of by this common order.

¶6

Heard Sri V. Surya Kiran Kumar for petitioner, Sri Ancha Panduranga Rao, Standing Counsel for Respondents 2/5 in both W.Ps and Respondent No.1 in the CC, and Sri K.S.Murthy for Sri P.Subba Rao, Counsel for 4^th respondent in the W.Ps and 2^nd respondent in the CC.

¶7

The petitioner is a senior citizen and is carrying on Medical Profession in a hospital by name Dhulipala Hospital at premises bearing Door No.12-25-179, Opposite Sivalayam, Kothapet, Guntur.

¶8

The 4^th respondent in the Writ Petitions is the owner of the property bearing Door No.12-25-180 which is adjacent to the petitioner’s property. He is the 2^nd respondent in C.C.No.2124 of 2016.

¶9

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶10

¶11

In both writ petitions, the 1^st respondent is the State of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration, the 2^nd respondent is the Guntur Municipal Corporation, the 3^rd respondent is the A.P. Capital Regional Development Authority and the 5^th respondent is the Commissioner of the Guntur Municipal Corporation impleaded eo nominee .

¶12

W.P.No.31004 of 2016

¶13

Initially the petitioner filed W.P.No.31004 of 2016 for a Writ of Mandamus declaring the order in proceedings Roc.No.5005/2016/G2, dt 28.06.2016 issued by the 5^th respondent on behalf of the 2^nd respondent as illegal, arbitrary, malafide and without jurisdiction; to set aside the same; and to direct the 2^nd respondent Corporation to take steps for demolition of the illegal and unauthorised structures put up by the 4^th respondent in the premises 1225-180, Kothapet.

¶14

Admittedly in the premises D.No.12-25-180 belonging to 4^th respondent, there was originally a hotel by name Abhilasha Hotel. According to the 4^th respondent, his mother constructed a Ground+First floor +Second floor in the said premises after obtaining permission for construction, vide proceedings Rc.No.G3, B.L.No.421/78 dt 03.02.1978.

¶15

The petitioner contended that without obtaining any permission from the 2^nd respondent Corporation, the 4^th respondent

¶16

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶17

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excavated a cellar, raised additional pillars/beams increasing the area of each floor resulting in the set backs becoming non existent and even occupied part of the petitioner’s property. He contended that the excavation resulted in caving in of soil in petitioner’s property creating gaping holes therein and exposing water and drain pipe lines. According to the petitioner, the construction activity undertaken by the 4^th respondent endangers the safety of his building and inspite of complaints made on 25.02.2015, 07.04.2015, 17.03.2015 and 06.04.2016 to the 2^nd respondent, no action was taken by it. He contended that he also addressed a complaint to the 3^rd respondent and the 3^rd respondent wrote to the 2^nd respondent in L.Dis.No.E1169/2015 dt Nil-08-2015 stating that the construction embarked by the 4^th respondent was unauthorised and the 2^nd respondent should take action and report to it, but the 2^nd respondent did not take any action.

¶19

The petitioner then filed W.P.No.12357 of 2016 in this Court challenging the inaction of the 2^nd respondent on his complaints. The said Writ petition was disposed of on 13.04.2016 to take action within four weeks from the order on the petitioner’s above complaint.

¶20

The petitioner then filed C.C.No.916 of 2016 alleging disobedience of this order, but the said Contempt case was closed on 27.08.2016 on the basis of a counter affidavit filed by the 5^th respondent that she inspected the building and instructed the 4^th respondent to submit building proposal of third floor in accordance

¶21

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶22

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with rules; and that the staff of the 2^nd respondent corporation had removed one column on the northeast side and third floor roof slab.

¶24

Proceeding Dt 28.06.2016

¶25

A memo Roc.No.5005/2016/G2 dt 28.06.2016 was issued by the 5^th respondent to the 4^th respondent advising the 4^th respondent to apply for permission on line for construction of the third floor in his premises. This Memo is challenged in W.P.31004 of 2016.

