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2023 DIGILAW 317 (AP)

Kancharla Sushma v. State Of AP

2023-02-06

CHEEKATI MANAVENDRANATH ROY

body2023
ORDER : This writ petition for a Mandamus is filed to declare the impugned order dated 02.01.2020 of 3rd respondent in granting B.P.S. in favour of 7th respondent as illegal and violative of G.O.Ms.No.14 (MA & UD (M)) Department, dated 04.01.2019 and consequently prayed to set aside the impugned order passed in favour of the 7th respondent. 2. Heard learned counsel for the petitioner, learned Assistant Government Pleader for Municipal Administration and Urban Development appearing for respondents 1 and 2, Sri M.Manohar Reddy, learned Standing Counsel for Vijayawada Municipal Corporation appearing for respondents 3 to 5 and Sri Ch.Madhav, learned counsel representing Sri K.V. Aditya Chowdary, learned counsel appearing for unofficial respondent No.7. None appeared for respondent No.6-LIC Housing Finance Limited. 3. The petitioner claims to be the absolute owner of the land in an extent of 220 sq. yards covered by R.S.No.433/3 of Gunadala Village in Vijayawada Rural Mandal. It is stated that she has purchased the said land under a registered sale deed dated 26.11.2001 and got the said land regularized under L.R.S. scheme from the then V.G.T.M. UDA, Vijayawada as per proceedings dated 05.07.2012 and thereafter raised ACC roofed shed and has been paying the taxes to the Municipality regularly. 4. It is her case that the 7th respondent also purchased a vacant site on the northern side of site of the petitioner in the year 1995 under a registered sale deed dated 31.03.1995 and got the same also regularized in the L.R.S. scheme from the then V.G.T.M. UDA of Vijayawada. It is stated by the petitioner that when the 7th respondent earlier tried to interfere with the possession of the petitioner in respect of her land, that the petitioner has filed a suit in O.S.No.1259 of 2017 on the file of Principal Junior Civil Judge’s Court, Vijayawada for permanent injunction and that a temporary injunction was granted in favour of the petitioner against the 7th respondent in I.A.No.1845 of 2017 and the same was made absolute on 10.01.2019 on merits. It is further stated that 7th respondent who purchased her property in the year 1995 , kept it vacant for some time and thereafter applied for approval of plan initially for G+1 in the year 2016 and the same was approved as per proceedings dated 15.07.2016, but she did not commence the construction and subsequently on 02.06.2018, the 7th respondent got her compound wall demolished along with toilet on the northern side of the property of the petitioner and encroached into the site of the petitioner in an extent of 20 sq. yards while the temporary injunction granted in favour of the petitioner was in force and later on the 7th respondent applied for another plan in the year 2018 for stilt with G+2. It is stated that the said approval of the plan was obtained by the 7th respondent for more extent than the extent to which she got title. According to the petitioner, the 7th respondent is only entitled for regularization only to an extent of 207 sq. yards, but she has obtained it for 220 sq. yards. Therefore, alleging that the very approval of plan for total extent of 220 sq. yards is illegal, the petitioner has filed this writ petition seeking the aforesaid reliefs. 5. The 7th respondent filed counter denying the material averments made in the writ petition. It is stated that the 7th respondent is the original owner of the property in an extent of 220 meters in R.S.No.433/3 in LIC colony and her father purchased the said property in her favour while she was minor in the year 1995 and further stated that the 7th respondent has applied for permission for construction of ground and first floor of RCC building in her property and the municipal authorities accorded permission as per proceedings dated 15.07.2016 and the construction commenced and on 04.01.2018, the 7th respondent noticed that the petitioner has encroached on to the 3 feet into her property and constructed a wall and she lodged a report in Crime No.13 of 2018 of Machavaram Police Station and thereafter, the 7th respondent approached the civil Court by filing a suit in O.S.No.371 of 2018 on the file of learned Principal Senior Civil Judge, Vijayawada and interim injunction was granted in her favour and that the same is pending. It is stated that thereafter the 7th respondent in order to construct Stilt with G+2 building has applied for the revised building permit and municipal authorities have approved the same. It is stated that the municipal authorities have verified the records and then only granted the approval as sought for. It is stated that the total area of the land of the 7th respondent is 183.948 sq. meters and she has constructed the building within 183 sq. meters i.e. 178.02 sq. meters of Stilt, G+2 floors. It is stated that the approval of the plan by the municipal authorities in favour of the 7th respondent is in accordance with law and there is no violation of clauses in G.O.Ms.No.14, (MA & UD (M)) Department, dated 04.01.2019. Therefore, sought for dismissal of the writ petition. 