THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE NOUSHAD ALI W.P.No.542 of 2008 Date of Order: 05-03-2010 Between: M/s.Rajyalakshmi Modern Rice Mills Contractors Company, Rep. by its Manager Partner, V.Venkata Ramaiah ..Petitioner and 1.The Municipal Corporation, Vijayawada rep.by its Commissioner and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE NOUSHAD ALI W.P.No.542 of 2008 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. In this petition filed under Article 226 of the Constitution, the petitioner seeks a Mandamus from this Court to declare the inaction on the part of the 1st respondent— Municipal Corporation, Vijayawada in preventing the illegal constructions made/being made by the 2nd respondent in premises bearing No.D.No.74-2-20, Old Check Post Center, Bandar Road, Krishna Nagar, Patamata, Vijayawada as illegal, arbitrary and for a consequential direction to the 1st respondent to take action by demolishing the said illegal construction. 2. The facts giving rise to filing this writ petition are as under: 3. The petitioner pleads that he is the Managing Partner and owner of Rice Mill situated in R.S.Nos.208/3, 4, 5 & 6 of Patamata, Vijayawada constructed in the year 1980 which is declared as industrial area. On completion of construction the Municipality assigned Door No.74-2-19, Old Check Post Centre, Bandar Road, Krishna Nagar, Patamata. To the west of petitioner’s rice mill, the 2nd respondent owns premises bearing No.74-2-20, who obtained permission for construction of residential apartment complex in the year 2007. As per the Building Bye-laws, the 2nd respondent has to leave set back 5 meters, but without leaving the said set back the 2nd respondent is making arrangements from 10-01-2008 to cast a slab by extending 2.5 meters into the set back where erection of cantilever balcony should not be more than 1.25 meters (4 feet) into the said set back. It was reliably understood that the 2nd respondent violated Building Bye-laws by not adhering the set back. The petitioner requested the 2nd respondent to construct the building in accordance with the approved plan, but without heeding the request and by taking advantage of the continuous public holidays from 11-01-2008 to 15-01-2008, the 2nd respondent proceeded with the construction with a view to take advantage of the New Building Penalization Scheme notified in G.O.Ms.No.901 Municipal Administration & Urban Development Department (M1), dated 31-12-2007. The said scheme applies to the existing building constructed prior to 15-12-2007 and cannot apply to any construction made thereafter. When the 2nd respondent earlier made an attempt to construct cantilever balcony on 25-04-2007 and 07-07-2007 into the set backs towards petitioner’s side, it made a compliant to the 1st respondent through its representations dated 26-04-2007 and 09-07-2007 and the officials of respondent No.1—Corporation admitted that the construction is contrary to the sanctioned plan and stopped the construction from laying slab of 8 feet projecting into the set back near to the petitioner’s premises. On announcing the Building Penalization Scheme in G.O.Ms.No.901, respondent No.2 proceeded with the construction day and night. Therefore, petitioner made a representation on 12-01-2008 and also sent a telegram on 13-01-2008 to respondent No.1 complaining illegal construction but respondent No.1 failed to take any action. Hence the present writ petition. 4. This Court by order dated 07-02-2008 in WPMP No.609 of 2008 while admitting the writ petition directed the 1st respondent to forthwith stop all or any constructions in the premises bearing D.No.74-2-20, Old Check Post Centre, Bandar Road, Krishna Nagar, Patamata to the extent such constructions are not authorized by the building permission approved by the 1st respondent—Corporation 5. The 1st respondent—Corporation filed a counter affidavit stating that area where the petitioner’s rice mill is existing is in Central Commercial Zone but not Industrial Zone and at present it is surrounded by several residential buildings. The 2nd respondent along with other co-owners obtained building permission on 18- 01-2006 for residential apartment consisting of 60 flats and commenced construction. The construction of building is almost completed except brick work of the balconies on the eastern side. The 2nd respondent who commenced the construction committed certain deviations to the approval given, hence an action was initiated as per the procedure and a show cause notice was issued under the provisions of Sections 42(1) and 43(1) of the A.P. Urban Areas (Development) Act, 1975 and also under the provisions of Section 452 of the Hyderabad Municipal Corporation Act, 1955 on 15- 02-2007 and stopped the construction of the balcony work on the eastern side. Then the 2nd respondent filed W.P.No.6436 of 2007 which was disposed of by this Court at the admission stage on 30-03-2007 directing the 1st respondent—Corporation to issue notice pointing out deviation of the