¶26

Petitioner contends that once the 5^th respondent found that there was illegal construction being done by the 4^th respondent, she should have directed its removal and could not have issued the impugned proceeding dt 28.06.2016 advising the 4^th respondent to apply for online permission. The petitioner also filed photographs of the third floor construction being done by the 4^th respondent and also pillars for the fourth floor put up by him.

¶27

The petitioner alleges that the 4^th respondent again repaired the portion of the structure demolished in part by the 2^nd respondent and was proceeding to construct a fourth floor also.

¶28

THE INTERIM OTRDER DT.19.9.2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016

¶29

On 19.09.2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016, this Court directed the 2^nd respondent to stop

¶30

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶31

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all construction activity by the 4^th respondent since prima facie , the 4^th respondent did not have permission for construction of the third floor.

¶33

W.V.M.P.No.4714 of 2016 AND W.V.M.P.No.1473 of 2017

¶34

W.V.M.P.No.4714 of 2016 was filed by the 4^th respondent and W.V.M.P.No.1473 of 2017 was filed by 2^nd respondent to vacate the said order.

¶35

The 4^th respondent contended that the 2^nd respondent granted building permission for erecting 3^rd and 4^th floors vide permit dt.26.08.2016 on the basis of an application made online in April, 2016 by the 4^th respondent and that after obtaining such permission, he started construction of 3^rd and 4^th floors.

¶36

This contention cannot be accepted because the 2^nd respondent did not state that the 4^th respondent had applied for permission for construction of 3^rd and 4^th floors in April, 2016 as alleged by the 4^th respondent. Copy of alleged application for permission made by 4^th respondent has not been filed by respondents.

¶37

The photographs filed by the petitioner on 12.09.2016 along with the Writ petition disclosed the existence of 3^rd floor in the 4^th respondent’s building with slab, walls and window shutters apart from pillars to support the 4^th floor slab ( which was not yet laid). These photographs are not disputed by Counsel for 4^th respondent.

¶38

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶39

¶40

In my opinion, pursuant to the permission issued on 26.08.2016, by 12.09.2016 (the date when the W.P.31004 of 2016 was filed) in a mere 14 days, all the above structures could not have been erected by the 4^th respondent. So I hold that 3^rd floor was already constructed before the 4^th respondent applied for permission for construction.

¶41

Further, in my opinion, it is impossible to excavate a cellar when there is already an existing ground + two floors building (where the hotel was previously being run). This is not denied by respondents.

¶42

Obviously, the 4^th respondent had removed the old structure of Ground + two floors in which the Hotel was earlier run, excavated the cellar without permission and erected G+ 4 floors and pent house without adhering to the set backs and without taking any fresh permission for constructing the G+ 2 floors and cellar.

¶43

In any event 4^th respondent did not explain how he could have excavated a cellar without any permission.

¶44

THE REPORT OF THE I ADDL.JUNIOR CIVIL JUDGE, GUNTUR

¶45

In order to verify the allegations made by the pettionr and which were denied by 4^th respondent, on 02.03.2017 I directed the Principal District Judge, Guntur to depute a Judicial Officer to inspect the premises of the 4^th respondent and file report with photographs

¶46

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶47

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stating whether any construction was going on in the premises of 4^th respondent.

¶49

The District Judge, Guntur deputed the I Additional Junior Civil Judge, Guntur to visit the premises of the 4^th respondent.

¶50

The I Additional Junior Civil Judge, Guntur visited the site on 04.03.2017 and noticed that in the place of old building, a new construction has been going on and the interiors of the building disclose the same; for first two floors, plastering work of outside the building was not completed, but from 3^rd to 5^th floors, outside plastering work was completed; and the building consists of five floors and pent house on top. She also stated that the watchman, mason and worker informed her that previously existing hotel building was removed by the 4^th respondent and he was constructing the present building with cellar and construction work was going on. She stated that on the southern side of the ground floor there is a gap of two feet approximately between building wall and parapet wall touching the hospital parapet wall; the supporting wall of the ramp on the eastern side of the building touches the hospital wall (the building of the petitioner). Photographs were also filed by her. Thus the set backs prescribed by law were not adhered to by 4^th respondent for this newly constructed building.

