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2022 DIGILAW 1203 (AP)

Dhanekula Harish v. State of Andhra Pradesh

2022-11-04

RAVI NATH TILHARI

body2022
JUDGMENT : 1. Heard Sri V.Raja, learned counsel representing Sri A.K.Kishore Reddy, learned counsel for the petitioner, learned Government Pleader for Municipal Administration for the respondent No.1 and Sri G.Naresh Kumar, learned counsel, representing Sri M.Manohar Reddy, learned Standing Counsel for the respondent Nos.2 to 4. 2. The prayer in the writ petition is as under:- “It is therefore prayed that this Hon’ble Court may be pleased to issue a Writ or order or direction more particularly one in the nature of WRIT OF MANDMUS declaring the action of the Respondents more particularly Respondent Nos.2 to 4 in interfering with our peaceful possession and enjoyment in construction activities that are being carried out in D.No.18-345 (old D.No.19-127), Yenamalakuduru, YSR Tadigadapa Municipality, Krishna district and further threatening to demolish the existing constructions without issuing any notice as illegal, arbitrary, unconstitutional and consequently direct the Respondents particularly Respondent Nos.2 to 4 not to interfere with the building construction activities and not to demolition any existing structures without following due process of law and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 3. Thus the action of the respondent Nos.2 to 4 is being challenged being interference in raising of the construction by the petitioner after obtaining building permission, without following due process of law. 4. Sri V.Raja, learned counsel representing Sri A.K.Kishore Reddy, learned counsel for the petitioners submits that the petitioners are the builders and they have entered into agreement with the owner for construction of the building. The building permit order dated 24.02.2022 was granted in the name of the owner as also the petitioner builders, but the respondent Nos.2 to 4 are interfering in the raising of the construction without following due process of law. 5. The building permit order dated 24.02.2022 was granted in the name of the owner as also the petitioner builders, but the respondent Nos.2 to 4 are interfering in the raising of the construction without following due process of law. 5. Sri G.Naresh Kumar, learned counsel representing the respondent Nos.2 to 4, on the basis of written instructions from the Commissioner of the concerned Municipality submits that a notice bearing UC.No:06/2022, dated 19.09.2022 under the provisions of Sections 217 (1)&(2) and 218 (1)&(2) of the Andhra Pradesh Municipalities Act, 1965 applicable to the concerned Municipality was issued to the owner Smt. Gali Bindhu Madhavi as also to the petitioners vide registered post dated 21.09.2022, directing them to stop further construction and to show sufficient cause as to why the deviation/violation and unauthorized construction should not be removed/altered or pulled down within the specified time from the date of receipt of the notice. The said notice specifically mentioned about the deviations/violations identified. However, no response was filed before the Commissioner of the Municipality. 6. The copy of the notice through registered post along with the copy of the postal receipt has been placed before this Court and a copy thereof has been given to the learned counsel for the petitioners. 7. The petitioners are not the owners, but the builders and their case is that they have entered into an agreement for construction of the building with the owner. The petitioners are claiming opportunity of hearing by issuance of notice and also pursuant to the notice dated 19.09.2022 when it was so informed as aforesaid. 8. It is relevant to reproduce Sections 217 and 218 of the Andhra Pradesh Municipalities Act, 1965 as under:- “217. Power to require alteration of work:- (1) If the Commissioner finds that the work— (a) is otherwise than in accordance with the plans or specifications which have been approved; or (b) contravenes any of the provisions of this Act or any bye-law, rule, order or declaration made thereunder, he may, by notice, require the owner of the building within a period stated either— (i) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans or provisions; or (ii) to show cause why alterations should not be made. (2) If the owner does not show cause as aforesaid, he shall be bound to make the alterations specified in such notice. (3) If the owner shows cause as aforesaid, the Commissioner shall by an order cancel the notice issued under sub-Section (1), or confirm the same subject to such modifications as he may think fit.” Section 218:- Stoppage of work endangering human life:-- Notwithstanding anything in any of the preceding Sections the Town Planning Officer may, at any time, stop the construction or reconstruction of any building if in his opinion the work in progress endangers human life and shall report the fact to the Commissioner who shall have powers to pass such orders as he thinks fit for reasons to be recorded in writing.” 9. A bare perusal of Section 217 shows that if the Commissioner finds that the work, (a) is otherwise than in accordance with the plans or specifications which have been approved; or (b) Contravenes any of the provisions of the Act or any bye-law, rule, order or declaration made there under, he may, by notice, require the owner of the building within a period stated either to make such alterations as may be specified in the notice with the object of bringing the work into conformity with the said plans or provisions or to show cause why the alterations should not be made. If the owner does not show cause, he shall be bound to make the alterations specified in the notice. But, if he shows cause, the Commissioner shall pass an order either cancelling the notice or conforming the notice subject to such modifications as he may think fit. 10. Section 217, therefore requires giving of the notice to the owner and it is the owner who has to show cause. It does not require giving of the notice or the opportunity to show cause to any person other than the owner. 