Date of Judgment: 22.8.2014 W.P. No. 23188 of 2014 Between:
Chintham Suguna And The Government of Telangana and another …Petitioner Between:
And W.P. No. 23202 of 2014 ..Respondents Chuthahari Gajendra Bheeshma …Petitioner And The Government of Telangana and another ..Respondents COMMON ORDER:
Heard learned counsel for the parties.
Both these writ petitions were heard at the admission stage on 13.8.2014 and posted the matter for orders. The facts in both the cases are similar and hence the facts in W.P.No. 23188 of 2014 are noted herein.
The petitioner claims that she purchased a house bearing door No. 1-3-335 and 1-3-336 in an extent of 121.33 sq. yards situated at Metpally from the earlier owner under a registered sale deed dated 20.3.2006 and she also claims to have purchased another house bearing door No. 1-3-337 in an extent of 430 sq. yards from the same owner under a registered sale deed dated 20.3.2006. The petitioner states that mutation has been effected in her name and she has been paying taxes. The petitioner further states that on her application for demolition of old house and re-construction of a new building, the second respondent granted permission to her to construct a ground+3 floor commercial-cum-residential building after approval from the Regional Deputy Director by proceedings dated 20.8.2013 and the said permission is said to be valid till 27.8.2014. The petitioner further states that when she has taken up construction as per the sanctioned plan, she received a notice dated 28.7.2014 from the second respondent under Section 228 (1) of the A.P. Municipalities Act, 1965 alleging that she was constructing the building contrary to the sanctioned plan and she was required to stop the construction and remove the constructions made by her. The petitioner was also given a notice under Section 228 (2) of the A.P. Municipalities Act, 1965 directing her to explain within seven days and accordingly she filed an explanation dated 31.7.2014 stating that she was taking up the constructions as per the sanctioned plan and if there are any deviations from the sanctioned plan, the same may be regularized by imposing penalty on her. However, an order dated 6.8.2014 was passed directing the petitioner to demolish the illegal construction. Surprisingly the said order does not even refer to the explanation submitted by the petitioner on 31.7.2014 nor does it deal with the reasons as to why the demolition alone was required to be effected instead of exercising powers under Section 340 of the A.P. Municipalities Act, 1965. In this connection, the petitioner relied upon an order dated 18.12.2012 passed by this Court in W.P. 29388 of 2012 wherein somewhat similar manner this Court noticed the amended Section 340 of the A.P. Municipalities Act, 1965, amended by A.P. Act 6 of 2008 which permits regularization of minor deviations subject to imposing penalty and this Court directed the respondent-Municipality therein to inspect the building constructed by the petitioner therein and compound the offence, if any committed by the petitioner therein exercising the discretion contained in Section 340 of the A.P. Municipalities Act, 1965 read with G.O.Ms.No. 168, Municipal Administration and Urban Development (M) Department, dated 7.4.2012.
In the present case, it is evident as noted above that the impugned order does not even refer to the petitioner’s explanation nor does it mention as to why the demolition alone was required to be effected with reference to the deviations. When a show-cause notice was issued and the petitioner filed her explanation to it, the second respondent was required to apply his mind to the explanation and examine the nature of the deviations, if any and if he is satisfied that such deviations cannot be regularized or compounded in terms of the amended Section 340 of the A.P. Municipalities Act, 1965 read with G.O.Ms.No. 168, Municipal Administration and Urban Development (M) Department, dated 7.4.2012, then only demolition has to be resorted. The petitioner’s case, from this angle, is required to be considered by the second respondent afresh. It is also noticed that the explanation submitted by the petitioner is also cryptic.
Hence the impugned order is set aside, the petitioner is permitted to supplement the explanation by filing a supplementary explanation which shall be done within a week from today and thereafter the second respondent shall examine the matter afresh in the light of the observations made herein and then pass appropriate orders in accordance with law.
Both the writ petitions are accordingly allowed. Miscellaneous applications, if any, shall stand closed. No order as to costs.
VILAS V. AFZULPURKAR, J Dt. 22.8.2014 NB:
CC of order be furnished by 26.8.2014.
/BO/ KR