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2000 Supreme(AP) 257

Andhra Pradesh High Court
Judges : B.S.A.SWAMY
T.S.Devakaranamma and another - Appellant
Versus
State OF A.P. - Respondent
W.P.No:16179/99
Decided On : 04-03-00
Advocates Appeared :
Mr.C.Hanumantha Rao, Mr.K.Venugopala Reddy

Headnote:HYDERABAD MUNICIPAL CORPORATION ACT,Secs.14,146, 147,428,438 and 440 - Bye-law No.6(3) - Application seeking approval of building plan proposed to be constructed - Commencement of construction by invoking deeming clause - No application can be filed without challan in proof of payment of building fee, if any such application is filed it is not valid in law and is liable to be rejected - u/S.440 notice has to be given to start construction and have to wait for 7 days before commencing the construction after giving notice - Admittedly in this case no such notice was given to Municipal Corporation before making constructions that have been made is in clear violation of Act and Rules - Petitioners cannot take shelter under deeming provision without complying with provisions of Sec.440 coupled with Bye-law No.6 (3).

       Municipal Corporation can acquire any immovable property for any public purpose by paying compensation through negotiations and in event of failure of negotiations, Corporation has to initiate proceedings under land acquisition Act as per Sec.147 - Corporation cannot high handedly take possession of land even for public purpose without following prescribed procedure under Sec.146 & 147.

B. S. A. SWAMY, J.

( 1 ) THE subject-matter of these Writ Petitions being the same, they can be disposed of by a Common Order.

( 2 ) THE first Writ Petition i. e. W. P. No. 16179/99 is filed questioning the Notice No. 10, dt. 16-6-1999 and endorsement G8/13299/99, dt. 21-6-1999 wherein the request of the petitioners for construction of a pucca building in an extent of 1020 sq. yards in Sy. No. 97/2 in premises bearing No. 2-9-456 of Vaddepally village, Hanmakonda Mandal, Warangal District was negatived on the ground that the proposed construction is affecting the Master Plan of the year 1971 wherein a road was proposed to be laid over the land in question. It is further stated in the above notice that the unauthorised constructions that are proposed to be made by the petitioners affecting the Master Plan will be viewed seriously and the required proceedings under law will be initiated for prevention and removal of structure (not covered under the decree) which will affect the Master Plan. It is the contention of the petitioners that the respondents cannot high-handedly take possession of their land without following the due procedure of law i. e. , putting the provisions of Land Acquisition Act in motion. Subsequently, the Vice-Chairman, Kakatiya Urban Development Authority, Warangal issued Show Cause Notice No. C1/808/pp, dt. 7-9-1999 to show cause as to why the construction made by the petitioners over the land in question unauthorisedly shall not be demolished. Having submitted the explanation, apprehending that the Vice-Chairman, Kakatiya Urban Development Authority, Warangal may pass final orders directing demolition of the construction, W. P. No. 19616/99 is filed by contending that as the respondents failed to pass any orders within the time stipulated, it is deemed that the building plan was approved by the respondents and they cannot resort to any demolition on the ground that it is an unauthorised construction.

( 3 ) IT should be noticed that while the 1st petitioner is a retired Teacher, her husband i. e. , 2nd petitioner is an Ex-Military Personnel and they are expected to know the law of the land and they cannot plead ignorance of law. Now, let me examine to what extent they have complied with the legal provisions of the Municipal Corporation Act and the Rules made thereunder before commencement of construction by invoking the deeming clause.

( 4 ) THE factual background that led to the filing of the two Writ Petitions is that the petitioners having purchased the land in question as an agricultural site in the year 1981 filed an application under Section 428 of the Hyderabad Municipal Corporation Act which is made applicable to Warangal Municipal Corporation also, seeking approval of the building plan proposed to be constructed by them and having not received any reply from the respondents, erected a tin shed and the same was given municipal No. 2-9-456, and assessed to tax and they are paying the taxes regularly. On 10-3-1986, the Municipal Corporation served a notice of demolition by contending that the construction made by the 1st petitioner was unauthorised. Then she filed O. S. No. 256/86 on the file of II- Additional District Munsif, Warangal seeking permanent injunction restraining the respondents and their servants from demolishing the construction made by her on the suit schedule land. Though the respondents filed their written statement opposing the relief sought for by her, for the reasons best known to the counsel appearing for the Municipal Corporation of Warangal, he did not chose to adduce any evidence either oral or documentary in support of their contention, which normally happens in such type of cases as is noticed by this Court for over a number of years. The learned Munsif, relying on the oral testimony of the 1st petitioner that she filed the application with the required fee of Rs. 415. 00 for regularisation of the compound wall and another amount of Rs. 540. 00 for regularisation of the suit












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