HONOURABLE SRI JUSTICE S.V.BHATT WRIT PETITION No.26272 of 2010 Date: 02-07-2014 Between:
Arava Tirupathi Rao, S/o.China Venkata Ramana Rao, Rajahmundry, E.G.District Rajahmundry Municipal Corporation, And …Petitioner Rajahmundry, rep.by its Commissioner And another …Respondents.
ORDER:
HONOURABLE SRI JUSTICE S.V.BHATT WRIT PETITION No.26272 of 2010 The continuity and consistency of orders of this Court it appears has not sensitized the first respondent in any measure. The petitioner invoked the jurisdiction of this Court for issuance of Mandamus directing the first respondent to take action for demolition of unauthorized and illegal structures at D.No.10- 15-44 & 45, 23rd Division, Main Road, Rajahmundry.
Heard learned counsel Sri K. Sita Ram, Smt.Swarna Seshu and Mr.Nagesh, for all the parties.
The petitioner is running a small shop on the main road of Rajahmundry town. The second respondent is the owner of the premises covered by D.No.10-15-44 & 45 and plot in an extent of about sq. yards. The second respondent applied for sanction of building plan for construction of a residential house. The admitted factual position is that the first respondent approved Building Plan vide B.A.No.676 of 2008 dated 27.12.2008. According to the sanctioned plan, after leaving sufficient space for set backs, the second petitioner is permitted to construct 60.54 square meters in each on Ground and First floors. It is in this background that the petitioner has moved the Court for the relief of demolition of unauthorized construction.
It is matter of agony to note that a series of old/new structures for not being compliant with laws/technical specifications are crumbling like nine pins. Experience with such matters is continuing life without introspection or rectification of these mistakes. The collapse of buildings is taken note by all the concerned as mute spectators and the happenings in the society without firm action.
In the case on hand, the blatant violation is not joined as an issue by the respondents. The material is conclusive in this behalf. The first respondent has placed before the Court the report dated 24.12.2010 together with photographs of the construction at the subject site. The relevant portion of the report is extracted to state the greed of the second respondent and she deviated from every norm intended in the matter of grant of permission of Building Permission or set backs.
“The details of construction made are submitted in the following statement.
Further it is submitted that the Ground Floor and First Floor area in the occupation of Sri Surya Chandra Sarees Shop and remaining floors vacant. The tax is levied in respect of the Ground and First Floors. The rest of the Floors, no tax is levied. The photographs indicating the occupation of Ground and First Floor building and the vacant position of the remaining Floors are herewith filed. At present no construction is carried on in the building.”
A look at the photographs would further disclose that the second respondent is using the building for non-residential purpose by running a cloth store on ground floor and first floor. As against the permitted floors space area of 121.08 square meters, the second respondent has constructed a massive structure covering 1078.88 square meters. This Court is shocked at the indifference exhibited by the subordinates of first respondent in implementing the Building Regulations. The learned counsel appearing for the parties have not disputed the report of the first respondent dated 24.12.2010 and writ petition disposed of on the strength of report and undisputed circumstances.
The 1st respondent in the counter-affidavit has stated filing of O.S.No.887 of 2009, on the file of Principal Junior Civil Judge, Rajahmundry and obtaining temporary injunction restraining demolition of the building. The explanation offered by the first respondent, it appears, is an excuse to clothe the intentions in supporting the second respondent in raising a huge construction of 1075 square meters. This Court in the decisions reported in V. NARASIMHAM AND ANOTHER v. GREATER HYDERABAD MUNICIPAL CORPORATION,
[1]
HYDERABAD and R.SRINIVAS KUMAR v. GREATER HYDERABAD
[2]
MUNICIPAL CORPORATION AND OTHERS has issued series of directions
to ensue construction of buildings strictly in accordance with the sanctioned plan and directions for compliance by the Commissioner against illegal structures.
The relevant portions of the reported decisions are as follows: 2007(5) ALD 203……..
“We have considered the arguments/submissions of the learned counsel, but have not felt impressed. Neither in his reply to notice dated 07.06.2007 nor in the affidavit filed in support of the writ petition, petitioner No.1 has denied the fact that as per the sanctioned plan he could construct parking area with three floors, but he has constructed fourth floor and also made deviations in violation of the building bye-laws. It is, therefore, reasonable to conclude that the construction made by petitioner No.1 is unauthorized. This being the position, we do not find any valid ground or justification to entertain the prayer for quashing the action initiated by the respondents for demolition of the unauthorized construction. It is trite to say that the constitutional remedies can be availed only by those who have respect for the law of the land and not to those like the petitioner who conduct themselves in violation of the laws enacted by the competent Legislature and the rights of the fellow citizens. The concept of planned development, to which reference has been made in the earlier part of this order, casts a duty on every person aspiring to construct building to abide by the relevant statutory provisions, master plan, zoning plan and sanctioned plan apart from the building bye-laws. This is absolutely imperative for safeguarding the rights of others, protecting the environment and ecology and respecting the right to life guaranteed to the people under Article 21 of the Constitution. The construction of building in violation of the statutory provisions and master plan etc. has serious adverse impact not only on the present generation, but future generation. Therefore, this Court cannot exercise its power under Article 226 of the Constitution of India and ordain the respondents not to demolish the unauthorized construction because that would amount to perpetuation of illegality committed by petitioner No.1.