6. The 3rd respondent-Municipal Corporation filed counter stating that it is a fact that the respondent Municipal Corporation has regularized the building of the 7th respondent under Building Penalization Scheme (“B.P.S.”) as the 7th respondent is entitled for regularization under G.O.Ms.No.14, dated 04.01.2019 and as the construction of the 7th respondent is completed prior to 31.08.2018, it is stated that the officials of the respondent Municipal Corporation caused inspection and noticed that as per the ownership documents, the 7th respondent is holding and has been in possession of 220 sq. yards, but the 7th respondent left with only 213 sq. yards on ground. So, it is stated that there is no illegality or collusion as alleged by the petitioner in approving the B.P.S. application of the 7th respondent. It is stated that a survey was conducted and it is noticed that though the 7th respondent holds 220 sq. yards as per her ownership documents, that there is only 213 sq. yards on ground. It is finally pleaded that there is no illegality in approving the plan and thereby prayed for dismissal of the writ petition. 7. Admittedly, the petitioner and 7th respondent are the adjoining land owners. They have purchased their respective vacant sites under valid registered sale deeds and they have been in possession and enjoyment of the same. The sites purchased by both the petitioner and 7th respondent were subsequently regularized under B.P.S. These facts are incontrovertible facts. 8. 7. Admittedly, the petitioner and 7th respondent are the adjoining land owners. They have purchased their respective vacant sites under valid registered sale deeds and they have been in possession and enjoyment of the same. The sites purchased by both the petitioner and 7th respondent were subsequently regularized under B.P.S. These facts are incontrovertible facts. 8. Admittedly, a suit was filed by the petitioner against the 7th respondent in O.S.No.1259 of 2017 on the file of Principal Junior Civil Judge’s Court, Vijayawada for permanent injunction and a temporary injunction was granted in favour of the petitioner against the 7th respondent on merits which is in force at present. The said permanent injunction suit is still pending adjudication before the said civil Court. 9. While so, while the said suit is pending adjudication before the competent civil Court, the 7th respondent has applied for approval of the building plan. The said building plan was approved as sought for by the 7th respondent by the 3rd respondent-Municipal Corporation. 10. Now the grievance of the writ petitioner is that the 7th respondent has got title only in respect of 207 sq. yards, but she has obtained approval of plan for 220 sq. yards for an excess of 13 sq. yards and the said 13 sq. yards belongs to the petitioner and it is part of her property and a temporary injunction was also passed in favour of the petitioner to that effect by the competent civil Court which is in force. So, the petitioner has questioned legal validity of the impugned order of the 3rd respondent passed in favour of the 7th respondent on the ground that as per clause 7 of G.O.Ms.No.14 (MA & UD (M)), dated 04.01.2019 that when sites are under litigation or when there is a dispute regarding ownership of the said site or building that the B.P.S. cannot be applied and contrary to the said clause 7 of the aforesaid G.O., even though the litigation is pending in respect of the said site between the petitioner and 7th respondent and even though the said fact is taken to the notice of the 3rd respondent Municipal Corporation by way of filing a representation that ignoring the same that the unauthorized construction was regularized in utter violation of the aforesaid clause 7 of the G.O. and as such, it is not valid under law. 11. 11. Clause 7 of said G.O.Ms.No.14 (MA & UD (M)), dated 04.01.2019 deals with the circumstances under which a penalization cannot be applied to certain sites. Clause 7 (i) of said G.O. reads as follows: “Sites under legal litigation/disputes regarding ownership of the site/building.” 