permissions, unauthorized constructions etc. and take action in accordance with law. On stopping construction of cantilever balcony work by the 1st respondent, the 2nd respondent approached the civil court by filing O.S.No.366 of 2007 before the I Additional Junior Civil Judge, Vijayawada in which he obtained temporary injunction order and proceeded with the unauthorized construction. The petitioner made a complaint on 26-04-2007 to take necessary action for demolition of the violated portions like cantilever balconies constructed by the 2nd respondent. Meanwhile, I.A.No.308 of 2007 filed by the 2nd respondent seeking temporary injunction was allowed on 01-05-2007 restraining the Municipal Corporation and their men from interfering with the construction of plaint schedule property by the 2nd respondent in accordance with the approved plan except under due process of law. Under the guise of said injunction the 2nd respondent proceeded with the construction. Hence, a notice dated 25-05- 2007 was issued and the construction of balconies was stopped. The writ petitioner again filed a complaint before the Corporation on 05-07-2007 about the unauthorized construction. Therefore, a show cause notice under Section 452 of HMC Act was issued on 09-07-2007 and 10-07-2007, the centering work of the balcony was removed and further construction on the petitioner’s side was also stopped. The suit filed by the 2nd respondent was decreed on 06-12-2007. Thereafter, the 2nd respondent proceeded with the construction work under the guise of permanent injunction order. In view of the order passed by the Civil Court, the 1st respondent— Corporation is unable to take any action to prevent the unauthorized construction of the 2nd respondent. The 2nd respondent along with flat purchasers filed applications under B.P.S. as notified by the Government. By the time interim orders were passed by this Court on 07-02-2008, the 2nd respondent under the guise of injunction orders completed laying slabs of balconies except brick work on the eastern side. Against the decree passed in O.S.No.366 of 2007 the 1st respondent—Corporation filed an appeal before the I Additional Senior Civil Judge, Vijayawada and the same is pending. The Corporation will take further action on the deviation on disposal of the appeal. 6. The 2nd respondent filed counter affidavit along with vacate petition—WPMP No.1167 of 2008 to vacate the stay granted earlier stating that after obtaining permission for construction of residential complex on 18-09-2006, the entire construction is almost completed, sale deeds were executed to as many as 23 purchasers and agreements were executed in favour of other purchasers. As per the revised master plan, the entire area is declared as Central Commercial Zone and the petitioner is not justified in running the polluting unit in the area where several residential complexes have come up. With a view to pre-empt any action against the petitioner, it has chosen to file the petition and there are no bona fides on the part of the petitioner in approaching this court. The 2nd respondent along with purchasers of the flats applied to the 1st respondent—Corporation for penalization of the deviations by paying more than Rs.3.68 lakhs under Compulsory Disclosure Scheme announced by Government of Andhra Pradesh as per Ordinance No.15, dated 15-12-2007. On making such application by the 2nd respondent and the flat owners and on payment of penal charges, all the actions against the 2nd respondent by the Corporation are deemed to be withdrawn. The 2nd respondent almost completed the construction and penal amount has already been paid, so the deviations are deemed to be condoned. In view of the interim order passed by this Court the brick work was stopped. Most of the purchasers who purchased the flats are also demanding for completion of the construction. Therefore, the 2nd respondent may be permitted to proceed with the essential works that are necessary for common enjoyment of the flat owners. The roof slabs were laid much prior to the coming into force of G.O.Ms.No.901 as amended subsequently. By virtue of the rules framed by the Government for regularization of buildings with existing roof slabs laid prior to 31-12-2007, the 2nd respondent may be permitted to complete the balance works remaining with regard to the structure already constructed by the 2nd respondent, so as to facilitate proper living conditions for the purchaser of various flats. The report of the 1st respondent dated 29-01-2008 requires clarification about balcony work on northern and southern sides. 7. For which a detailed reply has been filed by the petitioner detailing the orders passed by this Court in the above WP and the letter addressed by the 1st respondent to their advocate and its contents; petitioner filing C.C.No.343 of 2008 alleging deliberate violation of the order dated 07-02-2008 passed in WPMPNo.609 of 2008 in WPNo.542 of 2008 and the petitioner filing W.P.M.P.No.610 of 2008 directing the 1st respondent not to regularize the constructions made by the 2nd respondent in violation of building bye-laws and against the orders passed by this court. 