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2020 DIGILAW 855 (AP)

Bolla Siva Venkateswara v. State of Andhra Pradesh

2020-12-23

D.V.S.S.SOMAYAJULU

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ORDER : D.V.S.S. Somayajulu, J. 1. This writ petition is filed for a writ of Mandamus declaring the inaction of the official respondents in not considering the petitioners' representations as illegal, arbitrary and for directing the respondents not to regularize the illegal portion of the building said to have been constructed by the respondents and for other reliefs. 2. This Court has heard Sri. Raviteja Padiri, learned counsel for that petitioners and Sri. M. Manohar Reddy, standing counsel for second respondent, Government Pleader for Municipal Administration for respondent No. 1 and Sri. K. Jyoti Prasad for the unofficial respondents. 3. Counsel for the petitioners argues that the writ petitioners are the owners of property, which is in a group housing called Ganesh Residency. Petitioner No. 1 acquired the property called GF-1 of Ganesh Residency through a sale deed dated 13.05.2015. Petitioner No. 2 has acquired the property called SF-1 of Ganesh Residency on 30.03.2015 through a registered sale deed. Learned counsel points out that these issues are not in dispute. He points out that the respondent Nos. 3 and 4 have illegally constructed a flat on the 3rd floor of the building in the year 2016 without an approved plan. As a result of this, learned counsel submits that the parking area, water, drainage and all other facilities/amenities, which are shared commonly are depleted and are not available. He also submits that because of lack of parking area, the cars are being parked outside and water facility is also drastically reduced particularly in summer. Apart from that, he submits that an unauthorized construction should not be approved at all. He points out that the petitioners have submitted their representations periodically as detailed in the writ petition and that the respondents are not considering the same. Learned counsel also argues that a direction should be given to the respondents not to regularize the illegal portion constructed on the 3rd floor. Learned counsel points out that even though there is a scheme for regularization of unauthorized constructions issued by the Government vide G.O. Ms. No. 14 dated 04.01.2019, he argues that the said scheme is not applicable because of class 7(i) which is as follows: "Penalization cannot be made of sites under legal litigation/disputes regarding ownership of the site/building". 4. Learned counsel points out that even though there is a scheme for regularization of unauthorized constructions issued by the Government vide G.O. Ms. No. 14 dated 04.01.2019, he argues that the said scheme is not applicable because of class 7(i) which is as follows: "Penalization cannot be made of sites under legal litigation/disputes regarding ownership of the site/building". 4. He is relying upon case law which is submitted along with a written note and argues that once there is a dispute, the Building Penalization Scheme will not apply. He points out that on the basis of case law, the respondents should take all necessary steps to demolish an illegal construction. He also argues that the consent of the owner is necessary before the modification of a plan is given. Lastly, he submits that the rules of natural justice are applicable and as the order has consequences for the petitioners, they should be heard before the Building Penalization Scheme application is processed and decided upon. This is the sum and substance of the submissions made by the learned counsel for the petitioners. 5. In reply to this, Sri. Manohar Reddy learned standing counsel argues that it is a fact that the flat in question in the third floor is not an authorized construction. However, he submits that this was constructed simultaneously with the approved building and the same was completed in the year 2015. He points out that the construction of the so-called un-approved flat was completed even before the sale to the petitioners. Learned standing counsel argues that the petitioners, who have purchased their flat after the completion of the construction in the third floor is not completed, cannot now raise an objection. He also argues that there is no traffic problem, parking problem, water problem etc. Lastly, he submits that an application under the provisions of G.O. Ms. No. 14 was submitted and the same is still pending for scrutiny. He points out that the application will be considered and disposed of on its own merits. 6. Sri. K. Jyoti Prasad, learned counsel for un-official respondents filed his counter. His arguments are also similar. However, he submits that there is close business connection between the first petitioner and respondent No. 5 and that for certain extraneous reasons, the representations are given and the present writ petition is filed to harass the un-official respondents. 