Municipal corporation Act - violation of Building rules - permission obtained for residential purpose - constructed a Hospital instead of residential house - approval of unauthorised constructions while writ petition is pending - Their lordships order for demolition if the building is not made in consonance with the building permission with in one month =
"........ The building permission was granted in BA.No.1653/2005,
dt.9-9-2005. The said construction was commenced and completed in deviation to
the approval given and the said owner of the property unauthorisedly constructed
cellar, ground, mezzanine floor & 3 upper floors and a part 4th floor with AC
sheet roof building with deviations as detailed below. The owner of the said
property also deviated in use of the building and unauthorisedly converted the
usage from residential to hospital.=
2014 (March. Part) judis.nic.in/judis_andhra/filename=3391
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.12214 OF 2008
10-03-2014
N.Srinivas and another...Petitioners
The Government of Andhra Pradesh, Rep. by its Secretary H.M.A & U.D.A
Department, Secretariat Building, Hyderabad and others.. Respondents
Counsel for the Petitioner: Sri V.S.R.Anjaneyulu
Counsel for the Respondents: G.P.for Municipal Admn. &
Urban Area Development
<Gist :
>Head Note :
?Cases referred
1 AIR 1956 SC 110
2 1981 (1) ALT 46
3 1994 (3) ALT 73 (F.B.)
4 AIR 1991 SC 1453
5 1921 (2) K.B. 716
6 (1995) 5 SCC 762
HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.12214 and 17943 of 2008
In spite of Dr.Thomas Fuller's warning in 1733 saying 'be ye never so
high, the law is above you' and reiterated later by Lord Denning, still some
feel that they can violate law with impunity.
2. These two writ petitions are disposed of by a common order in view of the
common issue involved in them.
FACTS OF THE CASE:
3. The parties are described, for the sake of convenience, as they are
arrayed in W.P.17943 of 2008.
4. One, Smt. M.Madhavi, the 3rd respondent, is the owner of properties
bearing premises bearing Nos.33-25-32, Bellapu Sobhanadri Street, Kasturibaipet,
Vijayawada and premises bearing Nos. 33-18-13, 13A and 14, situated at
C.V.K.Street, Suryaraopet, Vijayawada in her own capacity and as Managing
Director of M/s.Venkateswara Hospitals (P) Ltd. Her husband, the 4th respondent
is an Orthopaedic Surgeon. Her property has two neighbours. One neighbour is a
owner of property, premises bearing door No.33-18-16, situated at C.V.K.Street,
Suryaraopet, Vijayawada (Petitioner in W.P.12214 of 2008) and the other is the
owner of another property, premises bearing door No.33-25-33, situated at
Bellapu Sobhanadri Street, Vijayawada (Petitioner in W.P.17943 of 2008). She
initially obtained sanction for construction of RCC roof slab for ground + three
floors in premises bearing door Nos.33-25-32, NTS No.791, Vijayawada through
proceedings of the Vijayawada Municipal Corporation, 2nd respondent, in
B.A.No.1653/2005, dated 09.09.2005. The said sanction plan was for construction
of residential building, but the building was constructed to suit their
convenience to run a hospital. The Petitioner in W.P.12214/2008 got issued a
registered notice on 19.11.2007 to the 2nd respondent to take appropriate
action. It was followed by another notice on 23.11.2007 to the 2nd respondent to
take expeditious action on the subject. The 3rd respondent got issued a reply
dated 01.12.2007 admitting the fact that her hospital is being run in the
building. She filed an application for regularising the deviated portion of the
constructions and no further orders were passed in view of orders in
W.P.M.P.No.1276 of 2008 in W.P.No.1069 of 2008 dated 27-3-
2008. The 2nd respondent filed a detailed report on 16-7-2008 with regard to the
deviations.
5. The 3rd respondent obtained another permission from the second respondent
in B.A.No.1260/2007 dated 19.05.2007 for construction of RCC roof slab for
stilt, ground + four floors for residential building in premises bearing door
No.33-18-14, 13 & 13A. The above petitioner again got issued a notice on
21.01.2008 requesting the 3rd respondent not to proceed with the unauthorised
constructions. The petitioner obtained copies of approved plans and issued
another notice to the 2nd respondent to stop illegal constructions of the 3rd
respondent. When the respondents did not take any action, the W.P.No.12214 of
2000 was filed. The third respondent denied the allegation that the building was
constructed in violation of master plan and zonal regulations. She stated that
her husband, 4th respondent was using the said building to run a nursing home
which is permissible in residential area. Since there were minor deviations to
the sanctioned plan, she applied for regularisation of deviations by paying
requisite fee prescribed by the Government. She denied the allegation of
nuisance and harassment to the petitioner. She further stated that she, along
with Sri Venkateswara Hospitals Private Limited are the joint owners of the
property situated at C.K.Street, Suryaraopet, Vijayawada and she obtained
permission for construction of residential apartments vide B.A.No.1260/2007
dated 19.05.2007. Since the sanctioned plan was not suitable to their needs and
as the 4th respondent is a doctor by profession, she leased out the property
bearing door No.33-18-14, 13, 13A in favour of Sri M.Jeeva Ratnam Naidu who is
none other than her husband and he applied for revised building permission
proposing to construct a sub-cellar, cellar and ground floor + four upper floors
for nursing home. When the application satisfied the conditions under
G.O.Ms.No.678 dated 07.09.2007 and G.O.Ms.No.281 dated 01.04.2008, the building
permission was granted. It is stated that the petitioner in W.P.17943 of 2008
himself had given his house for running a hospital under the name and style of
"Dr.Satish's Endocare" to one doctor Satish Chandra. It is stated that the writ
petition was filed in order to cause wrongful loss to them.
6. It is the case of the petitioner in W.P.17943 of 2008 that the 4th
respondent initially purchased a house in the name of the 3rd respondent in an
extent of about 318 square yards bearing house No.33-18-15. He demolished the
said house and constructed a hospital and was running the same for the last 18
years. He also purchased a house bearing house No.33-18-13 and another house
bearing house No.33-18-13A to the north of the petitioner. Later, the 4th
respondent purchased two other properties to the north of his hospital with a
view to construct a super speciality hospital by demolishing the existing
hospital. The house to the backside of the existing hospital bearing house
No.33-25-32 is adjacent to the house of the petitioner. The petitioner further
stated that in view of construction of hospital on southern side and western
side with five floors, it is impossible for a family to reside as a neighbour.
The patients were throwing used cottons, bandages, etc., and no set backs were
maintained, as a result of which, they lost privacy. It is also stated that
sanctioning of revised plan by the Corporation on 27.10.2008 in the place of old
plan in the name of the 4th respondent, pending writ petition was illegal.
Challenging the same, the petitioner filed W.P.17943 of 2008 and sought a
further direction to demolish the unauthorised structures.
7. The Vijayawada Municipal Corporation, the 2nd respondent filed a counter-
affidavit stating that the 3rd respondent initially obtained permission for
construction of a residential building of stilt, ground and four upper floors,
but committed deviations by constructing cellar floor. When the construction
was going on, she leased out the total property in favour of her husband, 4th
respondent and he, as a lease holder, applied for building permission with
revised proposal for construction of a sub-cellar, cellar, ground and four upper
floors for nursing home duly seeking exemption that can be allowed in terms of
G.O.Ms.No.281 dated 01.04.2008. The revised building permission was granted
vide B.A.No.851/2008 dated 27.10.2008. After obtaining building permission for
construction of stilt, ground + four floors for residential building, he
constructed the building in deviation of the approved plan. The allegation that
the Corporation did not take any action on the construction commenced in
deviation to the approved plan was denied. It is stated that after receiving
complaints, notices under Sections 42(1) and 43(1) of A.P. Urban Areas
Development Act, 1975 read with Section 452 of Greater Hyderabad Municipal
Corporation Act, 1955 (for short, GHMC Act) were issued. On receiving the show
cause notice, the 3rd respondent submitted her explanation stating that due to
the soft nature of the soil, the Structural Engineer and the Architect advised
her to construct a pillar from sufficient depth as well as slab like cellar
floor and stated that it was not intended to use as a cellar floor. It is
further stated that she also assured to fill up the area below the ground floor
with sand and rubbish after completion of the building. She further stated in
her explanation that she did not violate any of the rules and regulations and
requested for dropping action. She also submitted an application requesting for
regularising the deviated portions of the constructions in premises bearing door
No.33-25-32 against which action was initiated. It is further stated by the 2nd
respondent in his counter that they have discretion for taking action for
removal of the deviations but cannot be claimed as a matter of right.
8. This Court, by order dated 16.07.2008 in W.P.M.P.No.15744 of 2008 in
W.P.No.12214 of 2008, after noticing that the 3rd respondent has not entered
appearance in spite of serving a notice, granted interim direction to the second
respondent to depute one of its officers to the premises of the 3rd respondent
and submit a status report indicating the nature of permission accorded to the
4th respondent and if it was accorded, whether it was residential purpose or
commercial purpose.
9. In pursuance of the directions of this Court dated 16.07.2008, the City
Planner, Vijayawada Municipal Corporation, was deputed to inspect the premises
of the owner and he submitted a report which reads as follows:
"........ The building permission was granted in BA.No.1653/2005,
dt.9-9-2005. The said construction was commenced and completed in deviation to
the approval given and the said owner of the property unauthorisedly constructed
cellar, ground, mezzanine floor & 3 upper floors and a part 4th floor with AC
sheet roof building with deviations as detailed below. The owner of the said
property also deviated in use of the building and unauthorisedly converted the
usage from residential to hospital.
Sl.
No.
