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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Subba Reddy Satti, J.
Kota Alivelu Manga - Appellant
Versus
The State of Andhra Pradesh - Respondent
Writ Petition No. 7187 of 2024
Decided On : 26-03-2024
Demolition Threat - Building Construction - A.P. Municipal Corporation Act, 1955, Section 452(1), 452(2), 461(1), 461(2), 464(4) - The court discussed the procedure mandated under the Act, the power of the Commissioner to regularize violations, and the implications of the petitioner's false statements. The court found that the authorities followed the procedure mandated under the Act and dismissed the writ petition.
Fact of the Case:
The petitioner sought a writ of mandamus to declare the action of the respondents in threatening to demolish a building as arbitrary, illegal, and unjust. The petitioner had constructed a building with deviations and an additional floor, seeking regularization under the BPS Scheme.
Finding of the Court:
The court found that the authorities followed the procedure mandated under the A.P. Municipal Corporation Act, 1955, and that the petitioner's false statements undermined their case. The court dismissed the writ petition, stating that no merit was found.
Issues: (1) Whether the respondents 2 and 3 followed the procedure mandated under the Act qua provisional order and confirmation proceedings? (2) Whether a separate show cause notice is required after confirmation orders dated 07.06.2022?
Ratio Decidendi: The court held that the authorities followed the procedure mandated under the Act and that the petitioner's false statements undermined their case. The court also emphasized the limitations of the Commissioner's power to regularize violations.
Final Decision: The Writ Petition is dismissed. No costs.
ORDER
Subba Reddy Satti, J. - The Writ Petition is filed seeking the following relief:
'. to issue an appropriate Writ, direction or order, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents 2 and 3 in threatening to demolish the building consisting of Stilt + Ground Floor + 2 Upper Floors constructed vide building permission No.1073/1961/B/VMC/VID/2021 situated in D.No.75-11-159/1, Balabaskar Nagar, Punnami Ghat, Bhavanipuram, NTR District without any prior notice or opportunity and in spite of representation dated 15.03.2024 and 08.06.2022 submitted to the respondent No.2 for regularization and also in spite of penalty amount of Rs.6,00,000/- paid on 01.03.2023 in the complaint filed by the 2nd respondent in C.C.No.582 of 2022 on the file of Court of the VII Addl. Metropolitan Magistrate (Municipal Court), Vijayawada towards fine/compensation pertaining to notices u/s.452(1), 452(2), 461(1), 461(2), 464(4) of the A.P. Municipal Corporation Act, 1955, as arbitrary, illegal, unjust and violative of Articles 14, 21, 19 and 300A of the Constitution of India besides in violation of principles of natural justice and in breach of statutory provisions of law and building bye laws and rules in the interest of justice...'
2. a) Petitioner was granted permission to construct Stilt+Ground+2 upper floors vide building permit order No.1073/1961/B/VMC/VID/2021 dated 16.10.2021 in an area admeasuring 195.13 square meters, RS/TS No.6, Premises No.75-11-159/1, Vidyadharapuram, Vijayawada.
((b) Provisional Order vide Notice No.389/1073/VMC/UC/2022 dated 17.03.2022 was issued to petitioner by the Town Planning Officer under Section 452(1) & 461(1) of the Municipal Corporation Act, 1955 (for short 'the Act') and Section 115(1) & (2) and 116 (1) of the Andhra Pradesh Capital Region Development Authority Act, 2014 (for short 'CRDA Act'), pointing out deviations/violation regarding construction. Deviations pointed out are setbacks qua the permission and construction. Another Provisional Order vide Notice No.681/1073/VMC/UC/2022 dated 21.05.2022 was issued to petitioner under Section 452(1) & 461(1) R/W 428, 429 of the Act and Section 115(1) & (2) and 116 (1) R/W 108 of the CRDA Act, pointing out deviations/violation regarding construction at Door No.75-11-159/1. In the said provisional order, it was specifically pointed out constructing residential building Third Floor on the existing Ground+2 Floor and directed the petitioner to submit explanation within seven days.
(c) No explanation was submitted by the petitioner. Hence, Confirmation Order vide Notice No.389/1073/VMC/UC/2022 dated 07.06.2022 was issued under Section 452(2) & 461(2) of the Act and Section 115(3) of the CRDA Act. Another Confirmation Order vide Notice No.681/1073/VMC/UC/2022 dated 21.05.2022 was issued to petitioner under Section 452(2) & 461(2) R/W 428, 429 of the Act and Section 115(3) R/W 108 of the CRDA Act.
(d) In the confirmation orders, the petitioner was directed to bring down the construction into the rule frame within seven days, lest action will be initiated in accordance with law. Petitioner received the confirmation orders on 08.06.2022.
(e) The petitioner, as per Ex.P5, made representation admitting construction of building with deviation and also additional floor and requested the authority to regularize the building under BPS Scheme. Pursuant to provisional order dated 21.05.2022 and confirmation order dated 07.06.2022 (construction of additional floor) upon by considering the explanation of petitioner dated 08.06.2022 an order was passed vide Notice No.681/1073/VMC/UC/2022 dated 19.11.2022 under Section 452(2) & 461(4) of the Act.
(f) A criminal case vide C.C.No.582 of 2022 on the file of III Metropolitan Magistrate, Vijayawada was filed under Section 200 of Cr.P.C and Section 461 of the Act. After trial, the petitioner herein was sentenced to pay a fine of Rs.6,00,000/- i.e. not less than 50% of value of illegal construction,
The judgment emphasizes the importance of following the procedure mandated under the A.P. Municipal Corporation Act, 1955 and highlights the limitations of the Commissioner's power to regularize viol....
Statutory provisions governing unauthorized constructions must be adhered to by municipal authorities when issuing orders or taking action against such constructions.
The court mandated the Municipality to expeditiously process the pending regularization application for unauthorized construction, emphasizing compliance with statutory timelines and precedents set b....
The court ruled that demolition orders must follow due process and should only be executed if significant public interest is at stake, emphasizing the right to appeal.
The main legal point established in the judgment is that unauthorized construction exceeding the permissible limit cannot be regularized under the Act of 2016.
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