Godavarthy Rama Krishna v. State Of Andhra Pradesh
2024-07-30
TARLADA RAJASEKHAR RAO
body2024
DigiLaw.ai
ORDER : (Tarlada Rajasekhar Rao, J.) : This Writ Petition is filed under Article 226 of the Constitution of India for the following relief:- "To issue order or direction more particularly in the nature of Writ of Mandamus declaring the action of the Respondent Nos.1 to 3 in not taking any action against the Respondent Nos.4 to 9 in making illegal constructions by violating the Building permission and without leaving any set-backs and obstructing the free flow and light to the Petitioner’s premises in Old D.No.24-142, new D.No.4-149, Assessment No.1931, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District and issuing BPS Proceedings No.BPS2019/PRA/VET/VET/41154 dated 09.10.2019, as illegal, arbitrary, violation of Principles of Natural Justice and violation of Articles 14, 21 and 300A of the Constitution of India and set-aside the said BPS Proceedings and consequently direct the Respondent No.2 to remove the illegal constructions made by the Respondent Nos.4 to 9 in D.No.4-149, Ravuru Road, Vetapalem Village, Desaipeta Panchayath, Prakasam District and in the subject premises and pass such other orders…." 2. The present Writ Petition is being filed to obtain mandamus for the authorities' failure to act, despite a representation being made to respondent Nos.1 to 3, which brought to their attention not only about the construction of a building in violation of building rules and regulations and the respondent Nos.4 to 6 have encroached upon the property and have entered into an agreement development with the respondent Nos.7 to 9 and constructed the building without leaving any set-backs with 100% deviation and the said construction is causing irreparable loss and injury and it is obstructing free flow of air and sunlight to the petitioner, but the authority did not act; therefore seeking directions to take action against the respondents for illegal construction, as it is not permitted according to building rules. 3. It is also asserted in the affidavit filed in support of the Writ Petition that the petitioners herein filed O.S.No.376 of 2019 on the file of the Court of Principal Junior Civil Judge at Chirala for permanent injunction and Interlocutory Application for temporary injunction and the said suit is pending for adjudication. 4.
3. It is also asserted in the affidavit filed in support of the Writ Petition that the petitioners herein filed O.S.No.376 of 2019 on the file of the Court of Principal Junior Civil Judge at Chirala for permanent injunction and Interlocutory Application for temporary injunction and the said suit is pending for adjudication. 4. The unofficial respondents have filed their responses, denied the assertions made by the petitioners, and acknowledges that they have built the building violating the building permit, according to the assertion, a new building was constructed in the year 2017 in D.No.24-142, new D.No.4-149, Assessment No.1931, Ravuru Road, Vetapalem Village, and denied the encroachment and obstruction of the free flow of air and sunlight to the petitioners’ premises, and stated that it is invited for the Writ Petition. It is stated that, in fact, the petitioners have filed a civil suit for permanent injunction, and the same was dismissed, by circumventing the law, the petitioners have presented the present Writ Petition. The Court's denial of the injunction shows that the petitioners' property was not invaded, inter alia, it is asserted that the BPS scheme was introduced by the government in the year 2019 as per G.O.Ms.No.14 dated 04.01.2019, and they have applied for the scheme and the permission was accorded, vide BPS 2019/PRA/VET/VET/ 41154, dated 09.10.2019, and the building was regularised by the authorities on receipt of an amount of Rs.29,86,064/- for regularisation and the petitioner has attempted to circumvent the law with malicious intention in order to gain wrongful and to cause wrongful loss, hence prayed to dismiss the Writ Petition with costs. 5. The 2nd respondent filed counter, asserting that as per the G.O.Ms.No.14 dated 04.01.2019, an order was issued by the Government to regularize and penalize the buildings constructed unauthorized and in deviation from approved plans in the jurisdiction of all Gram Panchayats falling in Urban Development Authorities on par with the urban local bodies. Basing on the orders and provisions issued by the government, vide the aforesaid G.O., the 2nd respondent has got penalized the building constructed by the petitioners, since the said alleged building got regularized in the aforesaid government order, and no further cause of action on the alleged building need to be initiated and also stated that they have collected requisite charges from the respondent Nos.4 to 6. Hence, prayed to dismiss the Writ Petition. 6.