Description
As per approved plan
As on ground
Remarks
1
Front (E)
5.0 M
3.96 M
1.04 M less
2
Rear (W)
5.0 M
--
5.0 M less
3
Side (N)
2.50 M
0.76
1.74 M less
4
Side (S)
2.50 M
1.12
1.38 M less
5
No. of floors
Ground + 3 floors
Cellar + ground+ Mezzanine + 4 upper floors
Cellar floor and two floors excess
6
Usage
Residential
Hospital
Deviation
Already the respondent Corporation initiated action for the deviations
committed and issued notices vide UC.No.97/05, dt.31-12-05, U.C.Notice No.6/06,
dt.29-4-06, UC.No.20/06, dt.15-5-06 and UC.No.26/06, dt.6-7-06 under the
provisions of Section 42 (1) 43 (1) of AP UDA Act, 1975 read with Section 452 of
HMC Act, 1955.
Subsequently, the said owner of the property submitted applications along
with plans requesting to regularize the deviated constructed portions in terms
of G.O.Ms.No.901, dt.31-12-07 vide BPS application No.1/2008. No action has
been taken on the said application in pursuance of Hon'ble A.P. High Court
orders in WPMP.No.1276/08 in WP.No.1069/08, dt.27-3-08."
10. In respect of the property built by her husband, 4th respondent, it reads
as follows:
".......... As on the date of inspection i.e., on 28-7-2008 the status of the
construction with set back deviations is as follows:-
Sl.
No.
Description
As per approved plan
As on ground
Remarks
1
Front set back (North)
7.04 M
7.50 M
No deviation
2
Rear set back (South)
4.20 M
4.05 M
0.15 M less
3
Side set back (East)
4.00 M / 4.50 M
3.65 M/3.50 M
0.35M/1.00 M less
4
Side set back (West)
4.50 M
3.60 M
0.90 M less
Though, the permission was obtained for construction of apartment building
consisting of stilt floor for parking and ground floor + flour floors,
Smt.M.Madhavi (R-4 in this writ) has constructed sub-cellar floor unauthorisedly
and further proceeded for construction of cellar floor and the work is at slab
level. At present the work was stopped.
Further it is to submit that the Vijayawada Municipal Corporation has
accorded permission to Smt.M.Madhavi (R-4 in this writ) for construction of
residential apartment building consisting of stilt floor for parking, ground
floor + 4 upper floors vide B.A.No.1260/07 dt.19-5-07. But Smt.Madhavi (R-4 in
this writ) has constructed sub-cellar floor unauthorisedly and cellar floor upto
roof level. Since the construction is at parking floor level, the proposed use
of the building cannot be confirmed at the time of this report.
Further any deviation to the approved plan or usage from residential
apartment to other non residential use in future the VMC will initiate action
for revoking the building permit issued in B.A.No.1260/07 dt.19-5-07."
11. The petitioner filed WPMP.No.36133 of 2008 in W.P.17943 of 2008 subsequent
to the sanction of revised permission seeking amendment of the prayer and the
same was ordered on 30.04.2009. This Court, on 06.05.2009 in WPMP.No.23360 of
2008 in W.P.No.17943 of 2008, while granting time to file counter-
affidavit held that any constructions made by respondents 3 and 4 shall be
subject to the result of the writ petition and they shall not claim equities.
Against the said order, the petitioner preferred an appeal vide
W.A.(SR).No.62108 of 2009 with an application vide WAMP.No.1755 of 2009 to
condone the delay of 8 days in filing the writ appeal. The said application was
dismissed by imposing a cost of Rs.10,000/- in view of the statements made in
the affidavit filed in support of the said application, by order dated
09.07.2009. The petitioner did not rest there. He filed Special Leave Petition
(Civil Appeal) No.24823 of 2003 against the said order and the same was
dismissed on 19.10.2009 with an observation that the learned Single Judge would
consider the matter uninfluenced by any observations made by the Division Bench.
12. In WPMP.No.1520 of 2013 in W.P.No.17943 of 2008, dated 15.03.2013, a
Commissioner was appointed for making local inspection and note down the
physical features of the subject building constructed by respondents 3 and 4,
height of the building, construction over and above four upper floors and
details of fire safety measures taken in respect of the building including the
scope for free movement of fire fighting vehicles to reach the building. The
Advocate Commissioner submitted a report dated 30.04.2013 giving details of her
observations and also stating that she was not allowed to go on top of the
building i.e., above the 6th floor by the third respondent. She also observed
that the building was consisting of sub-cellar, Cellar, ground, four floors and
two pent houses on fifth and sixth floors. At the time of her inspection, some
construction work was going on, on top of the building above sixth floor, but
she was not allowed to see and report the exact nature of the work. Ultimately,
she ended her report as follows:
"6. I am constrained to state herein that the commission work started at 10.30
AM and completed at 3.30 PM though it doesn't require such lengthy time because
of the non co-operation of the 3rd respondent, it got delayed. Initially she
participated and left the place after an hour. Thereafter, after three hours
she returned and asked for re-measurement of set backs, height etc. In 4th
floor all the doors are closed and inspite of telling she did not open the
doors. When I wanted to go to the terrace she said that keys are not available.
But, some work is going on the terrace, due to which the 3rd respondent doesn't
want me to note in my report. I was made to suffer in the hot summer even for
obtaining signatures on the proceedings sheet. I was made to wait for 2 hours
at the schedule premises after completing the execution at 3.30 PM for her
signatures. I could come out only at 6.40 PM after obtaining her signatures, as
she refused to sign immediately after execution of the warrant. It is learnt
that the 3rd respondent is a law graduate, but her behaviour is not upto the
level of being a law graduate and her attitude deserves strong condemnation in
the possible works as she has not given any minimum respect to me being lady
appointed by the Hon'ble High Court"
13. It is pertinent to point out that respondents 3 and 4 did not want the
Advocate Commissioner to inspect the premises and filed W.A.No.464 of 2013
against the order dated 15.03.2013 in WPMP.No.1520 of 2013 in W.P.No.17943 of
2008 and the said appeal was disposed of on 03.06.2013, since it was represented
that the order had already worked out and the report was submitted by the
Advocate Commissioner, but giving liberty to the appellants-respondents 3 and 4
to file their objections to the said report within a reasonable period.
14. When the matters came up before this Court on 16.12.2013, after hearing
the learned counsel for petitioner, the learned counsel for respondents 3 and 4
and the learned Standing Counsel for Corporation, this Court directed the
Commissioner of Vijayawada Municipal Corporation to inspect the premises
personally and file a status report with regard to constructions made by
respondents 3 and 4 pursuant to the building permission granted on 27.10.2008 as
there was serious dispute with regard to the constructions made by them. In
pursuance of the said orders, the Commissioner inspected the premises with the
help of the Town Planning Officer on 27.10.2013 and filed the report which reads
as follows:
" The proposed plans sanctioned in B.A.No.1260/2007, dt.19-5-2007 in
D.No.33-18-14, 13, 13A. The proposed site falls in Residential land use as per
Master Plan B.A.No.1260/2007 sanctioned as per G.O.Ms.No.423 M.A. Dt.31-7-1998.
Again the applicant submitted revised plans for construction of
Cellar, Sub-Cellar, G.F + 4 upper floors for Nursing Home in 33-18-13a, 14, 15
by M.J.Naidu, S/o.M.Venkata Ramanaidu, Suryaraopet, Vijayawada, Narasimha Naidu
Street. In the revised plans submitted by M.J.Naidu based on the lease
documents obtained from M.Madhavi his wife.
Occupancy for the building has been issued vide B.A.No.851/2008/G2 dt.13-
05-2011 after obtaining N.O.C. from Fire Department vide Rc.No.839/FPW/VMC/2010
dt.06-01-2011 V.M.C. During outdoor inspection by T.P. Staff, deviations in the
building were found and a notice U/S.452 of HMC Act was issued vide
U.C.No.01/2012 dt.23-01-2012 to stop the unauthorized floors constructed partly
in 5th and 6th floors as duplex residential building and to bring the building
as per the approved plan.
S.No.
As per approval
As on Ground
Remarks
1
2
3
4
1
B.A.No.1260/2007 dt.19.5.07 Stilt, G.F + 4 upper floors Residential Building by
applicant Smt.M.Madhavi W/o.M.J.Naidu D.No.33-18-14, 13, 13A
Constructed Cellar + Sub-Cellar + G.F + 4 upper floors Residential Building
At the time of Construction they have applied for revised plans
2
Revised B.A.No. 851/08 dt.27.10.08 Cellar, Sub-Cellar + G.F + 4 upper floors
Nursing Home by M.J.Naidu, S/o.M.Venkataratnam Naidu, D.No.33-18-13A, 14, 15
Constructed Cellar + Sub-Cellar + G.F + 4 upper floors Nursing Home Building
Part of 5th & 6th floors (duplex) constructed as residence of doctor
3
Occupancy Certificate for B.A.No.851/08/ G2 Dt.13.05.2011 Fire Certificate
839/FPW/VMS/2010 dt.06-01-2011, V.M.C.
Construction of Cellar + Sub-Cellar + G.F + 4 upper floors
After obtaining occupancy certificate cellar was constructed with partitions
made for various purposes
4
U.C.No.01/12 dt.23.01.2012 U/s.452 of HMC Act
Unauthorrized construction of 5th & 6th floor duplex partly of the building
After issuance of occupancy certificate constructed partly 5th & 6th floors
(duplex) house
5
Front Set back (N): 2.68 / 2.30M
Front Set Back (N) : 2.72 / 2.46 M
satisfied
Rear (S) 2.92/2.41M
Rear (S): 2.50 / 2.55M
0.38 Mts. deviated on one corner
Side (E): 2.03/2.12M
Side (E): 2.20 / 2.33M
Satisfied
Side (W): 2.04/3.71M
Side (W): 2.20 / 2.40M
Satisfied
Height of the building: 14.97 Mts.
Height of the building: 22.38 Mts.
