High Yield Estates Private Limited v. Writ Petition Nos. 598 & 599 of 2023
2023-01-06
RAVI NATH TILHARI
body2023
DigiLaw.ai
JUDGMENT : Heard Sri Ghanta Rama Rao, learned senior advocate assisted by Sri G. Manikhanta, learned counsel for the petitioner and Sri S. Lakshminarayana Reddy, learned standing counsel for the respondents 2 and 3. 2. Notice has been accepted by the learned Government Pleader for Municipal Administration and Urban Development Authority for the 1st respondent. 3. W.P.No.598 of 2023 has been filed by the petitioner High Yield Estates Private Limited, represented by its Managing Director under Article 226 of the Constitution of India, challenging the notice dated 24.12.2022, issued by the 2nd respondent under Section 461(1) of the A.P. Municipal Corporation Act, 1955. Similar notices have been issued to the petitioner with respect to the different buildings being constructed by the petitioner, subject matter of the writ petition. 4. W.P.No.599 of 2023 has been filed by the same petitioner as petitioner No.12 along with 11 other petitioners, to whom the petitioner No.12 has allotted one flat each, in total 11 flats, out of 34 flats of Ac.1.60 cents, in Sy.No.195/2A2. The challenge in this petition is also to the same notices dated 24.12.2022 on the same subject but given separately to all the petitioners. 5. The subject matter of both the writ petitions being the same with the consent of the parties counsels both the writ petitions are being decided by the common judgment. 6. By the impugned notices, the petitioners have been granted time to show sufficient cause within the specified time as to why the action of removal, alteration or pulling down of the building in question be not taken with further direction to the petitioners to stop construction work forthwith. 7. The petitioners have filed reply to the notices on 02.01.2023, inter alia submitting that the petitioners are not making unauthorized constructions but have obtained the building permission on different dates for each building. Along with the reply the petitioners are said to have filed the copy of the building permissions as well. 8. Sri Ghanta Rama Rao, learned senior counsel submits that the notices proceed on the assumption that the petitioners constructions are unauthorized constructions. He submits that with respect to each building, on the petitioners applications, the building permissions having been granted on different dates in the month of December, 2022.
8. Sri Ghanta Rama Rao, learned senior counsel submits that the notices proceed on the assumption that the petitioners constructions are unauthorized constructions. He submits that with respect to each building, on the petitioners applications, the building permissions having been granted on different dates in the month of December, 2022. The said building permissions are still intact and not having been revoked or cancelled under the statutory provisions of the A.P. Municipal Corporation Act, 1955 (in short, “the Act, 1955”) and also there being no proceedings with respect to any alleged deviations either under Section 452, or Section 450 of the Act, 1955, the constructions being raised by the petitioners cannot be said to be unauthorized. Consequently, the notices issued are without jurisdiction and the respondent authorities cannot in law direct the petitioners to stop the construction work. 9. Sri S. Lakshminarayana Reddy, learned standing counsel, based on the written instructions submits that though the building permission was granted online but such grant is subject to the terms and conditions specified in the building permit itself. One of those conditions is in para No.16 which inter alia provides that the permission was given based on the inputs of pages, documents and drawings provided by the applicant for such building permission. The final approval of proceedings was subject to verification of the report and documents of concerned officials including the site visit report and any deviation identified was to lead modification/rejection of the proceedings for building permission. 10. Sri S. Lakshminarayana Reddy further submits that the A.P. Building Rules, 2017 (in short, “the Rules, 2017”) under Rule 3(22)(c) specifically provides for post verification of building permissions. Shortfall notices were given on 29.12.2022 indicating the shortfall being inter alia (1) that there is no approach road left and (2) layout open space charges were not paid. But, the shortfall was not removed and any reply was also not filed. 11. Sri Ghanta Rama Rao, learned senior advocate submits that the shortfall notices have not been served to the petitioners to which learned standing counsel for the Corporation submits that the shortfall notices were sent to the login of the Licensed Technical Persons (in short LTP) through which the building permission was applied online. Consequently, he submits that there is no illegality in issuing the impugned notices which cannot be said to be without jurisdiction. 12.