8. Some of the flat owners, who have purchased the flats on completion, got themselves impleaded as respondents 3 to 13 in WPMP No.10364 of 2008 dated 21-04-2008. 9. This Court by order dated 28-04-2008 ordered WPMP No.610 of 2008 filed for issuing a direction to the 1st respondent—Corporation not to regularize construction made by 2nd respondent in violation of sanctioned plan; dismissed WPMP No.611 of 2008 filed for a direction to the 1st respondent—Corporation immediately take action to demolish the constructions already made by the 2nd respondent of cantilever balcony in the set backs of the premises and ordered vacate stay petition—WVMP No.1167 in W.P.No.542 of 2008; clarifying the order passed by this Court on 07-02-2008 in WPMP No.609 of 2008 permitting the 2nd respondent from attending to the brick work and elevation work holding that construction of cantilever balconies by the 2nd respondent and in particular to the western side of the petitioner’s premises and their permissible sizes can be resolved at the final hearing of the writ petition as any constructions will abide by the ultimate result in the main case. 10. Sri M.S.Ramachandra Rao, learned counsel for the petitioner contends that as per Rules issued in G.O.Ms.No.901, dated 31-12-2007 the building should be completed by 15-12-2007. Explanation to Guideline—5 issued for regularization runs contrary to the Act and Rules made in G.O.Ms.No.901. Therefore, the construction made by the 2nd respondent in deviation of the sanctioned plan cannot be regularized. To substantiate the said contention he relied on the following judgments. 1. STATGE OF HARYANA v. MAHENDER SINGH[1] 2. EX.CAPT. K.BALASUBRAMANIAN v. STATE OF T.N.[2] The counter-affidavit filed by the 1st respondent—Corporation that the construction of the building is almost completed except brick work of the balconies on the eastern side is contrary to the report of the Commissioner dated 29-01-208. Whereas the 2nd respondent in its counter stated that the roof slabs were laid much prior to the coming into force of G.O.Ms.No.901, dated 15-12-2007 is also contrary to the report of the Commissioner. This Court passed interim order on 07-02-2008. In spite of the same, the 2nd respondent proceeded to lay the slab after the cut off date in deviation of the sanctioned plan and the same is liable to be demolished. The contention of the 2nd respondent that on payment of penalization amount all actions against it are deemed to be withdrawn is contrary to the Scheme unless unauthorized construction is regularized. This Court while clarifying the order passed on 07-02-2008 ordered WPMP No.610 of 2009 filed for issuing a direction to the Municipal Corporation not to regularize the unauthorized construction. Therefore, the construction is contrary to the building bye-laws and necessary set backs are not adhered to, the same is liable to be demolished by placing reliance on the judgment of this Court in B.UMA DEVI v. GREATER HYDERABAD MUNICIPAL CORPORATION[3]. 11. Per contra, Smt.G.Jhansi, learned standing counsel for the 1ST respondent —Corporation contends that when the Corporation issued notices and stopped the construction, the 2nd respondent moved the civil court and obtained temporary injunction; the suit filed by them was ultimately decreed restraining the Corporation officials from interfering with the possession and enjoyment of the plaint schedule property and against which the Corporation filed an appeal and the same is pending. Unless the order passed by the civil court is set aside, the Corporation cannot take any action against the unauthorized construction, if any made. Petitioner is always at liberty to file objections as observed by this Court while affirming the rules issued in G.O.Ms.No.901 in K.H.V. PRASAD v. GOVERNMENT OF ANDHRA PRADESH[4]. She also contended that representation dated 12-01-2008 filed by the petitioner itself indicates that the 2nd respondent started the balcony work on 05-07-2007 and casted the slab with 8’ width. In view of the same, the contention of the learned counsel for the petitioner that the construction of balcony work is after the interim order passed by this Court is not correct and the averments made in para-13 of the reply affidavit and para-4 of the additional affidavit are contrary to the representation and it is only an after thought. 12. Sri M.V.S.Suresh Kumar, learned counsel for the 2nd respondent—builder contended that the builder has obtained permission on 08-09-2006 and started construction, whereas the writ petition was filed nearly after 1½ years in 2008; by that time the entire construction work was completed except brick work of the balcony on the eastern side. Therefore, there is no violation of sanctioned plan as contended by the petitioner. 