Hence, prayed to dismiss the Writ Petition. 6. Learned counsel appearing for the petitioners would submit that as per the G.O.Ms.No.14 dated 04.01.2019, one has to apply for regularization within 90 days under sub-rule (6) of Rule 3 of the G.O. and the petitioners herein have made an application on 28.08.2019 and the penalization order was passed on 09.10.2019 and the application filed for regularisation is contrary to sub-rule (6) of Rule 3, as it is beyond the period of limitation, and the authorities have no right to entertain the application, as it was filed beyond the time limit, that it is evident that the official respondents, along with the unofficial respondents, have given consideration to the application for regularization and, therefore, he would agitate to allow the Writ Petition and to direct the official respondents herein to take action against the building of unofficial respondents for constructing the building illegally, as it violates the aforementioned rule. 7. It is contested by the unofficial respondents that they are having every right to construct the building and the building was constructed in the year 2017 and admitted that they have constructed the building in deviation and they have applied for the regularization under BPS scheme, vide G.O.Ms.No.14 dated 04.01.2019, and infringement of right of free flowing air and sunlight to the petitioners’ premises is not a ground for demolition of the house. If, at all, the petitioners are aggrieved, they have to file appropriate proceedings for easementary right. Albeit, the construction of the building in violation of the sanctioned plan, these respondents have already applied before the concerned authority for regularization of the construction beyond sanctioned plan and submitted a revised plan before the concerned authority and the same was approved. Therefore, the petitioners have no right to agitate that the unofficial respondents have constructed the building in violation of the building plan, as the same was approved by the authorities on payment of penalization charges. 8.
Therefore, the petitioners have no right to agitate that the unofficial respondents have constructed the building in violation of the building plan, as the same was approved by the authorities on payment of penalization charges. 8. It is also contended by the learned counsel for the unofficial respondents that the Court should not interfere with the penalisation order, unless it is improper or it is shocking or conscience of the Court and also contended as elucidated by the Hon’ble Apex Court in M/s. Rajatha Enterprises v. S.K. Sharma, (1989) 2 SCC 495 that in the absence of any evidence of public safety being in any manner endangered for the section of public being in any manner caused inconvenience by reason of the construction of the building and whatever may be the personal grievance of the petitioners, the High Court is not justified at the instance of the petitioners to order for demolition. 9. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and it would affect the settled rights of third parties, then the claim can be entertained. The petitioner has not given a clear explanation, the benefit or right that was deprived by filing an application for regularization beyond the limit set by the official-respondents and also unable to explain the inconvenience or show some reason the prejudice that occurred to the petitioners when un-official respondents filed their regularization application late, as prescribed under G.O.Ms.No.14 dated 04.01.2019, to issue a direction by this Court for demolition. 10. As contested by the un-official respondents, the petitioners have not stated endangerment to the section of public or to the petitioners and as seen from the affidavit filed in support of the Writ Petition, the grievance of the petitioner is that the building obstructs free flow of air and sunlight to the petitioners’ house which has to be adjudicated before the appropriate Court under the Easementary Act. Once the authorities have regularized the building, exercising the power, the judicial review by this Court should be refrained, as this Court cannot sit in an appeal over the decision of the administrative body. As the judicial review is only on certain grounds, unless it is shown that the exercising the discretionary power would be perverse.
Once the authorities have regularized the building, exercising the power, the judicial review by this Court should be refrained, as this Court cannot sit in an appeal over the decision of the administrative body. As the judicial review is only on certain grounds, unless it is shown that the exercising the discretionary power would be perverse. The petitioners are not able to explain or substantiate the discretion exercised by the authorities is perverse or illegal and it is the only contention that was raised by the petitioners is that unofficial respondents have applied for building permission under the BPS scheme after lapse of time under sub-rule (6) of Rule 3 of the G.O.Ms.No.14 dated 04.01.2019. It cannot be said that as it is illegal, unless it is established that the sanction plan would affect the public safety endangering the public and in any manner it is inconvenience by reason of the construction of the building. 11. It is further contended by the unofficial respondents that the petitioners have filed the civil suit and the same was dismissed and by circumventing the law, the present Writ Petition is filed. 12. For the aforesaid reasons, this Court is of the view that no grounds were raised by the petitioners herein to interdict with the building penalization scheme granted in favour of the petitioners herein. As such, there is no merit in the present Writ Petition. 13. After giving anxious consideration after perusal of the grounds in the Writ petition, it is obvious that the petitioners have filed the Writ Petition with ulterior motive and petitioners have not come to Court with clean hands, the Writ Petition deserves to be dismissed. 14. Accordingly, the Writ Petition is dismissed, however, there shall be no order as to costs. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.