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2006 DIGILAW 454 (AP)

Maganti Subrahmanyam v. K. Durga Das

2006-03-31

L.NARASIMHA REDDY

body2006
( 1 ) THIS Contempt Case is filed alleging that the respondents have undertaken demolition of the premises belonging to the petitioners on Mahatma gandhi Road (MG Road) Vijayawada, in utter disregard of the orders dated 6-1-2006 passed by this Court in W. P. M. P. No. 723 of 2006 in W. P. No. 596 of 2006. ( 2 ) THE petitioners state that the width of the M. G. Road of Vijayawada, according to the master plan, approved vide G. O. Ms. No. 958, dated 16-12-1969; was 80 feet, and thereafter, the master plan was not revised, either under the A. P. Town Planning act, 1920, or under the A. P. Land Areas (Development) Act, 1975, after Vijayawada municipality was upgraded as a Municipal corporation. Petitioners filed W. P. No. 596 of 2006 alleging inter alia that the 1st respondent issued public notice dated 26-12-2005, in the local daily newspaper, inviting objections for the proposed widening of the said road. They have also contended that the markings were made on the buildings of the petitioners indicating the extent, that will be effected in the road widening. They prayed for issue of writ of mandamus, to restrain the respondents from taking any action in the matter of widening of the M. G. Road, without there being any revised master plan and without following the guidelines issued by this Court in the orders dated 25-9-2002 in w. P. No. 18563 of 2002, or without following the procedure prescribed under the Land acquisition Act. ( 3 ) THE writ petition was admitted and an interim order was passed on 6-1-2006, directing that the respondents shall not demolish the premises of the petitioners or dispossess them, without following the procedure prescribed by law. ( 4 ) THE petitioners allege that even while the interim order passed by this Court was in force, the officials of the 2nd respondent have undertaken demolition of their premises. They plead that when they approached the 2nd respondent and apprised him of the orders of this Court, he did not heed to the request and proceeded with the demolition. They contend that the action of the 2nd respondent amounts to deliberate and wilful contempt of the orders of this Court. ( 5 ) ON 24-1-2006 the learned Standing counsel for the 2nd respondent took notice. Notice before admission was ordered to the 1st respondent. They contend that the action of the 2nd respondent amounts to deliberate and wilful contempt of the orders of this Court. ( 5 ) ON 24-1-2006 the learned Standing counsel for the 2nd respondent took notice. Notice before admission was ordered to the 1st respondent. Respondents 1 and 2 filed separate counter-affidavits. They are, almost verbatim, the same. ( 6 ) IN brief, the plea of the 2nd respondent is that a meeting was convened by the District Collector, Krishna, on 21-12-2005 with the heads of various departments, in the District and the proposals for widening of the M. G. Road was discussed. A decision was said to have been taken to the effect that the Randb department shall undertake laying of the road and that the Municipal Corportion of the Vijayawada, Gutur, Tenali and mangalagiri Urban Development Authority, would clear the required space, by negotiating with the owners of the properties. It is stated that steps were taken in accordance with Sections 146 and 147 of the Hyderabad municipal Corporation Act (for short the Act ), which apply to the Vijayawada municipal Corporation also. ( 7 ) THE 2nd respondent has referred to the various steps that have been taken subsequent to the issuance of the orders in G. O. Ms. No. 193, dated 1-5-2002, in relation to the widening of the road. He pleaded that during the course of survey, for widening of the roads, the particulars of various buildings were noted and the petitioners and several others were issued notices under Section 452 of the Act, to furnish details of their buildings together with their price and cost. It is stated that they were also requested to maintain the front open space, as per the Zoning regulations, and as per the rules in force. According to the 2nd respondent, the petitioners did not submit their explanations, even after issuance of notices and final notice under Section 636 of the Act was issued on 12-12-2005. It was alleged that the notices were not received by the petitioners and as such they were affixed on the wall in the front portion of the buildings. ( 8 ) THE 2nd respondent pleaded that the demolition was undertaken in pursuance of the proceedings initiated under sections 452 and 636 of the Act and the said demolition has nothing to do with the widening of the road. ( 8 ) THE 2nd respondent pleaded that the demolition was undertaken in pursuance of the proceedings initiated under sections 452 and 636 of the Act and the said demolition has nothing to do with the widening of the road. He ultimately states that if the Court comes to the conclusion that he has committed contempt of Court, the unconditional apology, tendered by him, may be accepted. ( 9 ) THE matter was heard at length on 17-3-2006. It was found that no allegations were made in the contempt case, against the 1st respondent. Therefore, the contempt case was closed against him. ( 10 ) SRI N. V. Suryanarayana Murthy, learned Senior Counsel appearing for the petitioners submits that apprehending highhanded action on the part of the respondents, the petitioners approached this court in the first week of January, 2006 and this Court was pleased to grant interim orders, protecting the rights of the