¶51

No objections were filed to this report.

¶52

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶53

¶54

Thus, it is clear that the 4^th respondent deliberately and intentionally violated the order dt 19.09.2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016 and the 5^th respondent did nothing to stop the construction activity of the 4^th respondent as directed therein.

¶55

Between 12.09.2016 and 04.03.2017, the 4^th respondent completed the 3^rd floor as well as 4^th floor and also erected a pent house on the top apart from violating the set back requirements as per building bye-laws by making construction almost touching the walls of the petitioner’s building. As already held by me, 4^th respondent was not merely erecting two new floors on the old structure (where the hotel was run) but he was in fact, building an entire new structure consisting of G+ 4 floors and pent house on top after excavating a cellar.

¶56

This occurred under the very nose of the 5^th respondent and the other officials of the 2^nd respondent and yet they allowed this to go on. The 5^th respondent in fact advised the 4^th respondent to apply for permission to build 3^rd floor in the proceedings dt 28.06.2016. In the said endorsement, she made no reference to the cellar or the demolition of the old structure and erection of an entire new structure by 4^th respondent. Thus it is clear that there is clear collusion between 5^th respondent and 2^nd respondent’s officials with 4^th respondent.

¶57

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶58

¶59

In fact, since the 4^th respondent did not take any permission for excavating the cellar and building afresh ground + two floors or the pent house in the 5^th floor, and also did not adhere to set backs, the respondents 2 and 5 ought to have issued notice for demolition of the entire structure erected by the 4^th respondent on 28.6.2016 itself.

¶60

In Shanti Sports Club v. Union of India¹ , the Supreme

¶61

court declared:

¶62

“ 73. … …The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan, etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan, etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity.

¶63

74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus

¶64

1 (2009) 15 SCC 705

¶65

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶66

¶67

of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc.— K.

¶68

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶69

¶70

Ramadas Shenoy v. Town Municipal Council, Udipi² , G.N. Khajuria (Dr.) v. DDA³ , M.I. Builders (P) Ltd. v. Radhey Shyam Sahu⁴ , Friends Colony Development Committee v. State of Orissa⁵ , M.C. Mehta v. Union of India⁶ and S.N. Chandrashekar v. State of Karnataka⁷ .

¶71

75. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”

¶72

The above observations aptly apply to the instant cases.

¶73

The 5^th respondent, on behalf of 2^nd respondent, filed

¶74

W.V.M.P.No.1473 of 2017 and contended that the petitioner and 4^th

¶75

2 (1974) 2SCC 506

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3 (1995) 5 SCC 762

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4 (1996) 6 SCC 464

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5 (2004) 8 SCC 733

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6 (2006) 3 SCC 399

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7 (2006) 3 SCC 208

¶81

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

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respondent were using the Court to satisfy their vengeance against each other though the 2^nd respondent was taking steps against the deviations and unauthorised constructions made by both of them. As shown above, this is clearly not the case.

¶84

She further stated that 4^th respondent had obtained permission on 26-08-2016 for construction of 3^rd and 4^th floors over existing G+2 floors which were already constructed pursuant to permission granted in 1978. While permission may have been obtained by stating thus, in fact 4^th respondent had removed the old structure, excavated a cellar without permission and erected afresh G+4 floors. He did not apply for G+ 2 floors afresh after getting the earlier structure demolished and is acting as if he only built on existing structure and had not built a totally new structure of all floors.

