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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Ravi Nath Tilhari, J.
Lingamaneni Venkat Rao and another - Petitioners
Versus
State of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration Department and others - Respondents
Writ Petition No. 29839 of 2022
Decided On : 14-09-2022
Vijayawada Municipal Corporation - Unauthorized Construction - Regularization - Section 455AA of Greater Hyderabad Municipal Corporation Act - Applicability - Petitioners' Right to Hearing - Principles of Natural Justice - Exceptions.
Fact of the Case:
Petitioners, as purchasers of flats in a building, challenged the confirmation order passed by the Vijayawada Municipal Corporation (VMC) for the removal of unauthorized constructions. The petitioners claimed that they were not served with any show cause notice or given an opportunity of hearing before the order was passed. The VMC contended that the petitioners were not entitled to any notice as they purchased the flats during the pendency of proceedings against the unauthorized construction.
Finding of the Court:
The court held that the petitioners were not entitled to a hearing as the owners of the building had already been given an opportunity of hearing and had admitted to the unauthorized construction. The court further held that the petitioners could not seek regularization of the unauthorized construction under Section 455AA of the Greater Hyderabad Municipal Corporation Act, as the construction was not covered under the said provision.
Issues: 1. Whether the petitioners were entitled to a hearing before the confirmation order was passed. 2. Whether the petitioners could seek regularization of the unauthorized construction under Section 455AA of the Greater Hyderabad Municipal Corporation Act.
Ratio Decidendi: 1. The principles of natural justice have exceptions, one of which is where on the admitted or undisputed facts only one conclusion is possible. In such cases, the court may not issue a writ to compel the observance of natural justice, as it would be an exercise in futility. 2. Section 455AA of the Greater Hyderabad Municipal Corporation Act provides for the regularization of unauthorized constructions or deviations of sanctioned plans as a one-time measure. However, the construction in question was not covered under this provision as it was not completed before the specified date.
Final Decision: The writ petition was dismissed.
JUDGMENT :
Heard Sri V. V. Satish, learned counsel for the petitioner and Sri G. Naresh Kumar, learned counsel, representing Sri M. Manohar Reddy, learned standing counsel for respondent No.2.
2. This writ petition has been filed under Article 226 of the Constitution of India for the following reliefs:
3. The petitioners are challenging the impugned confirmation order dated 30.08.2022 passed by the 2nd respondent-Vijayawada Municipal Corporation, represented by its Commissioner, by which the notice dated 24.08.2022 given to the owners of the building in question, directing them to show cause as to why the unauthorized constructions commenced at the said building shall not be removed/altered or pulled down within a specified period, failing which further action for removal shall be taken up departmentally, has been confirmed.
4. The petitioners claim to be the bona fide purchasers from the owners through their General Power of Attorney (in short ‘GPA’) Holder. The 1st petitioner purchased Flat No.1 in 4th floor on 31.12.2021 and the 2nd petitioner purchased Flat No.2 in 4th floor on 07.07.2022.
5. Learned counsel for the petitioners submits that the petitioners are the absolute owners and possessors of the flats in the building, mentioned above, by virtue of the sale deeds from the owners, but the petitioners were not served with any show cause notice/the provisional order and any opportunity of hearing was not afforded to them, before passing the order of confirmation.
6. Learned counsel for the petitioners next submitted that the notice/provisional order dated 24.08.2022 was issued to the owners under Section 452 (1) and 461 of Andhra Pradesh Municipal Corporation Act 1955 (in short ‘APMC Act 1955’) and the order of confirmation was also passed under the same sections of the same Act, whereas APMC Act 1955 does not apply to the Vijayawada Municipal Corporation (in short ‘VMC’) in view of Section 1 (2) of APMC Act 1955 and for VMC there is a separate Act, namely, Vijayawada Municipal Corporation Act 1981. Consequently, the notice/provisional order as also the confirmation order are without jurisdiction.
7. Sri G. Naresh Kumar, learned counsel, representing Sri M. Manohar Reddy, learned standing counsel for respondent No.2, submits that the notice dated 24.08.2022 was issued to the owners of the building who were raising construction without any building permit, unauthorizedly, and after affording opportunity of hearing to them and after hearing their GPA Holder the order of confirmation was passed, perfectly in accordance with law. He further submits that the petitioners are not entitled for any notice and from the notice dated 24.08.2022 itself it is evident that they purchased the flats in the building in question during the proceedings being taken with respect to ‘such’ unauthorized construction.
8. Sri G. Naresh Kumar further submits that in the exercise of powers conferred under Section 101 of the Andhra Pradesh Reorganization Act 2014 (Central Act 6 of 2014), the State Government issued G.O.Ms.No.32, dated 23.02.2015, (in short “the Order dated 23.02.2015”) and as per para-2 of the said Government Order, Section 455-AA of the Greater Hyderabad Municipal Corporation Act, 1955 has been extended to Vijayawada Municipal Corporation as well. He further submits that the Vijayawada Municipal Corporation Act 1981 itself applies the Hyderabad Municipal Corporation Act for the Vijayawada Municipal Corporation and consequently, there is no illegality in the order of confirmation.
9. I h
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