Above 15 mts Fire NOC shall obtain from DG fire department, no fire NOC
submitted for unauthorized construction of two floors
Road width (N): Existing - 9.00 Mts
Proposed - 12.00 Mts. (Narasimha Naidu Road)
Road width (N): Existing - 9.00 Mts
Proposed - NIL - Mts. (Narasimha Naidu Road)
Road widening portion was covered with Ramp
Road width (W): Existing - 9.00 Mts
NChalasani Venkata Ramana Street)
Road width (W): 9.00 Mts
(Chalasani Venkata Ramana Street)
Satisfied
Land use: Residential
Land use: Nursing Home
As G.O. MS.No. 674 MA Dt.29-12-2006 Nursing home is permissible but running
Super Speciality Hospital
6
Sub-Cellar - Parking
Sub-Cellar-Parking
Satisfied
Cellar - Parking
Cellar - Admn. Office + Conference Hall
Administrative Office & Conference Hall not permissible
As per approved plan permission was given for Residential building and
again revised plans were approved for Nursing Home consisting Cellar + Sub-
Cellar + G.F + 4 upper floors building. As on ground position the applicant
constructed Sub-Cellar which is being used for parking but in the cellar an
administrative office with Aluminium partitioned Glass fitting and a conference
hall is being run. In approved plan, the height of the building was 14.97M, but
5th and 6th floors duplex residential building has been unauthorizedly
constructed increasing height of the building from 14.97M to 22.38M in back side
i.e. south-west corner of the building. The rear setback is covered with
plastic sheets by rising the compound wall and side open space (east side) over
and above the cellar ramp and used for running canteen. The front setback is
covered 1.90M with front elevation mirrors work. As per sanctioned Master Plan
the site is residential land use in which nursing homes are permitted but the
applicant converted into Super Speciality Hospital. The building abutting to
Master plan road on Eastern side is 9.00 Mts. The building owner left master
plan road widening to a depth of 3.00 mts and west side existing road width is
9.00 Mts. The applicant is paying Property Tax vide Assessment No.189547,
Narasimha Naidu Street, Suryaraopet, D.No.33-8-33A, Vijayawada. Photographs and
sketches are herewith enclosed for perusal."
15. Even when two neighbours were watching the constructions and complaining
of violations, the respondents 3 and 4 who are well educated and respectable
citizens constructed a Superspeciality hospital in Vijayawada City to the
consternation of them and the Municipal Commissioner remained a silent
spectator. The neighbours relentlessly fought and brought the issue to the
notice of this court and this court is called upon to review the nature of
constructions within the parameters of law. In spite of directions, the 2nd
respondent did not produce the entire record, but produced only the record of
sanction plan in B.A.No.851/2008.
SUBMISSIONS OF COUNSEL:
16. Heard the learned counsel for petitioners in both the writ petitions, the
learned Standing Counsel for Corporation and the learned Senior Counsel, Sri L.
Ravichander for respondents 3 and 4.
17. The learned counsel for petitioner in W.P.No.12214 of 2008 submitted that
as per G.O.Ms.No.674, Municipal Administration and Urban Development (I2)
Department, dated 29.12.2006, the building regulations in the residential use
zone permit only dispensaries and nursing homes, whereas in respect of
dispensaries/nursing homes/health centres (20 bed)/hospitals not treating
contiguous diseases or mental patients, the permission of the VGTMUDA is
necessary. However, in respect of hospitals treating contagious and infectious
diseases, they should not be established in the residential use zone. It is
submitted that since the land falls within the residential zone, the
establishment of super speciality hospital by the respondents 3 and 4 cannot be
permitted by the 2nd respondent.
18. The learned counsel for petitioner in W.P.No.17943 of 2008 submitted that
in respect of buildings of height about 15 meters and below 18 meters, necessary
prior clearance from Fire Department is necessary for buildings having six
floors, as per G.O.Ms.No.678, Municipal Administration and Urban Development (M)
Department, dated 07.09.2007. In the instant case, only provisional no-
objection certificate obtained from Fire and Emergency Services Department vide
Rc.No.5391/A4/2008, dated 27.09.2008 was submitted and the 2nd respondent should
not have permitted the running of super speciality hospital.
19. The learned counsel for the petitioners in both the writ petitions
contended that the constructions were made in total disregard to the zonal
regulations under the Urban Areas (Development) Act and the building rules
framed under the GHMC Act. They vehemently contended that even though they have
been complaining right from the beginning, the Corporation has not taken
appropriate action against respondents 3 and 4 and they have neglected their
duty. On the other hand, the learned Standing Counsel for Corporation submitted
that in respect of the constructions made by the third respondent an application
for regularisation of deviations is pending and in respect of deviations made by
4th respondent appropriate notices were issued. The learned Senior Counsel for
respondents 3 and 4, in the face of the report dated 27.10.2013 submitted by
the Commissioner, Vijayawada Municipal Corporation did not justify the
deviations, but stated that this Court cannot do the duty of 'policing' and
should confine itself to the functions of judicial review under Article 226 of
the Constitution of India.
FINDINGS:
20. The facts in these cases are not in dispute. The 3rd respondent obtained
a building permission for construction of ground and three upper floors of
residential building premises door No.33-25-32 in B.A.No.1653/2005, dated
09.09.2005 and constructed a building with deviations from the sanctioned plan
and was utilising it for the purpose of hospital. When complaints were made
with regard to the deviations, she applied to the second respondent for
regularisation of deviations and the same is pending. Though initially she
obtained a building permission in B.A.No.1260/2007 for stilt, ground + four
upper floors in respect of premises bearing door No.33-18-13, 13A and 14 and
constructed the cellar floor, she later leased out the said property in favour
of the 4th respondent. He applied for a revised building permission for
construction of a sub-cellar, cellar, ground + four upper floors for nursing
home duly seeking exemption that can be allowed in terms of G.O.Ms.No.281 dated
01.04.2008. The said construction was challenged by the petitioners and this
Court by an order dated 16.07.2008 called for a status report. Later on in
W.P.M.P.No.1520 of 2013, dated 15.03.2013, an Advocate Commissioner was also
appointed and she submitted a report on 30.04.2013. Since she was not allowed
to inspect the entire building, the learned counsel for petitioners pointed the
lapse and this Court by order dated 16.12.2013 called for a report from the
Municipal Commissioner. He inspected the premises on 27.10.2013 and submitted a
report pointing out the deviations in respect of the constructions made by the
3rd respondent as well as the 4th respondent under B.A.No.1260/2007 and
B.A.No.851/2008. It appears from the report that an Occupancy Certificate was
issued in B.A.No.851/08/G2, dated 13.05.2011. A notice under Section 452 of the
Act was issued on 23.01.2012 to which an explanation appears to have been
submitted. The report of the Commissioner, Vijayawada Municipal Commissioner is
self-explanatory.
21. Basing on these deviations, the learned Senior Counsel for respondents 3
and 4 could not justify the action of the respondents 3 and 4 but reminded this
Court's writ jurisdiction. It is well settled, that this Court, while
exercising its power of judicial review in respect of actions of the Municipal
authorities, is not discharging the police duties, but exercising its powers
given under the provisions of the Constitution and directing implementation of
laws made for larger public good. The powers of judicial review need not be
elaborated. He did not object either to the application of G.O.Ms.No.674 dated
29.12.2006 or of G.O.Ms.No.678 dated 07.09.2007 to the case of the petitioners.
The record also reveals that the provisional no-objection certificate issued by
the Fire and Emergency Services Department for construction of a super
speciality hospital building in premises bearing door No.33-18-13A, 14 and 15 is
subject to the conditions mentioned therein. As per the certificate, the
occupant load is mentioned as 20 in respect of ground floor and 40 each in
respect of ground, first, second, third and fourth floors. The said certificate
is only provisional and not final.
22. The approved Zonal Development Plan of Vijayawada, Guntur, Tenali,
Mangalagiri Urban Development Authority as notified in G.O.Ms.No.674 dated
29.12.2006 divides the main land use in 9 categories. In respect of residential
use zone under category-I, dispensaries and nursing homes are permitted on its
own. But on appeal to the Urban Development Authority, dispensaries/nursing
homes/health centres (20 bed)/ hospitals not treating contiguous diseases or
mental patients are permitted. Admittedly, the present constructions are in
residential use zone only. The provisional No-objection Certificate
issued by the Fire and Emergency Services Department indicates that the occupant
load is mentioned as 20 in respect of ground floor and 40 in respect of ground,
first, second, third and fourth floors. So, the occupancy of nearly 200 people
in and more in a hospital is not permissible under the Zoning Regulations in
respect of residential zone. Respondents 3 and 4 are running a Super Speciality
Hospital. Admittedly there is no permission from the Urban Development Authority
and permission for a hospital from the 2nd respondent alone is existing.
23. Thus, some constructions made by the respondents 3 and 4 are in violation
of the sanctioned plan issued by the 2nd respondent and violating the Zoning
Regulations. There is no final certificate from the Fire and Emergency Services
Department. The major deviations appear to be construction of 5th and 6th floors
(duplex), constructions in cellar with portions and absence of no objection
certificate from the Fire Department due to construction of two floors above the
permitted height covering all the road widening portion, running administrative
office and conference hall in cellar parking area and running a super speciality
hospital when only nursing home having less than 20 beds is permissible with
permission of Urban Development Authority and there is no permission from the
Urban Development Authority.
RELIEF:
24. The record of this case shows that the respondents 3 and 4 changed three
Counsel during their short journey in the case for reasons better known to them.
They made constructions in deviation of sanctioned plan when the Petitioners
have been objecting right from the beginning. The Corporation stood as a silent
spectator except issuing a notice once under Sec.452 of GHMC Act, 1955. The non-
chalant action of the respondents 3 and 4 in the face of constant vigilance of
the neighbours is a matter of grave concern to this Court and this Court wonders
whether the existing laws encourage such actions or defiance of law has become a
rule in the society. The respondents 3 and 4 are respectable and educated
persons in the society and society expects respect for law from them. The
discretionary power of the Commissioner to regularise unauthorised constructions
is meant to be exercised in cases of inevitability and where they do not
infringe neighbours' rights but not in cases of defiance. The authorities and
courts exist to protect law and give relief to the aggrieved in appropriate
cases. The Petitioners approached this Court in a helpless situation and by
entertaining their grievance and granting relief to them, this court is not
acting as 'Police' and is a total misunderstanding of the role of this court
and showing disrespect.