6. Sri. K. Jyoti Prasad, learned counsel for un-official respondents filed his counter. His arguments are also similar. However, he submits that there is close business connection between the first petitioner and respondent No. 5 and that for certain extraneous reasons, the representations are given and the present writ petition is filed to harass the un-official respondents. He states that there are a lot of business dealings between the petitioners and relies upon the invoices, statements which are filed. He also argues that the construction of the so-called illegal flat was completed by the time the first petitioner purchased the property. He points out that no objection was raised when the said property was sold. He also raises an issue that there is no explanation for the delay between the years 2016 to 2018. He also argues the fact that there are depletion of the resources or the facilities including the parking are not proved. Therefore, learned counsel argues that the petitioners are not made out a case for interference. He also argues that it is for the Municipal Corporation to take action on the applications made for regularization. He points out that the said G.O. has not been challenged and unless and until the respondents take a final decision, the petitioners cannot file a writ or ask for a prayer that the building should not be regularized. 7. This Court, after hearing all the learned counsel, notices that there is one essential disputed question of fact in this case namely the date, month and year in which the disputed structure was constructed. The respondents uniformly state that the disputed structure was completed by the date the petitioners have purchased their apartments. They assert that the disputed structure was in place by or before 2015, whereas the petitioners assert that it was done in the year 2016. This is a fact which cannot be decided by a writ Court exercising jurisdiction under Article 226 of the Constitution of India. 8. Apart from this, this Court also notices that the Building Penalization Scheme was introduced by G.O. Ms. 14 dated 04.01.2019. This scheme is not the subject matter of the challenge. Therefore, this Court is of the opinion that the petitioners at this stage cannot as a matter of right pray that the building should not be regularized. The decision under the scheme is not yet taken. 9. 14 dated 04.01.2019. This scheme is not the subject matter of the challenge. Therefore, this Court is of the opinion that the petitioners at this stage cannot as a matter of right pray that the building should not be regularized. The decision under the scheme is not yet taken. 9. As far as the right of the petitioners to be heard before the building is regularized, this Court holds that the petitioners cannot as a matter of right demand that they should be heard. Rules of natural justice are not cast in a straight jacket formula. They would depend on the facts and circumstances of each case. Administrative Authorities like the Municipal Corporation cannot be converted into quasi judicial authorities and take every decision after "hearing" the parties. They should have a certain amount of liberty to take their decisions. However, since the petitioners have submitted representations, the respondents are in the opinion of this Court under an obligation to consider the objections raised by the petitioners. This Court is of the opinion that the rules of natural justice would be complied with if issues raised by the petitioners are considered and then the application for Building Penalization Scheme is processed/decided. 10. Coming to the case law relied upon by the petitioners, this Court is of the opinion that the issue of a "dispute" that is raised on the basis of case law is not really applicable. Time and again, the Hon'ble Supreme Court of India has said that in interpreting the judgments, the fact should also be considered. A difference in one fact can lead to a fundamental difference in the interpretation of a judgment and its applicability to subsequent cases. A judgment is an authority of what it decides and not for what logically flows from it. This is the law as it stands. The following passage from State of Orissa v Sudhansu Sekhar Misra and Ors. : AIR 1968 SC 647 is very relevant. A judgment is an authority of what it decides and not for what logically flows from it. This is the law as it stands. The following passage from State of Orissa v Sudhansu Sekhar Misra and Ors. : AIR 1968 SC 647 is very relevant. "Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all." 11. Therefore, the Hon'ble Supreme Court of India on more than one occasion has sounded a caution that judgments should be interpreted on the basis of the facts on which they are based. The judgment cited by the learned counsel like Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority : (1988) 2 SCC 338 is a judgment under the Arbitration Act, 1940. Canara Bank and others v. National Thermal Power Corporation : (2001) 1 SCC 43 is an issue relating under the dispute between a Government Department and a public sector undertaking, and the Hon'ble Supreme Court is dealing with a compulsory arbitration mechanism. In Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad and Ors. : 1979 (3) SCC 123 , the Hon'ble Supreme Court was dealing with a dispute under the Cooperative Societies Act. The Hon'ble Supreme Court held that the dispute involves the assertion of a claim and a denial by the other. This is like the finding in Inder Singh Rekhi's case (supra). 