¶85

Though 5^th respondent stated that on representation dt.2502-2015 being received, the 2^nd respondent stopped the work, the fact remains that 3^rd and 4^th floors were erected by 4^th respondent subsequent thereto and respondent Nos.2 and 5 did nothing to stop it. In my opinion, both respondents 4 and 5 have filed false affidavits and tried to mislead the Court.

¶86

The 5^th respondent mentioned that 4^th respondent filed W.P.No.4581 of 2017 against the 2^nd respondent and obtained interim order not to demolish the constructions made by him in W.P.M.P.No.5530 of 2017 on 10-02-2017.

¶87

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶88

¶89

But in that Writ Petition, admittedly, the 4^th respondent deliberately did not implead the Writ Petitioner who has filed W.P.31004 of 2016 and CC.No.2124 of 2016. This is an act of fraud on his part. Therefore any order passed therein does not bind the petitioner.

¶90

Between 19-09-2016, when this Court in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016 directed the 2^nd respondent to stop construction, and 10-02-2017, the 5^th respondent/2^nd respondent not only did not stop construction as directed, but also did not bring it to the notice of the learned Judge who heard W.P.No.4581 of 2017 on 10-02-2017 about the order passed by this Court on 19-09-2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016 or even about the filing of the said Writ petition. This further corroborates the collusion between 4^th respondent and respondent Nos.2 and 5.

¶91

Such an order obtained by collusion between the said parties is null and void and has no legal effect in view of Section 44 of the Evidence Act, 1872 and there is no need to challenge it separately. ( Gram Panchayat of village Naulakha Vs. Ujagar Singh⁸ ) .

¶92

Therefore the existence of such an interim order in W.P.M.P.No.5530 of 2017 in W.P.No.4581 of 2017 on 10-02-2017

¶93

8 (2000) 7 SCC 543

¶94

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶95

¶96

does not come in the way of petitioner being granted relief in this writ Petition.

¶97

Accordingly, W.V.M.P.No.4714 of 2016 and

¶98

W.V.M.P.No.1473 of 2017 are both dismissed.

¶99

C.C.No.2124 of 2016

¶100

C.C.No.2124 of 2016 was filed by the petitioner to punish the 5^th respondent in W.P.No.31004 of 2016/W.P.No.1123 of 2017 for violation of the order dt.19-09-2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016.

¶101

The Commissioner of Guntur Municipal Corporation (1^st respondent in the Contempt Case) filed a counter stating that the 2^nd respondent in the Contempt Case/4^th respondent in the W.P.No.31004 of 2016 obtained permission on 26-08-2016 for construction of 3^rd and 4^th floors over existing G+2 floors from the Corporation and denied that there was any willful disobedience of the order passed by this Court. She pleaded that the petitioner was aware of the said permission and yet filed the Writ Petition suppressing the fact that 4^th respondent had permission to make construction and therefore she cannot be punished for contempt. No material is placed by her to show that petitioner was aware of the grant of permission by the time the said W.P was filed.

¶102

I had already pointed out that it is impossible to excavate a cellar underneath an existing G+2 floor building and that the 4^th

¶103

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

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respondent had excavated a cellar and built afresh G+4 floors + pent house. He had not merely constructed 3^rd and 4^th floors on an existing old building of G+ 2 floors as is pleaded by respondents. In any event it is not disputed that pent house was built and the cellar were excavated without any permission.

¶106

The Commissioner has no answer to the question why she had not even issued a notice for the said constructions between 19-09-2016 and 10-02-2017 (when the 4^th respondent filed W.P.No.4581 of 2017 and obtained interim order suppressing the existence of interim order dt.19-09-2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016). Thus the conduct of the Commissioner of the Guntur Municipal Corporation is not bona fide . I have already held that she colluded with 4^th respondent in the W.Ps/2^nd respondent in the CC.

¶107

The learned counsel for 2^nd respondent in the Contempt Case/4^th respondent in the Writ Petitions adopted the said contentions of the Commissioner and the stand already taken in the W.V.M.P.No.4714 of 2016 filed by him in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016.