25. In Calcutta Corporation V. Mulchand1, the Hon'ble Supreme Court was
considering an appeal against the judgment of the High Court of Calcutta
affirming the order of the Municipal Magistrate, whereby he dismissed an
application filed by the appellant under Section 363 of the Calcutta Municipal
Act, 1983, for demolition of certain constructions on the ground that they had
been erected without the previous permission of the authorities and in
contravention of the prescriptions laid down in the building rules. The
observations made by the Hon'ble Supreme Court, while disposing of the case, are
apposite.
"13. The courts below were also influenced by the fact that there was no
complaint from the neighbours about the erection of the building. It must be
remembered that the building rules are enacted generally for the benefit of the
public, and where those rules have been violated and proceedings are taken for
an order for demolition of the building under Section 363 what has to be decided
is whether the breaches are of a formal or trivial character in which case the
imposition of a fine might meet the requirements of the case, or whether they
are serious and likely to affect adversely the interests of the public, in which
case it would be proper to pass an order for demolition.
Whether there has been a complaint from the public would not as such be material
for deciding the question, though if there was one, it would be a piece of
evidence in deciding whether the interests of the public have suffered by reason
of the breaches.
14. The position, therefore, is that the orders of the courts below are based
on mistakes and misdirections, and cannot be supported. The conduct of the
respondent in adopting a hide-and-seek attitude in completing the constructions
in deliberate defiance of the law calls for severe action. It would be most
unfortunate, and the interests of the public will greatly suffer, if the notion
were to be encouraged that a person might with impunity break the building rules
and put up a construction and get away with it on payment of fine."
26. This Court in Saddi Narasimha Reddi V. Commissioner, Municipal Corporation
of Hyderabad2, considered the case of construction in deviation of sanctioned
plan and upheld the order of the Municipal Corporation directing demolition. In
the said decision, this Court considered the above decision of the Hon'ble
Supreme Court. The learned Single Judge while considering the above
observations, held as follows:
"15. Building bye-laws in a Municipality belong to that category of inflexible
and inexorable laws of house-building the observance of which cannot be waived
normally either in prospect or retrospect by the municipal authorities. The
prohibitions contained in these building bye-laws are prohibitions against a
builder and for the benefit of the neighbourhood. They cannot therefore be
lifted by the Municipal Corporation. If Courts hold that even in such cases the
municipal authorities cannot demolish, it would amount to authorising the
municipal authorities to sanction departures of law which have injurious effects
on the health and well-being of all those that are living in the neighbourhood.
In other words, such a course of action would involve sanctioning inflicting of
injury on third parties which could never have been contemplated by the statute.
27. In 3 ACES V. M.C.H.3, a Full Bench of this Court considered the judgment
of the Hon'ble Supreme Court in Pratibha Co-operative Housing
Society Ltd. V. State of Maharashtra4 and extracted the following observations.
"The rules, regulations and bye-laws are made by the Corporations or development
authorities taking in view the larger public interest of the society and it is
the bounden duty of the citizens to obey and follow such rues which are made for
their own benefits."
28. The Full Bench further held that where public interest is involved and it
is found that there is violation of the provisions of the Act, Rules,
Regulations and Bye-laws made by the Corporations or developmental authorities,
it is permissible for the Court to take notice of the same and give effect to
them. It further held that when an illegality is brought to the notice of the
Court, particularly relating to public interest, the Court should take notice of
it and apply to the case. (Vide Mohamoud and Ispahani5).
29. Chapter 12 of the GHMC Act deals with building regulations. Section 451
of the GHMC Act deals with the inspection of buildings in course of erection,
alteration, etc. Section 452 empowers the Commissioner to issue a notice in
case of constructions made contrary to the provisions of the GHMC Act. Section
454 gives power to the Commissioner for enforcement of provisions concerning
buildings and works. These powers need not be exercised by the Commissioner
himself personally and he can exercise the powers through his officers. The
Supreme Court in Dr.G.N.Khajuria V. Delhi Development Authority6, took note of
such situations and observed in that case as follows:
"10. Before parting, we have an observation to make. The same is that a feeling
is gathering ground that where unauthorised constructions are demolished on the
force of the order of courts, the illegality is not taken care of fully inasmuch
as the officers of the statutory body who had allowed the unauthorised
construction to be made or make illegal allotments go scot free. This should
not, however, have happen for two reasons. First, it is the illegal action/order
of the officer which lies at the root of the unlawful act of the concerned
citizen, because of which the officer is more to be blamed than the recipient of
the illegal benefit. It is thus imperative, according to us, that while undoing
the mischief which would require the demolition of the unauthorised
construction, the delinquent officer has also to be punished in accordance with
law. This, however, seldom happens. Secondly, to take care of the injustice
completely, the officer who had misused his power has also to be properly
punished. Otherwise, what happens is that the officer, who made the hay when the
sun shined, retains the hay, which tempts other to do the same. This really
gives fillip to the commission of tainted acts, whereas the aim should be
opposite.
11. We, therefore, call upon respondent No.1 to make an enquiry and inform the
Court within three months as to who are the officers who had made the
unauthorised allotment and permitted unauthorised construction. On knowing about
this, such further orders would be passed as deemed fit and proper."
30. I may usefully refer the erudite observations of the learned single Judge
of this court made in 'Saddi Narasimha Reddy' case:
"20. Mr.Tej Rai Kapoor in the course of his argument has repeatedly stressed
the fact that in upholding the order of demolition, I would be upholding the
order of destruction of a building already constructed and that I should not
sanction such a course of action. This is an argument based on unexpressed
assumption of inviolability of the institution of 'property'. Proudhon
denounced "all property as theft". Marx no doubt criticised this view as
unscientific and as one coming out of Proudhon's poverty of philosophy.
Therefore is no doubt that possession and enjoyment of minimum of property is
indispensable condition for a meaningful existence of a modern civilized life
and therefore the institution of property should be adequately safeguarded. But
we must note that there can be no property outside the legal and social
framework. Any acquisition of property that a particular legal order does not
sanction should receive neither legal recognition nor legal protection. It is
this type of 'property' which can be truly called 'theft'. Petitioner's
unauthorised constructions, in my opinion, belong to that category. No one in
the name of 'property' should be allowed to endanger the rights of others. Such
'property' should not receive the same protection of legitimate property. This
argument of Mr.Tej Rai Kapoor must therefore be rejected."
31. For the aforesaid reasons, these writ petitions are allowed subject to
directions hereunder. The respondents 3 and 4 made constructions with an
undertaking on 06.05.2009 in WPMP.No.23360 of 2008 in W.P.No.17943 of 2008 given
to this court that their constructions would be subject to the result of the
writ petition and they would not claim equities, while taking time to file
counter-affidavit. In view of the violations and taking into consideration the
undertaking given by the respondents 3 and 4 to this court, they are given one
month time to bring the constructions made by them in consonance with the
building permission obtained by them in the presence of the officers of the 2nd
respondent and comply other statutory requirements, failing which the 2nd
respondent is directed to demolish the deviated constructions in order to bring
the constructions within the sanctioned permission without any further notice to
them and take action with respect to other statutory requirements and report
compliance to the Registrar (Vigilance) of this Court within two months
thereafter.
32. These writ petitions are accordingly allowed. No costs. Miscellaneous
Petitions pending, if any in these writ petitions, shall stand closed.
______________________________
A.RAMALINGESWARA RAO, J
Date:10.03.2014
"........ The building permission was granted in BA.No.1653/2005,
dt.9-9-2005. The said construction was commenced and completed in deviation to
the approval given and the said owner of the property unauthorisedly constructed
cellar, ground, mezzanine floor & 3 upper floors and a part 4th floor with AC
sheet roof building with deviations as detailed below. The owner of the said
property also deviated in use of the building and unauthorisedly converted the
usage from residential to hospital.=
The Supreme Court in Dr.G.N.Khajuria V. Delhi Development Authority6, took note of
such situations and observed in that case as follows:
"10. Before parting, we have an observation to make. The same is that a feeling
is gathering ground that where unauthorised constructions are demolished on the
force of the order of courts, the illegality is not taken care of fully inasmuch
as the officers of the statutory body who had allowed the unauthorised
construction to be made or make illegal allotments go scot free. This should
not, however, have happen for two reasons.
First, it is the illegal action/order
of the officer which lies at the root of the unlawful act of the concerned
citizen, because of which the officer is more to be blamed than the recipient of
the illegal benefit. It is thus imperative, according to us, that while undoing
the mischief which would require the demolition of the unauthorised
construction, the delinquent officer has also to be punished in accordance with
law. This, however, seldom happens.
Secondly, to take care of the injustice
completely, the officer who had misused his power has also to be properly
punished. Otherwise, what happens is that the officer, who made the hay when the
sun shined, retains the hay, which tempts other to do the same.
This really
gives fillip to the commission of tainted acts, whereas the aim should be
opposite.
11. We, therefore, call upon respondent No.1 to make an enquiry and inform the
Court within three months as to who are the officers who had made the
unauthorised allotment and permitted unauthorised construction. On knowing about
this, such further orders would be passed as deemed fit and proper."