petitioners. He, contends that even while the interim order was in force, and though the 2nd respondent was aware of it, he proceeded with the demolition of the building, causing extensive damage to the structure and monetary loss to the petitioners. He submits that the notices, said to have been issued under Sections 452 and 636 of the Act, are as vague as they could be, and that they have been invented to sustain an otherwise blatant act of contempt. He further submits that a reading of the complaint submitted by the officials of the Town Planning section against the petitioners herein, alleging that they have obstructed the demolition, belies the contention of the 2nd respondent that the demolitions were unrelated to the road widening. ( 11 ) THE matter was argued at length, upto some stage, by the learned Standing counsel for the 2nd respondent. Thereafter, the learned Advocate-General appeared and made extensive submissions on their behalf. The gist of their submission is that, much before the petitioners approached this Court, the 2nd respondent initiated action under Sections 452 and 636 of the Act and the demolitions, which are now complained of, have been carried in pursuance of the said proceedings. It is urged that the buildings owned by the petitioners on the M. G. Road, violate Zoning regulations, and when action was taken, in view of such violations, the petitioners are taking shelter under the orders of this court. It is urged that the buildings owned by the petitioners on the M. G. Road, violate Zoning regulations, and when action was taken, in view of such violations, the petitioners are taking shelter under the orders of this court. It is also pleaded that the petitioners have deliberately refused to receive the notice under Sections 452 and 636 of the act, and substituted service, as provided for under the provisions of the Act, has been effected. Learned Advocate-General has also submitted that the petitioners have filed a suit for claiming damages, and they can workout the remedies in that suit. ( 12 ) IT is a matter of record that the petitioners approached this Court by filing w. P. No. 596 of 2006, alleging that the respondents herein are taking steps to demolish their buildings, without following the procedure prescribed by law. Reference was made to the various steps that have taken place in this regard. After hearing the learned Counsel for the petitioners and learned Standing Counsel for the 2nd respondent, this Court passed interim order in W. P. M. P. No. 723 of 2006, on 6-1-2006. "learned Counsel appearing for the respondents submits that wherever the consent is given by the owners of the buildings/properties, their properties have been demolished for the purpose of road widening but where the landlords have not given consent the respondents are following due procedure prescribed in law under sections 146 and 147 of the Municipal corporation Act. Accordingly, the respondents are directed not to demolish or dispossess the petitioners without following due procedure prescribed in law. " ( 13 ) THE petitioners state that the copy of the order was served on the respondents. They contend that in spite of the same, the respondents proceeded to demolish their buildings to a substantial extent, on 17-1-2006, causing extensive damage. The fact, that the front portions of the buildings were demolished by the 2nd respondent; is not disputed. ( 14 ) IN his counter-affidavit, the 2nd respondent stated that the demolition has been undertaken in pursuance of proceedings initiated under Sections 452 and 636 of the act. The relevant portion in the counter- affidavit reads as under :para 7 : In reply to paragraph Nos. ( 14 ) IN his counter-affidavit, the 2nd respondent stated that the demolition has been undertaken in pursuance of proceedings initiated under Sections 452 and 636 of the act. The relevant portion in the counter- affidavit reads as under :para 7 : In reply to paragraph Nos. 7 and 8, i submit that I have high respect and regard to the orders passed by this hon ble Court and whenever I receive the orders I obey the same with due respect. I submit that the officials have removed some shutters as well as the protruding front elevation of the building as it is contrary to the building plan, without any approval and coming on the road drain is based on a notice dated 2-12-2005 issued by the corporation with respect to illegal constructions. " ( 15 ) INASMUCH as the demolition of the buildings of the petitioners in the portions, facing the road, is not denied, it needs to be seen, as to whether such demolitions are in violation of the orders of this Court, particularly in the context of the plea taken by the 2nd respondent, that the demolition is undertaken in pursuance of the proceedings initiated under Sections 452 and 636 of the Act. ( 16 ) SECTION 452 of the Act empowers the Municipal Corporation, to issue show cause notices to the owners of the building, in case, the erection of the building or execution of the work, in pursuance of the notice of commencement of construction, issued under Section 433; is commenced, or carried out, contrary to the provisions of the Act, or bye-laws made thereunder. Section 452 of the Act reads as under : "section 452 : Proceedings to be taken in respect of building or work commenced contrary to Act or bye-laws : (1) If the erection of any building or the execution of any such work as is described in section 433 is commenced or carried out contrary to the provisions of this Act or byelaws made thereunder, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under Section 426 shall (a) by written