¶108

I have already dealt with the same while rejecting W.V.M.P.No.4714 of 2016. I have also held that there is collusion between both the respondents and that both of them have filed false affidavits and tried to mislead the Court.

¶109

MSR,J

¶110

¶111

W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶112

For the aforesaid reasons, I hold that both the respondents in the Contempt Case have willfully and deliberately disobeyed the order dt.19-09-2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016 and they have also filed false affidavits in the Court.

¶113

W.P.No.1123 of 2017

¶114

After coming to know of the permission granted on 2608-2016 by 2^nd respondent to 4^th respondent to erect 3^rd and 4^th floors in the premises of the 4^th respondent, petitioner filed W.P.No.1123 of 2017 to question the same.

¶115

He reiterated the allegations made by him in W.P.No.31004 of 2016 and contended that he had obtained an order on 19-09-2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016 against the 2^nd respondent to stop further construction by 4^th respondent and violating the said order, the 4^th respondent with the active collusion of respondent Nos.2 and 5, proceeded to make constructions of 4^th floor as well as pent house and he had filed C.C.No.2124 of 2016 against them.

¶116

He pointed out that the impugned building permission indicates that 4^th respondent applied for building permission on 29-042016, but this is false because no such averment was made in the counter affidavit filed by 4^th respondent in the W.P.No.31004 of 2016

¶117

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

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and that reliance had been placed by 4^th respondent therein only on order dt.28-06-2016 therein.

¶120

He further pointed out that 4^th respondent even completed 6^th floor slab and the building stands 66 ft. height (20.10 mts) and it amounts to a high-rise building as defined in Rule 2(f) of the A.P. Building Rules, 2012 and that special norms specified in Rule 7 require to be followed. In particular, he contended that for such a high-rise building, the minimum size of plot must be 2000 sq. mts. while the 4^th respondent’s plot is only 586.94 sq. mts. as per the building permission. Therefore the very grant of permission for a high-rise building in such a small plot is contrary to law and invalid.

¶121

He contended that the building height was wrongly shown as 11.75 mts purposefully by 2^nd respondent to help 4^th respondent even though it comprises 6 floors and would be more than 60 feet.

¶122

He also stated that for a 6 floor building of height 66 feet, set back on all sides should be 7 mts equal to 22.96 ft but as per the permit granted on 26-08-2016 to 4^th respondent by 2^nd respondent, set backs shown are 3.2 mts (front), 3.5 mts (rear), 3.51 mts (side 1) and 3.49 mts (side 2) and this violates Rule 7(x) of the A.P. Building Rules, 2012.

¶123

The matter was listed before this Court on 02-03-2017, 24-03-2017, 03-04-2017, 04-04-2017 along with W.P.No.31004 of

¶124

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶125

¶126

2016 and though the 4^th respondent had ample time of about a month to file counter-affidavit, he has not chosen to file any counteraffidavit. Therefore the allegations made by petitioner are deemed to be admitted by him.

¶127

The respondent Nos.2 and 5 filed a counter stating that the 4^th respondent applied for regularization of the building constructed by him under the Building Penalization Scheme introduced by the Government Vide G.O.Ms.No.128 MA & UD dt.22.5.2015 and obtained regularization orders through online proceedings dt.27-09-2016 in BPS/GUN/MO/21/6730515 subject to the condition that “ No field inspection is done by any authority. This proceeding is issued purely on the basis of information furnished by the applicant. Hence any future discovery of any wrong information, the applicant is liable for penal action besides rendering this proceeding void ”. Copy of the regularization order has not been placed on record by respondents.