The respondents 3 and 4 made constructions with an
undertaking on 06.05.2009 in WPMP.No.23360 of 2008 in W.P.No.17943 of 2008 given
to this court that their constructions would be subject to the result of the
writ petition and they would not claim equities, while taking time to file
counter-affidavit. In view of the violations and taking into consideration the
undertaking given by the respondents 3 and 4 to this court, they are given one
month time to bring the constructions made by them in consonance with the
building permission obtained by them in the presence of the officers of the 2nd
respondent and comply other statutory requirements, failing which the 2nd
respondent is directed to demolish the deviated constructions in order to bring
the constructions within the sanctioned permission without any further notice to
them and take action with respect to other statutory requirements and report
compliance to the Registrar (Vigilance) of this Court within two months
thereafter.
32. These writ petitions are accordingly allowed. No costs. Miscellaneous
Petitions pending, if any in these writ petitions, shall stand closed.
such situations and observed in that case as follows:
"10. Before parting, we have an observation to make. The same is that a feeling
is gathering ground that where unauthorised constructions are demolished on the
force of the order of courts, the illegality is not taken care of fully inasmuch
as the officers of the statutory body who had allowed the unauthorised
construction to be made or make illegal allotments go scot free. This should
not, however, have happen for two reasons.
First, it is the illegal action/order
of the officer which lies at the root of the unlawful act of the concerned
citizen, because of which the officer is more to be blamed than the recipient of
the illegal benefit. It is thus imperative, according to us, that while undoing
the mischief which would require the demolition of the unauthorised
construction, the delinquent officer has also to be punished in accordance with
law. This, however, seldom happens.
Secondly, to take care of the injustice
completely, the officer who had misused his power has also to be properly
punished. Otherwise, what happens is that the officer, who made the hay when the
sun shined, retains the hay, which tempts other to do the same.
This really
gives fillip to the commission of tainted acts, whereas the aim should be
opposite.
11. We, therefore, call upon respondent No.1 to make an enquiry and inform the
Court within three months as to who are the officers who had made the
unauthorised allotment and permitted unauthorised construction. On knowing about
this, such further orders would be passed as deemed fit and proper."
The respondents 3 and 4 made constructions with an
undertaking on 06.05.2009 in WPMP.No.23360 of 2008 in W.P.No.17943 of 2008 given
to this court that their constructions would be subject to the result of the
writ petition and they would not claim equities, while taking time to file
counter-affidavit. In view of the violations and taking into consideration the
undertaking given by the respondents 3 and 4 to this court, they are given one
month time to bring the constructions made by them in consonance with the
building permission obtained by them in the presence of the officers of the 2nd
respondent and comply other statutory requirements, failing which the 2nd
respondent is directed to demolish the deviated constructions in order to bring
the constructions within the sanctioned permission without any further notice to
them and take action with respect to other statutory requirements and report
compliance to the Registrar (Vigilance) of this Court within two months
thereafter.
32. These writ petitions are accordingly allowed. No costs. Miscellaneous
Petitions pending, if any in these writ petitions, shall stand closed.
2014 (March. Part) judis.nic.in/judis_andhra/filename=3391
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.12214 OF 2008
10-03-2014
N.Srinivas and another...Petitioners
The Government of Andhra Pradesh, Rep. by its Secretary H.M.A & U.D.A
Department, Secretariat Building, Hyderabad and others.. Respondents
Counsel for the Petitioner: Sri V.S.R.Anjaneyulu
Counsel for the Respondents: G.P.for Municipal Admn. &
Urban Area Development
<Gist :
>Head Note :
?Cases referred
1 AIR 1956 SC 110
2 1981 (1) ALT 46
3 1994 (3) ALT 73 (F.B.)
4 AIR 1991 SC 1453
5 1921 (2) K.B. 716
6 (1995) 5 SCC 762
HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.12214 and 17943 of 2008
In spite of Dr.Thomas Fuller's warning in 1733 saying 'be ye never so
high, the law is above you' and reiterated later by Lord Denning, still some
feel that they can violate law with impunity.
2. These two writ petitions are disposed of by a common order in view of the
common issue involved in them.
FACTS OF THE CASE:
3. The parties are described, for the sake of convenience, as they are
arrayed in W.P.17943 of 2008.
4. One, Smt. M.Madhavi, the 3rd respondent, is the owner of properties
bearing premises bearing Nos.33-25-32, Bellapu Sobhanadri Street, Kasturibaipet,
Vijayawada and premises bearing Nos. 33-18-13, 13A and 14, situated at
C.V.K.Street, Suryaraopet, Vijayawada in her own capacity and as Managing
Director of M/s.Venkateswara Hospitals (P) Ltd. Her husband, the 4th respondent
is an Orthopaedic Surgeon. Her property has two neighbours. One neighbour is a
owner of property, premises bearing door No.33-18-16, situated at C.V.K.Street,
Suryaraopet, Vijayawada (Petitioner in W.P.12214 of 2008) and the other is the
owner of another property, premises bearing door No.33-25-33, situated at
Bellapu Sobhanadri Street, Vijayawada (Petitioner in W.P.17943 of 2008). She
initially obtained sanction for construction of RCC roof slab for ground + three
floors in premises bearing door Nos.33-25-32, NTS No.791, Vijayawada through
proceedings of the Vijayawada Municipal Corporation, 2nd respondent, in
B.A.No.1653/2005, dated 09.09.2005. The said sanction plan was for construction
of residential building, but the building was constructed to suit their
convenience to run a hospital. The Petitioner in W.P.12214/2008 got issued a
registered notice on 19.11.2007 to the 2nd respondent to take appropriate
action. It was followed by another notice on 23.11.2007 to the 2nd respondent to
take expeditious action on the subject. The 3rd respondent got issued a reply
dated 01.12.2007 admitting the fact that her hospital is being run in the
building. She filed an application for regularising the deviated portion of the
constructions and no further orders were passed in view of orders in
W.P.M.P.No.1276 of 2008 in W.P.No.1069 of 2008 dated 27-3-
2008. The 2nd respondent filed a detailed report on 16-7-2008 with regard to the
deviations.
5. The 3rd respondent obtained another permission from the second respondent
in B.A.No.1260/2007 dated 19.05.2007 for construction of RCC roof slab for
stilt, ground + four floors for residential building in premises bearing door
No.33-18-14, 13 & 13A. The above petitioner again got issued a notice on
21.01.2008 requesting the 3rd respondent not to proceed with the unauthorised
constructions. The petitioner obtained copies of approved plans and issued
another notice to the 2nd respondent to stop illegal constructions of the 3rd
respondent. When the respondents did not take any action, the W.P.No.12214 of
2000 was filed. The third respondent denied the allegation that the building was
constructed in violation of master plan and zonal regulations. She stated that
her husband, 4th respondent was using the said building to run a nursing home
which is permissible in residential area. Since there were minor deviations to
the sanctioned plan, she applied for regularisation of deviations by paying
requisite fee prescribed by the Government. She denied the allegation of
nuisance and harassment to the petitioner. She further stated that she, along
with Sri Venkateswara Hospitals Private Limited are the joint owners of the
property situated at C.K.Street, Suryaraopet, Vijayawada and she obtained
permission for construction of residential apartments vide B.A.No.1260/2007
dated 19.05.2007. Since the sanctioned plan was not suitable to their needs and
as the 4th respondent is a doctor by profession, she leased out the property
bearing door No.33-18-14, 13, 13A in favour of Sri M.Jeeva Ratnam Naidu who is
none other than her husband and he applied for revised building permission
proposing to construct a sub-cellar, cellar and ground floor + four upper floors
for nursing home. When the application satisfied the conditions under
G.O.Ms.No.678 dated 07.09.2007 and G.O.Ms.No.281 dated 01.04.2008, the building
permission was granted. It is stated that the petitioner in W.P.17943 of 2008
himself had given his house for running a hospital under the name and style of
"Dr.Satish's Endocare" to one doctor Satish Chandra. It is stated that the writ
petition was filed in order to cause wrongful loss to them.
6. It is the case of the petitioner in W.P.17943 of 2008 that the 4th
respondent initially purchased a house in the name of the 3rd respondent in an
extent of about 318 square yards bearing house No.33-18-15. He demolished the
said house and constructed a hospital and was running the same for the last 18
years. He also purchased a house bearing house No.33-18-13 and another house
bearing house No.33-18-13A to the north of the petitioner. Later, the 4th
respondent purchased two other properties to the north of his hospital with a
view to construct a super speciality hospital by demolishing the existing
hospital. The house to the backside of the existing hospital bearing house
No.33-25-32 is adjacent to the house of the petitioner. The petitioner further
stated that in view of construction of hospital on southern side and western
side with five floors, it is impossible for a family to reside as a neighbour.
The patients were throwing used cottons, bandages, etc., and no set backs were
maintained, as a result of which, they lost privacy. It is also stated that
sanctioning of revised plan by the Corporation on 27.10.2008 in the place of old
plan in the name of the 4th respondent, pending writ petition was illegal.
Challenging the same, the petitioner filed W.P.17943 of 2008 and sought a
further direction to demolish the unauthorised structures.
7. The Vijayawada Municipal Corporation, the 2nd respondent filed a counter-
affidavit stating that the 3rd respondent initially obtained permission for
construction of a residential building of stilt, ground and four upper floors,
but committed deviations by constructing cellar floor. When the construction
was going on, she leased out the total property in favour of her husband, 4th
respondent and he, as a lease holder, applied for building permission with
revised proposal for construction of a sub-cellar, cellar, ground and four upper
floors for nursing home duly seeking exemption that can be allowed in terms of
G.O.Ms.No.281 dated 01.04.2008. The revised building permission was granted
vide B.A.No.851/2008 dated 27.10.2008. After obtaining building permission for
construction of stilt, ground + four floors for residential building, he
constructed the building in deviation of the approved plan. The allegation that
the Corporation did not take any action on the construction commenced in
deviation to the approved plan was denied. It is stated that after receiving
complaints, notices under Sections 42(1) and 43(1) of A.P. Urban Areas
Development Act, 1975 read with Section 452 of Greater Hyderabad Municipal
Corporation Act, 1955 (for short, GHMC Act) were issued. On receiving the show
cause notice, the 3rd respondent submitted her explanation stating that due to
the soft nature of the soil, the Structural Engineer and the Architect advised
her to construct a pillar from sufficient depth as well as slab like cellar
floor and stated that it was not intended to use as a cellar floor. It is
further stated that she also assured to fill up the area below the ground floor
with sand and rubbish after completion of the building. She further stated in
her explanation that she did not violate any of the rules and regulations and
requested for dropping action. She also submitted an application requesting for
regularising the deviated portions of the constructions in premises bearing door
No.33-25-32 against which action was initiated. It is further stated by the 2nd
respondent in his counter that they have discretion for taking action for
removal of the deviations but cannot be claimed as a matter of right.