notice, require the person who is erecting or re-erecting such building or executing such work or has erected or re-erected such building or executed such work, on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down;or (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorized by him in that behalf, to show sufficient cause why such building or work shall not be removed, altered or pulled down. (2) If such person shall fail to show sufficient cause as required under clause (a) or (b) of sub-section (1), to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. " ( 17 ) THEREFORE, the basic requirement for invoking the provisions of Section 452 is that, a notice under Section 433 must have been issued by the owner of a premises, expressing his intention to undertake any addition, alteration or repairs to a building, and the construction carried out in pursuance of the same, is found to be contrary to the provisions of the Act, or bye-laws made thereunder. The notice under Section 452 must refer to the notice received by the Corporation, under section 433, from the owner of the premises, and the nature of deviations found in the construction. The notice under Section 452 must refer to the notice received by the Corporation, under section 433, from the owner of the premises, and the nature of deviations found in the construction. The language employed in section 452 mandates, that, the deviations must be referable to the provisions of the act as well as the bye-laws made thereunder. ( 18 ) IN the instant case, the notices dated 2-12-2005, said to have been issued by the 2nd respondent, do not refer to any of these aspects. The notice was issued only in the context of an observation made during the course of marking the buildings of M. G. Road, in the context of widening of it. Reference is made to lack of minimum front set back, as per the Zoning Regulations. A cyclostyled notice is issued to all the petitioners. It reads as under :"in the reference cited, Government issued orders for confirming certain variations to Master Plan for Vijayawada City in respect of the road width of Mahatma gandhi road from 80 ft. to 120 ft, vide M. M. P. No. 2/2001/vja of VGTMUDA. It has been decided to implement the master plan in respect of M. G. Road and in the course of proposing for the same, a detailed survey has been taken up and necessary markings were given. In the course of making markings it is observed that the property bearing D. No. 27- 37-20, owned by Sri K. Padmanabham, S/o. Seshagirirao, Vijayawada of M. G. Road is not having proper set backs as per rules. The minimum front set back is also not maintained in accordance to the Zoning regulations in force or even according to the Zoning Regulations previously in force in respect of 80 ft. road. The occupants of the said property were informed orally and in writing to furnish the copies of the approved plans to verify the same, but they have not furnished. However, taking into consideration of the rules in force as on date and also the rules as was existed previously, it is found that the said construction is not only in violation to the set backs but also the front portion is slightly encroached on to the drain portion. However, taking into consideration of the rules in force as on date and also the rules as was existed previously, it is found that the said construction is not only in violation to the set backs but also the front portion is slightly encroached on to the drain portion. Sri K. Padmanabham, S/o. Seshagirirao, vijayawada is therefore, called upon to furnish the approval details of the construction at D. No. 27-37-20 of M. G. Road and also to show-cause as to why the said structures should not be removed. This notice may be treated as notice issued under Section 452 of HMC Act and a reply shall be furnished within 7 days from the date of receipt of this notice, failing which further action will be taken as per rules. " ( 19 ) IT is rather astonishing to note that the 2nd respondent did not verify, as to whether the constructions undertaken by the petitioners were covered by any sanctioned plans. He did not even refer the provision in the Zoning Regulation, much less the requirement under the Regulation, on the one hand, and the nature of deviation, in respect of the concerned building. This notice was followed by another set of notices, issued under Section 636 of the Act. ( 20 ) THE question, as to whether the notice issued by the 2nd respondent under Sections 452 and 636 are legal and valid; has to be considered in any proceedings, in which they are assailed. The reference to the said notices, in this contempt proceedings, is only to see, as to how far they can justify the demolition undertaken by the 2nd respondent. ( 21 ) CONTEMPT proceedings are quasi criminal in nature, and before finding the 2nd respondent guilty in such proceedings, close and strict scrutiny needs to be undertaken. If there exists any doubt, it must be read in favour of the contemnor. ( 22 ) THE 2nd respondent stated that the demolition undertaken by him was, in pursuance of the proceedings initiated by him under Section 452. Assuming that it is to be true, it is not as if any notice was served upon the petitioners between 6-1-2006 and the date of demolition. ( 22 ) THE 2nd respondent stated that the demolition undertaken by him was, in pursuance of the proceedings initiated by him under Section 452. Assuming that it is to be true, it is not as if any notice was served upon the petitioners between 6-1-2006 and the date of demolition. The notice, said to have been issued under section 636, is dated 12-12-2005, and the