11. The petitioners own case is that they are not the owners but they entered into an agreement for building construction with the owner. 12. It does not require giving of the notice or the opportunity to show cause to any person other than the owner. 11. The petitioners own case is that they are not the owners but they entered into an agreement for building construction with the owner. 12. So far as the order of stoppage of work under the same notice is concerned in view of Section 218 of the Andhra Pradesh Municipalities Act, the same may be given to the person raising the construction and consequently the petitioner might have been served with the notice for stoppage of work but so far as the show cause under Section 217 is concerned, the petitioners are not entitled for the notice nor for any opportunity of hearing. It is only the owner, who is so entitled. 13. Section 228 of the Andhra Pradesh Municipalities Act is being reproduced as under:- “228. It is only the owner, who is so entitled. 13. Section 228 of the Andhra Pradesh Municipalities Act is being reproduced as under:- “228. Demolition or alteration of building work unlawfully commenced, carried on or completed:- (1) If the Commissioner is satisfied— (i) that the construction or reconstruction of any building or well-- (a) has been commenced without obtaining the permission of the Commissioner or the Chairperson as the case may be, or where an appeal has been made to the council, in contravention of any order passed by the council; or (b) is being carried on, or has been completed, otherwise than in accordance with the plans or particulars on which such permission or order was based; or (c) is being carried on, or has been completed, in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye laws; or (ii) that any alterations required by any notice issued under Section 217 have not been duly made; or (iii) that any alteration of or addition to any building or any other work made or done for any purpose into or upon, any building, has been commenced or is being carried on or has been completed in breach of Section 227, he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as in the opinion of the said officer, has been unlawfully executed or to make such alterations as may, in his opinion, be necessary to bring the work into conformity with the Act, bye-laws, rules, direction or requisition as aforesaid or with the plans and particulars on which such permission or order was based; and may also direct that until the said order is complied with, the owner or builder shall refrain from proceeding with the building or well. (2) The said officer shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well, together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (2) The said officer shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well, together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (3) If the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as [he thinks fit] to make, and such order shall then be binding on the owner.” 14. A perusal of Section 228 of the Act shows that if the Commissioner is satisfied regarding clause (i), (ii) i.e. in cases where the notice has been issued under Section 217 but not complied with or clause (iii), he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as has been unlawfully executed or to make such alterations to bring the work into conformity with the Act, bylaws, rules, directions or requisition or with the plans and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building. 15. Section 228 (1) therefore confers the power on the Commissioner to make a provisional order requiring the owner or the builder to refrain from proceeding with the building. But sub-Section (2) provides for service of copy of the provisional order under sub-Section (1), to the owner of the building only together with a notice, requiring him to show cause within a reasonable time, as to why the provisional order should not be confirmed. Under sub-Section (3) of Section 228, if the owner fails to show cause to the satisfaction of the Commissioner, the order may be confirmed with or without modifications. 16. Therefore, under Section 228 also, though by the provisional order passed under Section 228 (1), the owner or the builder is required to do or to restrain from doing the acts mentioned therein, but the provision for service of the copy of the provisional order and the show cause are confined only to the owner, by conscious omission, by the legislature, of the expression ‘builder’ in sub-sections (2) and (3) of Section 228, which expression is used only in sub-section (1). It is only the owner who has the right to show cause and submit reply under Section 228 use of different expressions ‘owner’ and ‘builder’ in Section 228 (1) is also indicative of the fact that the ‘builder’ is not covered in the expression ‘owner’, unless the builder & the owner are one and the same person. 17. The notice/provisional order was sent to the owner as well and it is for the owner to show cause. It is not known to the petitioners if the owner has submitted the reply or not. 18. Even if the provisional order/notice is sent to the petitioner as well, that would not confer any right in them to show cause in view of Section 217 and 228 (2)&(3) though they are bound by such notice to stop the construction work under sub-section (1) of Section 228 of the Act. 19. In view of the provisional order/notice, it cannot be said that the action of the authorities of the Municipality, in stopping the construction work is without any authority of law or without following any due process. 20. The writ petition is therefore dismissed. 21. The dismissal of the writ petition however is without prejudice to the right of the owner to submit reply to the notice/provisional order before the competent authority as also without prejudice to the right of the owner, to challenge the said notice or/and the action of the respondents as per law, if so advised. 22. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.