Consequently, he submits that there is no illegality in issuing the impugned notices which cannot be said to be without jurisdiction. 12. On a specific query as to whether in the shortfall notices some time has been provided to remove the shortfall or/and to file replies, learned standing counsel submits that it has not been so specified but if the reply is filed to those notices within a reasonable time, the same shall also be considered by the competent authority, along with the petitioners’ reply already submitted to the impugned notices. 13. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record. 14. The submission of the learned senior advocate is that the construction is being raised after obtaining the building permission which is not yet revoked or cancelled and the deviations, if any, have also not been specified in the impugned notices, and further as any notice under Section 450 or Section 452 of the Act, 1955, has not been given, the constructions cannot be termed to be unauthorized. Consequently the notice is without jurisdiction. 15. Rule 3 of the Rules, 2017, which provides for a stream line of building plan approvals, lays down the procedural requirements for obtaining building permission. Rule 3, Sub Rule 10, Clause (i) inter alia provides that every person who intends to erect, re-erect or make alteration in any place in a building or demolition of any building shall submit an application for building permission in writing and/or through online as prescribed, to the concerned authority, of his intention in the prescribed proforma. Clause (a) of sub Rule (22) of Rule, 3, defines Online Building Permission Management System which means the Implementation of Information and Communication Technology (ICT) enabled Integrated Online Building Permission Management System where permission for any category of buildings will be issued. Clause (b) provides that the sanction of building permission of all categories of the building including high raise building which are permissible in normal course as per the zoning regulations and as per the rules and with all prescribed documents and plans shall be done and through the Online Building permission Management System, by the respective sanctioning authority, except in case of Gram Panchayat falling in the areas specified under Clause (b) itself. 16.
16. Rule 3 sub Rule (22) (c) provides for post verification of building permissions, according to this provision, after sanction of the building permissions through the Online Building Permission Management System, the respective local authorities, competent authority and sanctioning authority, shall examine and scrutinize the building permission as per the categories given, in detail and verify the compliance of the legal provisions, the land uses as per the Master Plan/General Town Planning, Schemes, layouts, relevant rules and regulations as applicable and wherever there has been any false submission, misrepresentation of material facts in the application on which the building permission was sanctioned etc., it shall be invalid and shall be deemed to be cancelled. It further provides that the concerned authorities shall be entitled to take appropriate action against such Licensed Technical Personnel and any person whoever is responsible as also against the construction. 17. From the aforesaid, it is evident that the application for building permission is to be submitted through online and the permission shall be issued through the Online Building Permission Management System. After sanctioning of the building permission, the post verification of the building permission is legally permissible under the Building Rules, 2017. 18. So, the building permission is subject to the post verification and in case of violation of the relevant rules, the regulations or non compliance with the provisions of land uses or false submission, misrepresentation of material facts etc., the building permission shall be invalid and shall be deemed to be cancelled. 19. The building permission itself contained the condition in para No.16 that the same was subject to verification. 20. In view of the above legal provisions the submission of the learned senior advocate that once the Building Permission has been granted and so long as the building permission is not cancelled, the construction cannot be directed to be stopped by saying it to be unauthorized is not acceptable. Rule 3(22)(c) of the Rules, 2017 specifically provides that on post verification, in view of the shortcomings etc., or non compliance with the provisions as mentioned in such rule, the building permission shall be invalid and deemed to be cancelled. 21. In the present case, the petitioners have been issued the impugned notices to which they have already filed their reply. 22. The shortfall notices have also been uploaded/sent to the login of the licensed Technical Persons. 23.
21. In the present case, the petitioners have been issued the impugned notices to which they have already filed their reply. 22. The shortfall notices have also been uploaded/sent to the login of the licensed Technical Persons. 23. It is open to the petitioners or/and the person competent under law under liability to remove the shortcoming or/and to submit their reply raising such objections as may be prescribed before the competent authority. 24. This court is of the considered view that in the facts and circumstances of the case as discussed above and in the light of the legal provisions, it cannot be said that the show cause notice is without jurisdiction. 25. There is no challenge to the impugned notices on the ground of patent lack of jurisdiction in the authority issuing the notices. 26. The Court does not find any legal ground to interfere with the show cause notices in the exercise of writ jurisdiction. 27. In the result, the writ petition is being disposed of finally in the following terms: i) No case for interference with the impugned notices, is made out. ii) The 2nd respondent- Zonal Commissioner, Zone- VIII, Greater Visakhapatnam Municipal Corporation, Visakhapatnam/the competent authority, shall consider the petitioners reply to the impugned show cause notices and pass appropriate orders in accordance with law. iii) The petitioners are granted liberty to file reply to the shortfall notices already uploaded on the Login of L.T.P, within a period of two weeks from the date of receipt of copy of this order. iv) The competent authority shall consider the reply to the shortfall notices, if so filed by the petitioners, in accordance with law v) Let the entire exercise be completed expeditiously and preferably within a period of six weeks. 28. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.