¶128

Firstly the Building Penalization Scheme introduced by the Government Vide G.O.Ms.No.128 MA & UD dt.22.5.2015 (called the “A.P. Regulation and Penalization of unauthorizedly constructed buildings and buildings constructed in deviation of the sanctioned plan Rules, 2015”) applied only for constructions made between 1.1.1985 and 31.12.2014. Building applications were to be made within 2 months from 27.5.2015. It is not the case of respondent no.s2/5 that 4^th respondent made application for regularization within

¶129

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶130

¶131

that time. It therefore does not apply to brand new construction made in 2016 by 4^th respondent.

¶132

The respondent no.2/5 have not even stated when the 4^th respondent applied for the regularization of the construction and have deliberately suppressed the same with a view to help 4^th respondent.

¶133

Secondly, Clause 11 of the G.O.Ms No.128 mandated an inspection by competent authority before granting regularization. So the order of regularization granted to 4^th respondent even without inspection is contrary to the G.O. and is therefore illegal.

¶134

Thirdly, in counter affidavits filed by respondent no.s 2/5 in W.P.31004/2016 and in the CC.No.2124 of 2016, there is no mention of this regularization order. It shows that it was created only after the filing of this W.P. and was in fact not issued on 27.9.2016.

¶135

This shows the lengths to which the respondent no.s2/5 would go to help the 4^th respondent.

¶136

In Friends Colony Development Committee ( 5

¶137

supra) , the Supreme court held:

¶138

“25. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less

¶139

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶140

¶141

than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum.”

¶142

In my opinion, in the present case, since the excavation of cellar, construction of G +2 floors afresh by 4^th respondent is totally without permission, there is no question of condoning the same at all.

¶143

I therefore hold that the said regularization order is clearly issued in collusion with 4^th respondent and is contrary to law and invalid.

¶144

Though reference is made to a report dt.16-04-2016 and notices dt.22-04-2016 and 02-05-2016 in the counter by respondent No.5, copies of the same have not been filed. In any event these have no bearing on the validity of the permission granted on 26-08-2016 to 4^th respondent by 2^nd respondent.

¶145

The contention in para-14 of the counter that 2^nd respondent, having obstructed the construction of building over 4^th floor, the question of the applicability of High-Rise Building Rules will not arise and that 4^th respondent had applied for online permission for a building of height below 15 mts, is not tenable, because admittedly there was no inspection done by the officials of 2^nd respondent of the height of the building actually erected by 4^th respondent. Without determining the height of the building, it is not open to 2^nd respondent to say that the said Rules do not apply.

¶146

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶147

¶148

In para-22, the 2^nd respondent stated that in the counter that the construction permission granted to 4th respondent was revoked on 03-02-2017 after noticing several deviations being made by 4^th respondent and on account of misrepresentation of facts by him. The following deviations were admittedly noticed according to 2^nd respondent:

¶149

“a) 4^th respondent did not produce NOC from Director General of Fire Services Department as per A.P. Building Rules, 2012 and G.O.Ms.No.154 MA & UD Department dt.13-03-2007;

¶150

b) In the approved plan, the existing cellar floor details was not shown;

¶151

(c) the proposed parking area is 342.72 sq. mts. as against required parking of 354.2 sq. mts;

¶152

d) the site affected under widening of 60 feet wide Master Plan road was not handed over to the Corporation through gift deed;

¶153

e) 10% of the total built-up area was not mortgaged in favour of the Corporation.”

¶154

In view of the reason given now that 4^th respondent did

¶155

not get NOC from the Fire Services department, the petitioner’s allegation stands proved. No material is placed by 4^th respondent to refute any of the other allegations either.

¶156

The revocation order dt.3.2.2017 of respondent No.2/5 is is a highly belated action and does not in any way absolve respondent

¶157

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶158

¶159

No.5 from wrong doing in relation to the activities of the 4^th respondent in making illegal constructions in his premises.