12. : 1979 (3) SCC 123 , the Hon'ble Supreme Court was dealing with a dispute under the Cooperative Societies Act. The Hon'ble Supreme Court held that the dispute involves the assertion of a claim and a denial by the other. This is like the finding in Inder Singh Rekhi's case (supra). 12. In Janata Dal v. H.S. Chowdhary and others : (1992) 4 SCC 305 , the Hon'ble Supreme Court defined 'a litigation' as a legal action including all proceedings initiated in a Court of law. These decisions have been pressed into service for the argument of the learned counsel on the point whether clause 7(i) of the G.O. No. 14 applies to the facts of the case. It is his contention that in view of the litigation, Building Penalization Scheme is not applicable. A dispute as per him involves the assertion and a denial of a claim. 13. To decide this issue, the clause is once again reproduced here "sites under legal litigation/dispute regarding the ownership of the site/building". 14. This clause cannot be read in isolation. The heading of Clause 7 is as follows: "penalization not to apply to certain cases". Penalization of unauthorized constructions shall not be considered in the following cases and in cases where Public Interest and safety are likely to be affected viz., the object of the scheme and the exclusions are to be seen as a whole. 15. Therefore, if all the clauses are read together, it is clear that this clause will only apply when the site is under a litigation or a dispute regarding the ownership of the site or the building". 16. In terms of the applicable Municipal Laws, for sanction of a building plan, the owner has to submit prima facie proof of his title in the form of an attested copy of sale deed. As per the settled law on the subject, including the decisions of this High Court, if there is a clear "dispute" about the right of a party to the property while processing the building plan, the Municipal Authorities can seek a legal opinion on the title and defer the granting of the approval. If the dispute is serious, the Commissioner or the Approving Authority can defer the granting of permission and ask the parties to establish their title. If the dispute is serious, the Commissioner or the Approving Authority can defer the granting of permission and ask the parties to establish their title. Examined against this backdrop, this Court is of the opinion that the language used in this clause cannot be extended to every dispute or point that is raised by a contesting party. In the opinion of this Court, the site should be under a litigation regarding the ownership of the site or the building. The word litigation and dispute are followed by the words "regarding ownership." Hence, this would mean a dispute regarding the ownership of the site or the building. Other disputes are not covered by this clause. The first rule of interpretation is the "plain/grammatical" meaning rule. This rule leads the Court to this conclusion. 17. Therefore, this Court holds that the legal litigation/dispute that is mentioned in this clause would only mean a litigation/dispute with regard to the ownership of the property. In fact, in Janata Dal's case (supra) relied upon by the learned counsel for the petitioners, the word litigation has been held to mean a legal action including of proceeding initiated in a Court of law for enforcement of a right or seek a remedy. Therefore, if there is a legal action with regard to the ownership of the site or the building, the Municipal Authorities can consider the legal dispute and decide on the penalization. An objection like in the present case is not covered by the said claim. The contention raised by the learned counsel for the petitioners is therefore not sustainable. 18. As far as the rules of natural justice are concerned, this Court has also held that if the petitioners representations are considered, the same would be met. The case law on the demolition of illegal structures and a duty cast on the Municipal Corporation etc., are issues which are not in doubt. Neither this Court nor any Court in the land can ignore the same. However, the fact remains that the Government itself introduced a scheme for regularization of unauthorized structures. As long as the said scheme is in operation and the application is pending, this Court cannot state that the flat is unauthorized and should be demolished. It is for the authorities to decide the same. 19. However, the fact remains that the Government itself introduced a scheme for regularization of unauthorized structures. As long as the said scheme is in operation and the application is pending, this Court cannot state that the flat is unauthorized and should be demolished. It is for the authorities to decide the same. 19. For all the reasons, this Court is of the opinion that the writ petition has to be dismissed. However, it is hoped that the application for penalization which has been pending for long is disposed of by a speaking order considering the contentions raised by the petitioners within a period of four weeks from the date of receipt of a copy of this order. 20. With these observations, the writ petition is dismissed. No order as to costs. 21. As a sequel, the miscellaneous petitions if any shall stand dismissed.