same is said to have been pasted to the premises of all the petitioners, on the same date. It gave 24 hours time to the petitioners "to restore the statutory set back in the front side to minimum 6 meters". If the 2nd respondent was so meticulous and serious about the matter, the demolition could have been taken up on 13th or 14th December, 2005. He felt the necessity that the notice, which was submitted for his approval on 12-12-2005, is signed and approved by him on the same day and the substituted service must be effected on the very date. Naturally, such a course of action pre-supposes that utmost urgency existed in the matter. However, nothing happened for more than one month. In the meanwhile, this Court granted an interim order. ( 23 ) IN case, the 2nd respondent was of the view that further action needs to be taken in pursuance of the notice dated 12-12-2005, he ought to have approached this Court with a proper application, and proceeded further, depending on the nature of the orders passed by this court. However, the 2nd respondent did not care, for the orders of this Court and proceeded to demolish the building of the petitioners. ( 24 ) THE manner, in which notice under sections 452 and 636 are said to have been served; is rather intriguing. Attested copies of such notices issued to all the petitioners are placed before this Court. One J. Phani Srinivasa Rao, said to be chainman, working in Town Planning section, was entrusted with the task of serving the said notices. It needs to be mentioned that the notices were prepared, signed and entrusted for service, on the same day. The Chainman, made endorsements to the effect that, when he made an attempt to serve the notices, the respective owners have refused to receive, and thereafter, he pasted the notices on the wall, beside the entrance, under a panchanama. It needs to be mentioned that the notices were prepared, signed and entrusted for service, on the same day. The Chainman, made endorsements to the effect that, when he made an attempt to serve the notices, the respective owners have refused to receive, and thereafter, he pasted the notices on the wall, beside the entrance, under a panchanama. The interesting part of the matter is that five witnesses by name k. Koteshwar Rao, C. Venkateshwar Rao, k. Nageshwar Rao, P. Appa Rao and k. U. M. Rao have acted as witnesses, in respect of all the notices, and surprisingly, on 2-12-2005, as well as 12-12-2005. It is also interesting to note that the 2nd respondent has arranged for taking of photographs, when the alleged Chainman is said to have pasted the notices. Even when, asked by this Court, the respondents failed to place necessary record, disclosing the movement of the file, in the matter of demolition of such valuable properties. ( 25 ) THE plea of the respondents that the demolition has nothing to do with the widening of the road, is completely belied by the complaint submitted by his subordinates against the petitioners, when obstructions were noticed during the course of demolition. On 17-1-2006 one Ch. Uma maheshwara Rao, of Town Planning Section filed a complaint before the Station House officer, S. R. Peta Police Station. It is to the effect that at 4:00 p. m. , on 17-1-2006, the complainant and other officials have undertaken demolition as per the "directions issued by the Commissioner of Municipal Corporation" for the purpose of "widening of the road" and that the petitioners herein have obstructed them while discharging the official duties. The accused were said to have used abused language and acted in a highhanded manner. This complaint clearly discloses that the demolitions have been undertaken, (a) for the purpose of widening of the road, and (b) on the instructions issued by the 2nd respondent. ( 26 ) WITH a view to waterdown the impact of the complaint, the 2nd respondent issued memo dated 18-3-2006 to Sri Uma maheshwara Rao, directing the latter, to show-cause, as to why disciplinary proceedings shall not be initiated against him, for submitting the complaint, without taking specific permission. The 2nd respondent has also filed an additional affidavit, referring to these, and with an attempt to sustain his action. The 2nd respondent has also filed an additional affidavit, referring to these, and with an attempt to sustain his action. ( 27 ) THE discussion undertaken above clearly reveals that the 2nd respondent had flouted the orders of this Court and deliberately demolished the buildings, in utter violation of the orders of stay. This court also finds that attempts were made to cover up such deliberate and wilful act, by taking recourse to various steps. If an important and responsible officer resorts to such acts, there is every likelihood of the whole concept of Rule of Law, becoming redundant, and the efficacy of the Judiciary being reduced to deplorable levels. The chain of events, referred to in the previous paragraphs, discloses that the 2nd respondent did not have any regard or care, much less respect, for the orders of this Court and he did not feel the order as any hindrance for his fanciful acts. ( 28 ) FOR the foregoing reasons, the 2nd respondent is found guilty of Contempt of Court. Though he deserved to be inflicted the maximum punishment, this court takes a lenient view of the matter, and imposes the punishment of simple imprisonment for a period of one month, and imposes a fine of Rs. 1,000/- (Rupees one thousand ). In default of payment of fine, he shall be liable to undergo simple imprisonment, for a period of fifteen days. The sentence against the 2nd respondent is suspended, for a period of four weeks.