8. This Court, by order dated 16.07.2008 in W.P.M.P.No.15744 of 2008 in
W.P.No.12214 of 2008, after noticing that the 3rd respondent has not entered
appearance in spite of serving a notice, granted interim direction to the second
respondent to depute one of its officers to the premises of the 3rd respondent
and submit a status report indicating the nature of permission accorded to the
4th respondent and if it was accorded, whether it was residential purpose or
commercial purpose.
9. In pursuance of the directions of this Court dated 16.07.2008, the City
Planner, Vijayawada Municipal Corporation, was deputed to inspect the premises
of the owner and he submitted a report which reads as follows:
"........ The building permission was granted in BA.No.1653/2005,
dt.9-9-2005. The said construction was commenced and completed in deviation to
the approval given and the said owner of the property unauthorisedly constructed
cellar, ground, mezzanine floor & 3 upper floors and a part 4th floor with AC
sheet roof building with deviations as detailed below. The owner of the said
property also deviated in use of the building and unauthorisedly converted the
usage from residential to hospital.
Sl.
No.
Description
As per approved plan
As on ground
Remarks
1
Front (E)
5.0 M
3.96 M
1.04 M less
2
Rear (W)
5.0 M
--
5.0 M less
3
Side (N)
2.50 M
0.76
1.74 M less
4
Side (S)
2.50 M
1.12
1.38 M less
5
No. of floors
Ground + 3 floors
Cellar + ground+ Mezzanine + 4 upper floors
Cellar floor and two floors excess
6
Usage
Residential
Hospital
Deviation
Already the respondent Corporation initiated action for the deviations
committed and issued notices vide UC.No.97/05, dt.31-12-05, U.C.Notice No.6/06,
dt.29-4-06, UC.No.20/06, dt.15-5-06 and UC.No.26/06, dt.6-7-06 under the
provisions of Section 42 (1) 43 (1) of AP UDA Act, 1975 read with Section 452 of
HMC Act, 1955.
Subsequently, the said owner of the property submitted applications along
with plans requesting to regularize the deviated constructed portions in terms
of G.O.Ms.No.901, dt.31-12-07 vide BPS application No.1/2008. No action has
been taken on the said application in pursuance of Hon'ble A.P. High Court
orders in WPMP.No.1276/08 in WP.No.1069/08, dt.27-3-08."
10. In respect of the property built by her husband, 4th respondent, it reads
as follows:
".......... As on the date of inspection i.e., on 28-7-2008 the status of the
construction with set back deviations is as follows:-
Sl.
No.
Description
As per approved plan
As on ground
Remarks
1
Front set back (North)
7.04 M
7.50 M
No deviation
2
Rear set back (South)
4.20 M
4.05 M
0.15 M less
3
Side set back (East)
4.00 M / 4.50 M
3.65 M/3.50 M
0.35M/1.00 M less
4
Side set back (West)
4.50 M
3.60 M
0.90 M less
Though, the permission was obtained for construction of apartment building
consisting of stilt floor for parking and ground floor + flour floors,
Smt.M.Madhavi (R-4 in this writ) has constructed sub-cellar floor unauthorisedly
and further proceeded for construction of cellar floor and the work is at slab
level. At present the work was stopped.
Further it is to submit that the Vijayawada Municipal Corporation has
accorded permission to Smt.M.Madhavi (R-4 in this writ) for construction of
residential apartment building consisting of stilt floor for parking, ground
floor + 4 upper floors vide B.A.No.1260/07 dt.19-5-07. But Smt.Madhavi (R-4 in
this writ) has constructed sub-cellar floor unauthorisedly and cellar floor upto
roof level. Since the construction is at parking floor level, the proposed use
of the building cannot be confirmed at the time of this report.
Further any deviation to the approved plan or usage from residential
apartment to other non residential use in future the VMC will initiate action
for revoking the building permit issued in B.A.No.1260/07 dt.19-5-07."
11. The petitioner filed WPMP.No.36133 of 2008 in W.P.17943 of 2008 subsequent
to the sanction of revised permission seeking amendment of the prayer and the
same was ordered on 30.04.2009. This Court, on 06.05.2009 in WPMP.No.23360 of
2008 in W.P.No.17943 of 2008, while granting time to file counter-
affidavit held that any constructions made by respondents 3 and 4 shall be
subject to the result of the writ petition and they shall not claim equities.
Against the said order, the petitioner preferred an appeal vide
W.A.(SR).No.62108 of 2009 with an application vide WAMP.No.1755 of 2009 to
condone the delay of 8 days in filing the writ appeal. The said application was
dismissed by imposing a cost of Rs.10,000/- in view of the statements made in
the affidavit filed in support of the said application, by order dated
09.07.2009. The petitioner did not rest there. He filed Special Leave Petition
(Civil Appeal) No.24823 of 2003 against the said order and the same was
dismissed on 19.10.2009 with an observation that the learned Single Judge would
consider the matter uninfluenced by any observations made by the Division Bench.
12. In WPMP.No.1520 of 2013 in W.P.No.17943 of 2008, dated 15.03.2013, a
Commissioner was appointed for making local inspection and note down the
physical features of the subject building constructed by respondents 3 and 4,
height of the building, construction over and above four upper floors and
details of fire safety measures taken in respect of the building including the
scope for free movement of fire fighting vehicles to reach the building. The
Advocate Commissioner submitted a report dated 30.04.2013 giving details of her
observations and also stating that she was not allowed to go on top of the
building i.e., above the 6th floor by the third respondent. She also observed
that the building was consisting of sub-cellar, Cellar, ground, four floors and
two pent houses on fifth and sixth floors. At the time of her inspection, some
construction work was going on, on top of the building above sixth floor, but
she was not allowed to see and report the exact nature of the work. Ultimately,
she ended her report as follows:
"6. I am constrained to state herein that the commission work started at 10.30
AM and completed at 3.30 PM though it doesn't require such lengthy time because
of the non co-operation of the 3rd respondent, it got delayed. Initially she
participated and left the place after an hour. Thereafter, after three hours
she returned and asked for re-measurement of set backs, height etc. In 4th
floor all the doors are closed and inspite of telling she did not open the
doors. When I wanted to go to the terrace she said that keys are not available.
But, some work is going on the terrace, due to which the 3rd respondent doesn't
want me to note in my report. I was made to suffer in the hot summer even for
obtaining signatures on the proceedings sheet. I was made to wait for 2 hours
at the schedule premises after completing the execution at 3.30 PM for her
signatures. I could come out only at 6.40 PM after obtaining her signatures, as
she refused to sign immediately after execution of the warrant. It is learnt
that the 3rd respondent is a law graduate, but her behaviour is not upto the
level of being a law graduate and her attitude deserves strong condemnation in
the possible works as she has not given any minimum respect to me being lady
appointed by the Hon'ble High Court"
13. It is pertinent to point out that respondents 3 and 4 did not want the
Advocate Commissioner to inspect the premises and filed W.A.No.464 of 2013
against the order dated 15.03.2013 in WPMP.No.1520 of 2013 in W.P.No.17943 of
2008 and the said appeal was disposed of on 03.06.2013, since it was represented
that the order had already worked out and the report was submitted by the
Advocate Commissioner, but giving liberty to the appellants-respondents 3 and 4
to file their objections to the said report within a reasonable period.
14. When the matters came up before this Court on 16.12.2013, after hearing
the learned counsel for petitioner, the learned counsel for respondents 3 and 4
and the learned Standing Counsel for Corporation, this Court directed the
Commissioner of Vijayawada Municipal Corporation to inspect the premises
personally and file a status report with regard to constructions made by
respondents 3 and 4 pursuant to the building permission granted on 27.10.2008 as
there was serious dispute with regard to the constructions made by them. In
pursuance of the said orders, the Commissioner inspected the premises with the
help of the Town Planning Officer on 27.10.2013 and filed the report which reads
as follows:
" The proposed plans sanctioned in B.A.No.1260/2007, dt.19-5-2007 in
D.No.33-18-14, 13, 13A. The proposed site falls in Residential land use as per
Master Plan B.A.No.1260/2007 sanctioned as per G.O.Ms.No.423 M.A. Dt.31-7-1998.
Again the applicant submitted revised plans for construction of
Cellar, Sub-Cellar, G.F + 4 upper floors for Nursing Home in 33-18-13a, 14, 15
by M.J.Naidu, S/o.M.Venkata Ramanaidu, Suryaraopet, Vijayawada, Narasimha Naidu
Street. In the revised plans submitted by M.J.Naidu based on the lease
documents obtained from M.Madhavi his wife.
Occupancy for the building has been issued vide B.A.No.851/2008/G2 dt.13-
05-2011 after obtaining N.O.C. from Fire Department vide Rc.No.839/FPW/VMC/2010
dt.06-01-2011 V.M.C. During outdoor inspection by T.P. Staff, deviations in the
building were found and a notice U/S.452 of HMC Act was issued vide
U.C.No.01/2012 dt.23-01-2012 to stop the unauthorized floors constructed partly
in 5th and 6th floors as duplex residential building and to bring the building
as per the approved plan.
S.No.
