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2022 DIGILAW 805 (AP)

Tadavarthy Kishore v. State of Andhra Pradesh

2022-08-26

RAVI NATH TILHARI

body2022
JUDGMENT 1. Heard Sri K. Ravi, learned senior counsel, assisted by Sri Kirthi Teja Kondaveeti, learned counsel for the petitioners, Sri Katta Sudhakar, learned AGP for Municipal Administration, representing respondent No.1, Sri G. Naresh Kumar, representing Sri M. Manohara Reddy, learned counsel for respondent No.2 and Sri Kasa Jagan Mohan Reddy, learned counsel for respondent No.3. 2. With the consent of the learned counsels for the parties, the writ petition is being decided at the admission stage without calling for counter affidavit. 3. This writ petition has been filed under Article 226 of the Constitution of India for the following reliefs: "...to declare the Notices bearing No.871/1073/VMC//UC/2022, dtd. 11/8/2022 and 871/1073/VMC/UC/2022, dtd. 23/8/2022 issued by the 2nd respondent wholly illegal, arbitrary, and violative of Articles 14 and 21 of the Constitution of India and consequently declare that the petitioners are not liable for demolition of the building constructed by the petitioners and pass such other order or orders....." 4. Sri K. Ravi, learned senior counsel for the petitioner, submits that the impugned order dtd. 11/8/2022 has been passed without application of mind and in cyclostyle manner. He submits that the 1st paragraph of the impugned order mentions that the petitioner did not file any reply to the show cause notice/the provisional order, whereas in the second paragraph it has been mentioned that the reply given by the petitioner is not satisfactory and contrary to provisions of rules in force. He submits that the reply was filed by the petitioner on 1/8/2022 though admitting that there were some minor deviations and that he will regularize the same in future. He further submits that the order was passed under Sec. 452 (2) & 461(2) of APMC Act 1955 and under Sec. 115(3) of APCRDA Act, 2014, which is revisionable under Sec. 679 of the APMC Act 1955 and also appealable under Sec. 115 (7) of APCRDA Act 2014 for which there is period of limitation of 15 days from the date of service of the order which was served on 16/8/2022 which has not yet expired, but in spite thereof, the officials of the respondents 2 and 3 are approaching the subject property of the petitioners for demolition. 5. Sri Kasa Jagan Mohan Reddy, learned counsel for respondent No.3, submits that though in the first paragraph of the impugned order dtd. 5. Sri Kasa Jagan Mohan Reddy, learned counsel for respondent No.3, submits that though in the first paragraph of the impugned order dtd. 11/8/2022 it is mentioned that the petitioner did not file reply, but his reply was considered as is evident from the second paragraph of the order. He further submits that in the reply dtd. 1/8/2022 the petitioner admitted the deviations and so far as regularization is concerned, there are no rules and no scheme for the present. With respect to the petitioners' right to appeal, the same has not been disputed as also that the period of limitation has not expired, but he submits that the Tribunal under the said Act before which the appeal lies, has not been constituted. 6. I have considered the submissions advanced by the learned counsels for the parties. 7. A perusal of the impugned order dtd. 11/8/2022, clearly shows non-application of mind. In the first paragraph it is stated that the reply was not submitted and in the second paragraph it is mentioned that the reply given is not satisfactory and that too without disclosing any reason as to how and why the explanation of the petitioners was not satisfactory. The order as passed is a cyclostyle order. The explanation offered by the petitioners ought to have been considered. 8. In Poonamchand v. Greater Hyderabad Municipal Corporation, 2013 (2) ALT 517 (S.B) this Court has held in para-7 as under: "7.A perusal of the impugned notice shows that respondent No. 1 has not dealt with the explanation of the petitioner and has rejected the same with a cryptic observation that the same is not satisfactory and "it may not be considered". In the opinion of this Court, the very purpose of issuing a notice under Sec. 452(1) of the Act is to give an opportunity to a person, who has constructed the building in an illegal or unauthorised manner, to submit his explanation. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, that respondent No. 1 is not entitled to proceed further. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, that respondent No. 1 is not entitled to proceed further. Unless the Commissioner refers to the contents of the explanation and gives reasons for coming to the conclusion that the explanation is not satisfactory, he cannot proceed with further action and issue notice under Sec. 636 of the Act. Failure to deal with the explanation renders the very purpose of issuing notice nugatory." 