13. Sri D.Prakash Reddy, learned senior counsel for the flat purchasers, who got themselves impleaded, contends that Rule 15 of the Rules issued in G.O.Ms.No.901 itself authorizes the Government to issue guidelines to implement the Rules. Therefore, any guideline issued for implementation of the Rule forms part of the Rule. Petitioner neither challenged the guidelines or the Rules. Then remains the factual aspect, namely, whether the construction was completed prior to the cut off date i.e. 15-12-2007 or subsequent, which cannot be gone into in the present writ petition. Even according to the petitioner, balcony work was started on 10-01-2008, whereas the report of the Commissioner forwarded to its Standing Counsel dated 29-01-2008 it is clearly stated that all the slabs on the eastern side were already laid and so far as balconies work on eastern side are concerned only brick work is to be done, which is contrary to the assertion of the petitioner, and the said fact has already been asserted by the 2nd respondent in its counter at para-8. Learned senior counsel has rightly contended that how far the contents of the report of the Commissioner forwarded to its Standing Counsel dated 29-01-2008 can be relied upon is a question of fact, which cannot be gone into in the writ petition. The 2nd respondent in its counter stated that there are no balconies on the northern and southern sides of the building, whereas as per the report of the Commissioner, there are balconies on two sides i.e. northern and southern sides. It is a factual aspect, which has to be demonstrated in the pending appeal by either parties on appointing the Commissioner to inspect and note down the physical features. 14. The petitioner, who initially filed writ petition complaining that the Scheme envisaged in G.O.Ms.No.901 applies only to the existing buildings constructed prior to 15-12-2007 and cannot apply to constructions made after that date, contended that when the 2nd respondent attempted to make construction of cantilever balcony into the set backs near the petitioner’s premises he complained on 26-04-2007 and 09-07-2007 and the officials of 1st respondent—Corporation admitted that the constructions being made by the 2nd respondent are illegal; they visited the site and stopped him from laying slab of 8’ projecting to the set backs near the petitioner’s premises. On notifying the Building Penalization Scheme, taking advantage of the public holidays due to Pongal festival, the 2nd respondent proceeded to make construction of cantilever balcony into the set backs near the petitioner’s premises and the construction work is continued day and night, whereas in the representation made by the petitioner to the Commissioner on 12-01-2008 annexed to the writ petition it is clearly stated by the petitioner as under: “The town planning staff of the Vijayawada Municipal Corporation has visited the building and taken action to limit the cantilever balcony to a width of 4’. Intentionally the builder has erected the iron rods to a width of 8’ and started the balcony work on 05-07-2007 to a total width of 8’ width. Immediately my persons made a compliant to the 103 cell in the reference 2 cited. On 07-07- 2007 the builder has casted the slab for the balcony with 8’ width. Again my persons made a complaint to the 103 cell on 07-07-2007 and the response from the cell is that the building is as per the approved plans which is not correct. The town planning staff have visited the construction and got stopped the construction but they have not removed slab casted with 8’, which is against the approved plan and violation to the zoning regulation. ……Suddenly the builder has started the construction to extend the balcony into the western side open space with 8’ width and making arrangements day and night with an intention to complete during continuous public holidays from 11-01-2008 to 15-01-2008 and to file application under Building Penalization Scheme.” 15. Whereas, the counter field by the 1st respondent—Corporation shows that when the notices were issued under the provisions of A.P. Urban Areas (Development) Act, 1975 and also under Section 452 of Hyderabad Municipal Corporation Act, 1955 on 15-02-2007 and stopped the construction of the balcony work on eastern side, the 2nd respondent—builder filed W.P.No.6436 of 2007 complaining that the 1st respondent—Corporation is threatening to demolish the construction, which is under construction, which was disposed of on 30-03-2007 directing the Municipal Corporation to issue notice pointing out the deviation of the permission, unauthorized constructions etc. and take action in accordance with law. On stopping the balcony work by the officials of the 1st respondent—Corporation, the 2nd respondent—builder filed a suit—O.S.No.366 of 2007 before the I Additional Senior Civil Judge, Vijayawada in which they obtained temporary injunction and proceeded with the unauthorized construction. On 26-04-2007 the petitioner herein made a compliant to take necessary action for demolition of violated portion of cantilever balcony constructed by the 