As per approval
As on Ground
Remarks
1
2
3
4
1
B.A.No.1260/2007 dt.19.5.07 Stilt, G.F + 4 upper floors Residential Building by
applicant Smt.M.Madhavi W/o.M.J.Naidu D.No.33-18-14, 13, 13A
Constructed Cellar + Sub-Cellar + G.F + 4 upper floors Residential Building
At the time of Construction they have applied for revised plans
2
Revised B.A.No. 851/08 dt.27.10.08 Cellar, Sub-Cellar + G.F + 4 upper floors
Nursing Home by M.J.Naidu, S/o.M.Venkataratnam Naidu, D.No.33-18-13A, 14, 15
Constructed Cellar + Sub-Cellar + G.F + 4 upper floors Nursing Home Building
Part of 5th & 6th floors (duplex) constructed as residence of doctor
3
Occupancy Certificate for B.A.No.851/08/ G2 Dt.13.05.2011 Fire Certificate
839/FPW/VMS/2010 dt.06-01-2011, V.M.C.
Construction of Cellar + Sub-Cellar + G.F + 4 upper floors
After obtaining occupancy certificate cellar was constructed with partitions
made for various purposes
4
U.C.No.01/12 dt.23.01.2012 U/s.452 of HMC Act
Unauthorrized construction of 5th & 6th floor duplex partly of the building
After issuance of occupancy certificate constructed partly 5th & 6th floors
(duplex) house
5
Front Set back (N): 2.68 / 2.30M
Front Set Back (N) : 2.72 / 2.46 M
satisfied
Rear (S) 2.92/2.41M
Rear (S): 2.50 / 2.55M
0.38 Mts. deviated on one corner
Side (E): 2.03/2.12M
Side (E): 2.20 / 2.33M
Satisfied
Side (W): 2.04/3.71M
Side (W): 2.20 / 2.40M
Satisfied
Height of the building: 14.97 Mts.
Height of the building: 22.38 Mts.
Above 15 mts Fire NOC shall obtain from DG fire department, no fire NOC
submitted for unauthorized construction of two floors
Road width (N): Existing - 9.00 Mts
Proposed - 12.00 Mts. (Narasimha Naidu Road)
Road width (N): Existing - 9.00 Mts
Proposed - NIL - Mts. (Narasimha Naidu Road)
Road widening portion was covered with Ramp
Road width (W): Existing - 9.00 Mts
NChalasani Venkata Ramana Street)
Road width (W): 9.00 Mts
(Chalasani Venkata Ramana Street)
Satisfied
Land use: Residential
Land use: Nursing Home
As G.O. MS.No. 674 MA Dt.29-12-2006 Nursing home is permissible but running
Super Speciality Hospital
6
Sub-Cellar - Parking
Sub-Cellar-Parking
Satisfied
Cellar - Parking
Cellar - Admn. Office + Conference Hall
Administrative Office & Conference Hall not permissible
As per approved plan permission was given for Residential building and
again revised plans were approved for Nursing Home consisting Cellar + Sub-
Cellar + G.F + 4 upper floors building. As on ground position the applicant
constructed Sub-Cellar which is being used for parking but in the cellar an
administrative office with Aluminium partitioned Glass fitting and a conference
hall is being run. In approved plan, the height of the building was 14.97M, but
5th and 6th floors duplex residential building has been unauthorizedly
constructed increasing height of the building from 14.97M to 22.38M in back side
i.e. south-west corner of the building. The rear setback is covered with
plastic sheets by rising the compound wall and side open space (east side) over
and above the cellar ramp and used for running canteen. The front setback is
covered 1.90M with front elevation mirrors work. As per sanctioned Master Plan
the site is residential land use in which nursing homes are permitted but the
applicant converted into Super Speciality Hospital. The building abutting to
Master plan road on Eastern side is 9.00 Mts. The building owner left master
plan road widening to a depth of 3.00 mts and west side existing road width is
9.00 Mts. The applicant is paying Property Tax vide Assessment No.189547,
Narasimha Naidu Street, Suryaraopet, D.No.33-8-33A, Vijayawada. Photographs and
sketches are herewith enclosed for perusal."
15. Even when two neighbours were watching the constructions and complaining
of violations, the respondents 3 and 4 who are well educated and respectable
citizens constructed a Superspeciality hospital in Vijayawada City to the
consternation of them and the Municipal Commissioner remained a silent
spectator. The neighbours relentlessly fought and brought the issue to the
notice of this court and this court is called upon to review the nature of
constructions within the parameters of law. In spite of directions, the 2nd
respondent did not produce the entire record, but produced only the record of
sanction plan in B.A.No.851/2008.
SUBMISSIONS OF COUNSEL:
16. Heard the learned counsel for petitioners in both the writ petitions, the
learned Standing Counsel for Corporation and the learned Senior Counsel, Sri L.
Ravichander for respondents 3 and 4.
17. The learned counsel for petitioner in W.P.No.12214 of 2008 submitted that
as per G.O.Ms.No.674, Municipal Administration and Urban Development (I2)
Department, dated 29.12.2006, the building regulations in the residential use
zone permit only dispensaries and nursing homes, whereas in respect of
dispensaries/nursing homes/health centres (20 bed)/hospitals not treating
contiguous diseases or mental patients, the permission of the VGTMUDA is
necessary. However, in respect of hospitals treating contagious and infectious
diseases, they should not be established in the residential use zone. It is
submitted that since the land falls within the residential zone, the
establishment of super speciality hospital by the respondents 3 and 4 cannot be
permitted by the 2nd respondent.
18. The learned counsel for petitioner in W.P.No.17943 of 2008 submitted that
in respect of buildings of height about 15 meters and below 18 meters, necessary
prior clearance from Fire Department is necessary for buildings having six
floors, as per G.O.Ms.No.678, Municipal Administration and Urban Development (M)
Department, dated 07.09.2007. In the instant case, only provisional no-
objection certificate obtained from Fire and Emergency Services Department vide
Rc.No.5391/A4/2008, dated 27.09.2008 was submitted and the 2nd respondent should
not have permitted the running of super speciality hospital.
19. The learned counsel for the petitioners in both the writ petitions
contended that the constructions were made in total disregard to the zonal
regulations under the Urban Areas (Development) Act and the building rules
framed under the GHMC Act. They vehemently contended that even though they have
been complaining right from the beginning, the Corporation has not taken
appropriate action against respondents 3 and 4 and they have neglected their
duty. On the other hand, the learned Standing Counsel for Corporation submitted
that in respect of the constructions made by the third respondent an application
for regularisation of deviations is pending and in respect of deviations made by
4th respondent appropriate notices were issued. The learned Senior Counsel for
respondents 3 and 4, in the face of the report dated 27.10.2013 submitted by
the Commissioner, Vijayawada Municipal Corporation did not justify the
deviations, but stated that this Court cannot do the duty of 'policing' and
should confine itself to the functions of judicial review under Article 226 of
the Constitution of India.
FINDINGS:
20. The facts in these cases are not in dispute. The 3rd respondent obtained
a building permission for construction of ground and three upper floors of
residential building premises door No.33-25-32 in B.A.No.1653/2005, dated
09.09.2005 and constructed a building with deviations from the sanctioned plan
and was utilising it for the purpose of hospital. When complaints were made
with regard to the deviations, she applied to the second respondent for
regularisation of deviations and the same is pending. Though initially she
obtained a building permission in B.A.No.1260/2007 for stilt, ground + four
upper floors in respect of premises bearing door No.33-18-13, 13A and 14 and
constructed the cellar floor, she later leased out the said property in favour
of the 4th respondent. He applied for a revised building permission for
construction of a sub-cellar, cellar, ground + four upper floors for nursing
home duly seeking exemption that can be allowed in terms of G.O.Ms.No.281 dated
01.04.2008. The said construction was challenged by the petitioners and this
Court by an order dated 16.07.2008 called for a status report. Later on in
W.P.M.P.No.1520 of 2013, dated 15.03.2013, an Advocate Commissioner was also
appointed and she submitted a report on 30.04.2013. Since she was not allowed
to inspect the entire building, the learned counsel for petitioners pointed the
lapse and this Court by order dated 16.12.2013 called for a report from the
Municipal Commissioner. He inspected the premises on 27.10.2013 and submitted a
report pointing out the deviations in respect of the constructions made by the
3rd respondent as well as the 4th respondent under B.A.No.1260/2007 and
B.A.No.851/2008. It appears from the report that an Occupancy Certificate was
issued in B.A.No.851/08/G2, dated 13.05.2011. A notice under Section 452 of the
Act was issued on 23.01.2012 to which an explanation appears to have been
submitted. The report of the Commissioner, Vijayawada Municipal Commissioner is
self-explanatory.
21. Basing on these deviations, the learned Senior Counsel for respondents 3
and 4 could not justify the action of the respondents 3 and 4 but reminded this
Court's writ jurisdiction. It is well settled, that this Court, while
exercising its power of judicial review in respect of actions of the Municipal
authorities, is not discharging the police duties, but exercising its powers
given under the provisions of the Constitution and directing implementation of
laws made for larger public good. The powers of judicial review need not be
elaborated. He did not object either to the application of G.O.Ms.No.674 dated
29.12.2006 or of G.O.Ms.No.678 dated 07.09.2007 to the case of the petitioners.
The record also reveals that the provisional no-objection certificate issued by
the Fire and Emergency Services Department for construction of a super
speciality hospital building in premises bearing door No.33-18-13A, 14 and 15 is
subject to the conditions mentioned therein. As per the certificate, the
occupant load is mentioned as 20 in respect of ground floor and 40 each in
respect of ground, first, second, third and fourth floors. The said certificate
is only provisional and not final.