¶160

Having regard to the above circumstances, since the Commissioner, Guntur Municipal Corporation and the 4^th respondent have been found to have colluded together, filed false affidavits to mislead the Court, in the interest of justice, the following order is passed:

¶161

a) W.P.No.31004 of 2016, C.C.No.2124 of 2016 and W.P.No.1123 of 2017 are allowed;

¶162

b) Order in Roc.No.5005/2016/G2 dt.28-06-2016 of the Commissioner, Guntur Municipal Corporation issued on behalf of the said Corporation is set aside as collusive and malafide;

¶163

c) Building Permission No.1021/0890/B/GNTC/KOT/2016 dt.26-08-2016 issued by Guntur Municipal Corporation to 4^th respondent is declared illegal, without jurisdiction, fraudulent, collusive and violative of the A.P. Building Rules, 2012;

¶164

d) Order of Regularisation of the structure of the 4^th respondent in NO/BPS/GUN/MO/21/6730515 dt.27-092016 of 2^nd respondent is declared to be illegal, arbitrary, fraudulent and contrary to G.O.Ms.No.128 MA & UD Department dt.22-05-2015 and is set aside;

¶165

e) The order in Ref.No.RVK/1021/2016/0006 dt.03-02-2017 passed by 2^nd respondent revoking the approved plan issued vide File No.1021/0890/B/GNTC/KOT/2016

¶166

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶167

¶168

Permit No. 1021/0890/B/GNTC/KOT/2016 dt.26-08-2016 is upheld;

¶169

f) The interim order dt.10-02-2017 in W.P.M.P.No.5530 of 2017 in W.P.No.4581 of 2017 is declared to be collusive and obtained by playing fraud on the Court, and hence, of no effect;

¶170

g) Consequently, the respondent 1 is permitted to demolish the constructions made by 4^th respondent in premises Door No.12-25-180, Kothapet, Guntur within four (04) weeks from today;

¶171

h) The 4^th respondent shall not alienate or encumber or put to use for any purpose the building illegally constructed by him in the above premises till it is demolished by the respondent no.1;

¶172

i) The SHO of the Police station within whose jurisdiction the Door No.12-25-180, Kothapet, Guntur is located shall provide all assistance to the petitioner and ensure that 4^th respondent does not prevent it’s demolition;

¶173

j) The Commissioner, Guntur Municipal Corporation (Ms. Selvarajan Nagalakshmi) as well as the 4^th respondent are held guilty of filing false affidavits in W.P.No.31004 of 2016 and C.C.No.2124 of 2016 and of willfully disobeying the order dt.19-09-2016 in W.P.M.P.No.38372 of 2016 in W.P.No.31004 of 2016; the Commissioner, Guntur Municipal Corporation is sentenced to suffer one month Simple Imprisonment and 4^th respondent is sentenced to 2 months Simple Imprisonment; they shall pay fine of Rs.2,000/- (Rupees Two Thousand only) within four weeks from today and in default, to suffer further Simple Imprisonment of one month;

¶174

MSR,J W.V.M.P.Nos.4714 of 2016 & 1473 of 2017 IN/AND W.P.No.31004 of 2016, W.P.No.1123 of 2017 AND C.C.No.2124 of 2016

¶175

¶176

k) The petitioner shall deposit subsistence allowance @ Rs.300/- per day for respondent Nos.1 and 2 in the Contempt Case No.2124 of 2016 within four weeks from today;

¶177

l) The sentence of imprisonment imposed on respondent Nos.1 and 2 in the C.C. No.2124 of 2016 is suspended for a period of six weeks from today;

¶178

m) The respondent Nos.2 and 4 in W.P.No.31004 of 2016 and W.P.No.1123 of 2017 shall each pay to petitioner costs of Rs.20,000/- each.

¶179

As a sequel, the miscellaneous petitions, if any pending in these

¶180

Writ Petitions, shall stand closed.

¶181

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date:25-04-2017 kvrm

Dr.Dhulipalla Murali, v. The State of Andhra Pradesh

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Dr.Dhulipalla Murali, v. The State of Andhra Pradesh

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