2nd respondent. The I.A.No.308 of 2007 in O.S.No.366 of 2007 filed by the 2nd respondent seeking temporary injunction was allowed by an order dated 01-05-2007 by the lower court granting interim injunction against the 1st respondent—Corporation restraining its men from interfering with the construction of the plaint schedule property in accordance with the approved plan except under due process of law. It is also admitted that the suit filed by the 2nd respondent was decreed and it proceeded with the construction under the guise of permanent injunction order. The decree passed by the lower court is as under: “that the permanent injunction be and same is hereby granted in favour of plaintiff against defendant. that the defendant its officers, men and followers be and hereby restrained from ever interfering with the peaceful possession and enjoyment of the plaint schedule property including demolition in any portion of the plaint schedule property.” 16. It is not disputed that the 1st respondent—Corporation filed an appeal against the judgment and decree passed in O.S.No.36 of 2007 decreeing the suit of the 2nd respondent before the II Additional District Judge, Vijayawada and the same is pending. In the absence of any challenge to the Rules and the Guidelines issued therein, it is not necessary for us to consider the contention advanced by the learned counsel for the petitioner that the Explanation added to Guideline-5 is contrary to the Act or the Rules made in G.O.Ms.No.901. As already adverted to, petitioner’s contention was that the Scheme envisaged in G.O.Ms.No.901 applies only to existing building as on 15-12-2007 and cannot be applied to the construction made after that date. In the absence of any pleading questioning the virus of the Rules or the Scheme, it is not open for the petitioner to contend that the Explanation added to Guideline-5 runs contrary to the Scheme, Act and the Rules made thereunder. 17. In view of the same, it is not necessary for us to dilate on the said aspect including the submissions made by the learned counsel for the petitioner to substantiate the plea. Then remains the only point, whether the construction made by the 2nd respondent is contrary to the approved plan and the same is liable to be demolished or not. 18. This Court in K.H.V. PRASAD’s case (4 supra) upheld the provisions of Sections 452-A, 455-A and 455-AA of Hyderabad Municipal Corporation Act, 1955 inserted by Act 9/2008; Section 218-A of A.P. Municipality Act, 1965 and Section 46 of A.P. Urban (Development) Act, 1975 as valid and also the Rules issued in G.O.Ms.No.901, dated 31-12-2007, namely, A.P. Regulation and Penalization of Unauthorized Constructed Buildings and Buildings constructed in Deviation of Sanctioned Plan Rules, 2007 except to the extent of clause (h) of Rule 9 which prohibits constructions in layout or master plan open spaces earmarked for recreation use in the master plan or zonal development plan and deleting clause (i) of Rule 9 vide G.O.Ms.No.112 dated 31-01-2008. Further, in para-83 it was observed that in cases where setback violations take place or in cases where the FSI or FAR is exceeded; then neighbour of such offending construction may, at the most, claim that his easementary right or his right to light and air is affected but it would be wholly unsustainable for him to contend that his right to life is being affected on account of such construction. This Court further held that any objector including a neighbour of an offending construction, undoubtedly, has locus and would be entitled to object to the construction including objection from the point of view of ineligibility of a particular construction from the provisions of the scheme itself. The provisions of G. O. Ms. No. 901 do not any way provide for such objector being heard either before or after such orders for regularization are issued in favour of the applicant. Under rule 11 if an applicant is aggrieved by an order passed by the competent authority an appeal is provided to a committee, which would be constituted by the Government under Rule 14. No such appeal is, however, available to an objector. In the scheme of things as it stands under the Rules no such locus or hearing is provided to an objector and thereby he has no other remedy except to approach common law Courts for appropriate relief. We have already held above that all such regularizations and penalizations would not affect the easementary or civil rights of any neighbour and as such, he would be free to ventilate his grievance before the competent civil Court, if he so desires. We are also of the further view that the Government may consider amendment of Rules 11 and 14 so as to provide right of appeal to an objector or a third party and till such decision of the appellate authority the orders of regularization or penalization including occupancy certificate issued under Rule 10 would remain provisional and subject to confirmation of such appellate authority. 19. Admittedly, in the present case the