Another argument of the learned counsel that the two notices issued under Section 452 of the Act are inconsistent inasmuch as the first notice did not make a mention of the deviations enumerated in the second notice, is without substance. A conjoint reading of the two notices makes it clear that the same authority had pointedly made a mention of the nature of the unauthorized construction and petitioner No.1 was not put to any prejudice on account of absence of enumeration of deviations in notice dated 07.06.2007. The absence of prejudice to petitioner No.1 can be inferred from the fact that he has not denied the allegations contained in the impugned notice.
We are further of the view that the writ petition is liable to be dismissed because petitioner No.1 is guilty of abusing the process of the Court. At the cost of repetition, we consider it necessary to mention that in terms of the order of injunction passed by the learned X Junior Civil Judge, City Civil Court, Hyderabad in I.A.No.715 of 2005, petitioner No.1 could have raised construction only in accordance with the sanctioned plan and not in violation thereof, but he contemptuously disregarded the condition imposed by the Court and constructed fourth floor and pent house and also made deviations in clear violation of the sanctioned plan.”
In 2013(4) ALD 161…….
“In view of the law laid down by the Hon’ble Supreme Court which are directly applicable to the facts presented before the Court, this Court issues the following directions:
1. The respondent Corporation should ensure that there is no deviation from the Master Plan or sanctioned plan under any circumstances. If there is any deviation, the GHMC should take immediate action to enforce the same.
2. The respondent Corporation should periodically assess whether existing buildings are in accordance with the Master Plan. The concerned officials should be held accountable if there is any violation of the Master Plan.
3. With respect to existing construction, which is illegal and is in deviation of Master Plan, the GHMC should take action to demolish the same.
4. If there is any violation of the Master Plan or the GHMC sanctioned plan, GHMC should immediately inform the A.P.TRANSCO and HMWSSB to take appropriate action.
5. All public roads should be used for the movement of traffic and cannot be used for allotment to private agencies for the purpose of parking.
6. GHMC should notify designated parking zones in various places for the purpose of parking. GHMC should construct multi-layered parking zones at various places throughout the city.
7. GHMC should ensure that footpaths are used only for pedestrians and bus stand. Under no circumstances should the footpaths be used for hawking or any other material.
8. All commercial establishments in the city should have their own parking facility and cannot use the road for the purpose of parking. GHMC should not give permission to any new commercial establishment unless, they provide sufficient parking space for users of the said premises. With respect to the existing establishments, GHMC should serve notice on all commercial establishments within the city, requiring them to create appropriate parking space within six months. If the said establishments fail to do so, GHMC should take appropriate action for cancellation of their licence under the A.P.Shops and Establishments Act.”
The second respondent cannot take advantage of the injunction in I.A.No.2138 of 2009 in O.S.No.887 of 2009 in the Court of Principal Junior Civil Judge, Rajahmundry, to defeat the Building permission. If the argument of second respondent either that the injunction is in force and a request for sending the issue to Lok Adalath was pending, and there is no omission is accepted there may hardly be any necessity for building permission. It appears that the second respondent constructed the building in the way she liked. The inaction either in taking further steps against the order of injunction in I.A.No.2138 of 2009 in filing an appeal or contesting the matter effectively as observed by this Court in the decisions referred to above disclose that a few of the Officers in Municipal Corporation of Rajahmundry either by choice or for other reasons maintained forced silence. People who selectively take decisions do not be given the responsibility of implementing building bye laws. Be that as it may, since the learned standing counsel has brought to the notice of this Court that the incumbent is not responsible either for construction of the unauthorized building or for the lapses occasioned from 2009 till the date of his assuming charge. Like any other official act, in this statement also, the bonafides of the counsel for the first respondent are believed and is discharged if required action for demolition is taken up and completed within a period of two months from the date of receipt of a copy of this order. The 2nd respondent is given liberty to state through representation her plans to demolish objectionable structures at her cost and expense to avoid damage to permissible structures. At the time of hearing, the learned counsel for the petitioner, on the query of the Court, answered that the petitioner has not undertaken any construction contrary to the approved plan or bye-law. Since the petitioner wants implementation of rule of law, the first respondent shall have it verified that the construction of the petitioner conforms to the building plan and bye-law.
The writ petition is ordered in the above terms. No order as to costs. The Miscellaneous Petitions, if any, pending, shall stand closed.
JUSTICE S.V.BHATT Date: 02-07-2014.
Rns
[1]
[2]
2007(5) ALD Page 203
2013(4) ALD 161