12. Therefore, a perusal of the aforesaid clause makes it manifest that when there is a litigation in respect of a site or dispute regarding ownership of the site or building, the said B.P.S. cannot be applied in respect of the said site or building. It is not in dispute that the petitioner has taken to the notice of the 3rd respondent Municipal Corporation that there is a litigation pending in the competent civil Court in respect of the site in question belong to the 7th respondent. Yet, ignoring the same, it appears that the B.P.S. is applied in respect of the site of the 7th respondent. So, the very order passed by the 3rd respondent in favour of the 7th respondent is undoubtedly made in violation of clause 7(i) of G.O.Ms.No.14 (MA & UD (M)), dated 04.01.2019. Apart from it, it is significant to note that even in the counter filed by 3rd respondent, it is clearly stated that in a survey that was made, even though the document of the title submitted by the 7th respondent shows that her land is in an extent of 220 sq. yards, but on ground it is found that there is only 213 sq. yards. So, when the petitioner asserts that the 7th respondent got title only to an extent of 207 sq. yards, even in the survey conducted, it is found that her land is only in an extent of 213 sq. yards on ground, there is any amount of justification in the contention of the petitioner that the 7th respondent has no title to an extent of 220 sq. yards, for which the impugned order was passed. Therefore, the impugned order is prima facie found to be not valid under law on account of the aforesaid two infirmities. 13. yards on ground, there is any amount of justification in the contention of the petitioner that the 7th respondent has no title to an extent of 220 sq. yards, for which the impugned order was passed. Therefore, the impugned order is prima facie found to be not valid under law on account of the aforesaid two infirmities. 13. Further, when it is found that the order was obtained by misrepresentation of material facts, Section 450 of the Andhra Pradesh Municipal Corporation Act, 1955 (for short “the Act”) mandates that at any time after permission to proceed with any building or work has been given, if the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given, or information furnished under Section 428 or Section 433 or if the further information if any, is brought to his notice or furnished to him, that the Commissioner is empowered to cancel such permission and any work done thereunder shall be deemed to have been done without his permission. 14. For better appreciation, Section 450 of the Act is extracted hereunder: “450. Power of Commissioner to cancel permission on the ground of material misrepresentation by applicant:- If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 428 or 433 or if the further information if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission.” 15. So, in the instant case, as it is stated that the petitioner has obtained the permission in question, by misrepresentation the material facts i.e. by suppressing the fact that a litigation is pending in respect of the said site in O.S.No.1259 of 2017 on the file of Principal Junior Civil Judge’s Court, Vijayawada and that a temporary injunction was passed against the 7th respondent and in favour of the petitioner, undoubtedly it amounts to obtaining the permission by misrepresenting and by suppressing the material facts. As noticed supra, it is contrary to clause 7 (i) of the G.O.Ms.No.14 (MA & UD (M)), dated 04.01.2019. 16. As noticed supra, it is contrary to clause 7 (i) of the G.O.Ms.No.14 (MA & UD (M)), dated 04.01.2019. 16. Therefore, in the said facts and circumstances of the case, this Court is of the considered view that the matter requires reconsideration by the Commissioner of the 3rd respondent-Municipal Corporation in exercise of his power conferred on him under Section 450 of the Act. 17. So, in the said facts and circumstances of the case, this Writ Petition is disposed of with a direction to the petitioner to submit an application under Section 450 of the Act before the Commissioner of 3rd respondent –Municipal Corporation within a week from the date of this order. In case, the petitioner submits an application under Section 450 of the Act, as directed supra, the Commissioner of 3rd respondent- Municipal Corporation shall issue notice to the 7th respondent, who is the affected party and hear both the parties and then pass appropriate orders according to law, after verifying whether the permission in question was obtained by suppressing the material facts of pendency of the litigation in respect of the said site and by misrepresentation of any material facts, under Section 450 of the Act. Till the above order is passed under Section 450 of the Act by the Commissioner of 3rd respondent-Municipal Corporation, as directed supra, the impugned order dated 02.01.2020 stands suspended. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any pending, in this Writ Petition, shall stand closed.