9. In K. Ashok Kumar v. Greater Hyderabad Municipal Corporation, 2013 (2) ALT 517 (S.B) this Court held in paras-2 & 3 as under: "2. Sec. 636 of the Act gives power to the Commissioner to require any construction made without obtaining necessary permission to be removed and in case the person to whom such a direction was issued by the Commissioner ignores or fails to remove any structure within the time specified, the said task will be carried out by the corporation at the expense of the said individual. It is not in dispute that the petitioners have been issued a notice in terms of Sec. 452 of the Act on 31/7/2012 for which a detailed reply has been filed by the petitioners on 16/8/2012. They raised several objections. Whether those objections are tenable or otherwise would be decided by the person who is concluding the exercise in accordance with Sec. 636 of the Act. Whereas the relevant portion of the impugned order reads as under: "the reply submitted by you vide reference 3rd cited in response to the show-cause notice has been examined and the same is not found satisfactory." "3. To say the least this is most unsatisfactory way of deciding an issue. Every order must contain the reasons for the conclusion arrived thereat. It is the reasons which provide the links to the conclusions. The relevance of those reasons must lend support to the conclusion. The expressions "found not satisfactory" are reflective of the conclusion but, not the reason. As to why the explanation offered by the petitioners is not satisfactory, forms part of their process of reasoning." 10. It is the reasons which provide the links to the conclusions. The relevance of those reasons must lend support to the conclusion. The expressions "found not satisfactory" are reflective of the conclusion but, not the reason. As to why the explanation offered by the petitioners is not satisfactory, forms part of their process of reasoning." 10. Further, the Full Bench of this Court in ACES, Hyderabad v. Municipal Corporation of Hyderabad, 1994 (3) ALT 73 , with respect to the building deviations issued directions in para-36 which is reproduced as under: "36. Having regard to the rampant, illegal and unauthorised constructions raised in the country as observed in State of Maharashtra's case ( AIR 1991 SC 1453 ) (supra) before parting with this case, we would like to formulate the following guidelines to be followed by the respondent in respect of illegal constructions. The guidelines should not be treated as exhaustive but only illustrative and the discretion to be exercised by the Corporation in any given case should not be arbitrary or capricious. 1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations or violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition. 2) whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Sec. 437 of "The Act". 3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction. 3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction. When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below: (i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition. (ii) In any case, there should not be any demolition after sun set and before sun rise. (iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises: If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition. These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness." 11. Whether the deviation in the present case, as per the provisional order are minor, minimal or trivial, or affect public at large or in public interest or not, or cause public nuisance or hazardous or dangerous to public safety including of the residents therein require consideration by the competent authority of the Corporation before resorting to the demolition. In the Full Bench judgment Sec. 452 of the A. P. Municipal Corporation Act itself was for consideration. 12. The period of limitation for filing appeal has also not expired and therefore the consequential action in issuing notice dtd. 23/8/2022, is also not justified. 13. In view of the above the impugned orders cannot be sustained. The Writ Petition is allowed. The impugned orders dtd. 11/8/2022 and 23/8/2022 are quashed. 14. 12. The period of limitation for filing appeal has also not expired and therefore the consequential action in issuing notice dtd. 23/8/2022, is also not justified. 13. In view of the above the impugned orders cannot be sustained. The Writ Petition is allowed. The impugned orders dtd. 11/8/2022 and 23/8/2022 are quashed. 14. The 2nd respondent shall proceed to pass fresh orders, in accordance with law, after taking into consideration the petitioners' explanation submitted to the 2nd respondent. It shall be open to the petitioners to file additional reply against the notice/provisional order dtd. 20/7/2022, pursuant to which the petitioner submitted reply dtd. 1/8/2022 within a period of two weeks from today. If additional reply is filed, the same shall also be considered by the concerned authority, in accordance with law. 15. The final order shall be passed within a period of two months from the date of production of a copy of this judgment before the 2nd respondent. 16. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed in consequence.