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2022 Supreme(AP) 344
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Ravi Nath Tilhari, J.
Dhanekula Harish – Appellant
Versus
The State of Andhra Pradesh – Respondent
Writ Petition No.35382 of 2022
Decided On : 04-11-2022
Advocate Appeared:
For the Appellant : A K Kishore Reddy
Headnote:
Andhra Pradesh Municipalities Act, 1965 – Sections 217 (1)&(2), 218 (1)&(2), 217, 218, 228 – Action of respondent Nos.2 to 4 is being challenged being interference in raising of construction by petitioner after obtaining building permission, without following due process of law – Held, It is only owner who has right to show cause and submit reply under Section 228 use of different expressions ‘owner’ and ‘builder’ in Section 228 (1) is also indicative of fact that ‘builder’ is not covered in expression ‘owner’, unless builder & owner are one and same person – Notice/provisional order was sent to owner as well and it is for the owner to show cause – It is not known to the petitioners if owner has submitted the reply or not – Even if provisional order/notice is sent to petitioner as well, that would not confer any right in them to show cause in view of Section 217 and 228 (2)&(3) though they are bound by such notice to stop the construction work under sub-section (1) of Section 228 of Act – In view of provisional order/notice, it cannot be said that action of authorities of Municipality, in stopping construction work is without any authority of law or without following any due process – Writ petition dismissed.
JUDGMENT :
1. Heard Sri V.Raja, learned counsel representing Sri A.K.Kishore Reddy, learned counsel for the petitioner, learned Government Pleader for Municipal Administration for the respondent No.1 and Sri G.Naresh Kumar, learned counsel, representing Sri M.Manohar Reddy, learned Standing Counsel for the respondent Nos.2 to 4.
2. The prayer in the writ petition is as under:-
“It is therefore prayed that this Hon’ble Court may be pleased to issue a Writ or order or direction more particularly one in the nature of WRIT OF MANDMUS declaring the action of the Respondents more particularly Respondent Nos.2 to 4 in interfering with our peaceful possession and enjoyment in construction activities that are being carried out in D.No.18-345 (old D.No.19-127), Yenamalakuduru, YSR Tadigadapa Municipality, Krishna district and further threatening to demolish the existing constructions without issuing any notice as illegal, arbitrary, unconstitutional and consequently direct the Respondents particularly Respondent Nos.2 to 4 not to interfere with the building construction activities and not to demolition any existing structures without following due process of law and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”
3. Thus the action of the respondent Nos.2 to 4 is being challenged being interference in raising of the construction by the petitioner after obtaining building permission, without following due process of law.
4. Sri V.Raja, learned counsel representing Sri A.K.Kishore Reddy, learned counsel for the petitioners submits that the petitioners are the builders and they have entered into agreement with the owner for construction of the building. The building permit order dated 24.02.2022 was granted in the name of the owner as also the petitioner builders, but the respondent Nos.2 to 4 are interfering in the raising of the construction without following due process of law.
5. Sri G.Naresh Kumar, learned counsel representing the respondent Nos.2 to 4, on the basis of written instructions from the Commissioner of the concerned Municipality submits that a notice bearing UC.No:06/2022, dated 19.09.2022 under the provisions of Sections 217 (1)&(2) and 218 (1)&(2) of the Andhra Pradesh Municipalities Act, 1965 applicable to the concerned Municipality was issued to the owner Smt. Gali Bindhu Madhavi as also to the petitioners vide registered post dated 21.09.2022, directing them to stop further construction and to show sufficient cause as to why the deviation/violation and unauthorized construction should not be removed/altered or pulled down within the specified time from the date of receipt of the notice. The said notice specifically mentioned about the deviations/violations identified. However, no response was filed before the Commissioner of the Municipality.
6. The copy of the notice through registered post along with the copy of the postal receipt has been placed before this Court and a copy thereof has been given to the learned counsel for the petitioners.
7. The petitioners are not the owners, but the builders and their case is that they have entered into an agreement for construction of the building with the owner. The petitioners are claiming opportunity of hearing by issuance of notice and also pursuant to the notice dated 19.09.2022 when it was so informed as aforesaid.
8. It is relevant to reproduce Sections 217 and 218 of the Andhra Pradesh Municipalities Act, 1965 as under:-
“217. Power to require alteration of work:-
(1) If the Commissioner finds that the work—
(a) is otherwise than in accordance with the plans or specifications which have been approved; or
(b) contravenes any of the provisions of this Act or any bye-law, rule, order or declaration made thereunder, he may, by notice, require the owner of the building within a period stated either—
(i) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with