22. The approved Zonal Development Plan of Vijayawada, Guntur, Tenali,
Mangalagiri Urban Development Authority as notified in G.O.Ms.No.674 dated
29.12.2006 divides the main land use in 9 categories. In respect of residential
use zone under category-I, dispensaries and nursing homes are permitted on its
own. But on appeal to the Urban Development Authority, dispensaries/nursing
homes/health centres (20 bed)/ hospitals not treating contiguous diseases or
mental patients are permitted. Admittedly, the present constructions are in
residential use zone only. The provisional No-objection Certificate
issued by the Fire and Emergency Services Department indicates that the occupant
load is mentioned as 20 in respect of ground floor and 40 in respect of ground,
first, second, third and fourth floors. So, the occupancy of nearly 200 people
in and more in a hospital is not permissible under the Zoning Regulations in
respect of residential zone. Respondents 3 and 4 are running a Super Speciality
Hospital. Admittedly there is no permission from the Urban Development Authority
and permission for a hospital from the 2nd respondent alone is existing.
23. Thus, some constructions made by the respondents 3 and 4 are in violation
of the sanctioned plan issued by the 2nd respondent and violating the Zoning
Regulations. There is no final certificate from the Fire and Emergency Services
Department. The major deviations appear to be construction of 5th and 6th floors
(duplex), constructions in cellar with portions and absence of no objection
certificate from the Fire Department due to construction of two floors above the
permitted height covering all the road widening portion, running administrative
office and conference hall in cellar parking area and running a super speciality
hospital when only nursing home having less than 20 beds is permissible with
permission of Urban Development Authority and there is no permission from the
Urban Development Authority.
RELIEF:
24. The record of this case shows that the respondents 3 and 4 changed three
Counsel during their short journey in the case for reasons better known to them.
They made constructions in deviation of sanctioned plan when the Petitioners
have been objecting right from the beginning. The Corporation stood as a silent
spectator except issuing a notice once under Sec.452 of GHMC Act, 1955. The non-
chalant action of the respondents 3 and 4 in the face of constant vigilance of
the neighbours is a matter of grave concern to this Court and this Court wonders
whether the existing laws encourage such actions or defiance of law has become a
rule in the society. The respondents 3 and 4 are respectable and educated
persons in the society and society expects respect for law from them. The
discretionary power of the Commissioner to regularise unauthorised constructions
is meant to be exercised in cases of inevitability and where they do not
infringe neighbours' rights but not in cases of defiance. The authorities and
courts exist to protect law and give relief to the aggrieved in appropriate
cases. The Petitioners approached this Court in a helpless situation and by
entertaining their grievance and granting relief to them, this court is not
acting as 'Police' and is a total misunderstanding of the role of this court
and showing disrespect.
25. In Calcutta Corporation V. Mulchand1, the Hon'ble Supreme Court was
considering an appeal against the judgment of the High Court of Calcutta
affirming the order of the Municipal Magistrate, whereby he dismissed an
application filed by the appellant under Section 363 of the Calcutta Municipal
Act, 1983, for demolition of certain constructions on the ground that they had
been erected without the previous permission of the authorities and in
contravention of the prescriptions laid down in the building rules. The
observations made by the Hon'ble Supreme Court, while disposing of the case, are
apposite.
"13. The courts below were also influenced by the fact that there was no
complaint from the neighbours about the erection of the building. It must be
remembered that the building rules are enacted generally for the benefit of the
public, and where those rules have been violated and proceedings are taken for
an order for demolition of the building under Section 363 what has to be decided
is whether the breaches are of a formal or trivial character in which case the
imposition of a fine might meet the requirements of the case, or whether they
are serious and likely to affect adversely the interests of the public, in which
case it would be proper to pass an order for demolition.
Whether there has been a complaint from the public would not as such be material
for deciding the question, though if there was one, it would be a piece of
evidence in deciding whether the interests of the public have suffered by reason
of the breaches.
14. The position, therefore, is that the orders of the courts below are based
on mistakes and misdirections, and cannot be supported. The conduct of the
respondent in adopting a hide-and-seek attitude in completing the constructions
in deliberate defiance of the law calls for severe action. It would be most
unfortunate, and the interests of the public will greatly suffer, if the notion
were to be encouraged that a person might with impunity break the building rules
and put up a construction and get away with it on payment of fine."
26. This Court in Saddi Narasimha Reddi V. Commissioner, Municipal Corporation
of Hyderabad2, considered the case of construction in deviation of sanctioned
plan and upheld the order of the Municipal Corporation directing demolition. In
the said decision, this Court considered the above decision of the Hon'ble
Supreme Court. The learned Single Judge while considering the above
observations, held as follows:
"15. Building bye-laws in a Municipality belong to that category of inflexible
and inexorable laws of house-building the observance of which cannot be waived
normally either in prospect or retrospect by the municipal authorities. The
prohibitions contained in these building bye-laws are prohibitions against a
builder and for the benefit of the neighbourhood. They cannot therefore be
lifted by the Municipal Corporation. If Courts hold that even in such cases the
municipal authorities cannot demolish, it would amount to authorising the
municipal authorities to sanction departures of law which have injurious effects
on the health and well-being of all those that are living in the neighbourhood.
In other words, such a course of action would involve sanctioning inflicting of
injury on third parties which could never have been contemplated by the statute.
27. In 3 ACES V. M.C.H.3, a Full Bench of this Court considered the judgment
of the Hon'ble Supreme Court in Pratibha Co-operative Housing
Society Ltd. V. State of Maharashtra4 and extracted the following observations.
"The rules, regulations and bye-laws are made by the Corporations or development
authorities taking in view the larger public interest of the society and it is
the bounden duty of the citizens to obey and follow such rues which are made for
their own benefits."
28. The Full Bench further held that where public interest is involved and it
is found that there is violation of the provisions of the Act, Rules,
Regulations and Bye-laws made by the Corporations or developmental authorities,
it is permissible for the Court to take notice of the same and give effect to
them. It further held that when an illegality is brought to the notice of the
Court, particularly relating to public interest, the Court should take notice of
it and apply to the case. (Vide Mohamoud and Ispahani5).
29. Chapter 12 of the GHMC Act deals with building regulations. Section 451
of the GHMC Act deals with the inspection of buildings in course of erection,
alteration, etc. Section 452 empowers the Commissioner to issue a notice in
case of constructions made contrary to the provisions of the GHMC Act. Section
454 gives power to the Commissioner for enforcement of provisions concerning
buildings and works. These powers need not be exercised by the Commissioner
himself personally and he can exercise the powers through his officers. The
Supreme Court in Dr.G.N.Khajuria V. Delhi Development Authority6, took note of
such situations and observed in that case as follows:
"10. Before parting, we have an observation to make. The same is that a feeling
is gathering ground that where unauthorised constructions are demolished on the
force of the order of courts, the illegality is not taken care of fully inasmuch
as the officers of the statutory body who had allowed the unauthorised
construction to be made or make illegal allotments go scot free. This should
not, however, have happen for two reasons. First, it is the illegal action/order
of the officer which lies at the root of the unlawful act of the concerned
citizen, because of which the officer is more to be blamed than the recipient of
the illegal benefit. It is thus imperative, according to us, that while undoing
the mischief which would require the demolition of the unauthorised
construction, the delinquent officer has also to be punished in accordance with
law. This, however, seldom happens. Secondly, to take care of the injustice
completely, the officer who had misused his power has also to be properly
punished. Otherwise, what happens is that the officer, who made the hay when the
sun shined, retains the hay, which tempts other to do the same. This really
gives fillip to the commission of tainted acts, whereas the aim should be
opposite.
11. We, therefore, call upon respondent No.1 to make an enquiry and inform the
Court within three months as to who are the officers who had made the
unauthorised allotment and permitted unauthorised construction. On knowing about
this, such further orders would be passed as deemed fit and proper."
30. I may usefully refer the erudite observations of the learned single Judge
of this court made in 'Saddi Narasimha Reddy' case:
"20. Mr.Tej Rai Kapoor in the course of his argument has repeatedly stressed
the fact that in upholding the order of demolition, I would be upholding the
order of destruction of a building already constructed and that I should not
sanction such a course of action. This is an argument based on unexpressed
assumption of inviolability of the institution of 'property'. Proudhon
denounced "all property as theft". Marx no doubt criticised this view as
unscientific and as one coming out of Proudhon's poverty of philosophy.
Therefore is no doubt that possession and enjoyment of minimum of property is
indispensable condition for a meaningful existence of a modern civilized life
and therefore the institution of property should be adequately safeguarded. But
we must note that there can be no property outside the legal and social
framework. Any acquisition of property that a particular legal order does not
sanction should receive neither legal recognition nor legal protection. It is
this type of 'property' which can be truly called 'theft'. Petitioner's
unauthorised constructions, in my opinion, belong to that category. No one in
the name of 'property' should be allowed to endanger the rights of others. Such
'property' should not receive the same protection of legitimate property. This
argument of Mr.Tej Rai Kapoor must therefore be rejected."
31. For the aforesaid reasons, these writ petitions are allowed subject to
directions hereunder. The respondents 3 and 4 made constructions with an
undertaking on 06.05.2009 in WPMP.No.23360 of 2008 in W.P.No.17943 of 2008 given
to this court that their constructions would be subject to the result of the
writ petition and they would not claim equities, while taking time to file
counter-affidavit. In view of the violations and taking into consideration the
undertaking given by the respondents 3 and 4 to this court, they are given one
month time to bring the constructions made by them in consonance with the
building permission obtained by them in the presence of the officers of the 2nd
respondent and comply other statutory requirements, failing which the 2nd
respondent is directed to demolish the deviated constructions in order to bring
the constructions within the sanctioned permission without any further notice to
them and take action with respect to other statutory requirements and report
compliance to the Registrar (Vigilance) of this Court within two months
thereafter.
32. These writ petitions are accordingly allowed. No costs. Miscellaneous
Petitions pending, if any in these writ petitions, shall stand closed.
______________________________
A.RAMALINGESWARA RAO, J
Date:10.03.2014
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