THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.145 of 2010 Date of Judgment: 26-03-2010 Between: VasavioEducational Society rep. By its Secretary V.S.H.Prasad @ Vijjapu Babu ..Appellant and The Kakinaa Municipality rep. By its Commissioner, Kakinada ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.145 of 2010 Oral Judgment: The unsuccessful plaintiff in the courts below filed the present Second Appeal aggrieved by the judgment and decree dated 08-12-2009 made in A.S.No.226 of 2009, dismissing the appeal and confirming the judgment and decree dated 04-04-2007 passed by the II Additional Junior Civil Judge, Kakinada in O.S.No.1086 of 2000, which is filed for permanent injunction restraining the defendant—Municipality from demolishing the rooms newly constructed and assessed to tax bearing Door No.70-1-C in the plaint schedule property. The plaintiff–society is a registered society registered under the Societies Registration Act; obtained lease of the schedule property (vacant site) in an extent of Ac.0.95 cts. in Sy.No.139/3 of Ramanayyapeta village from Palivela Sathiraju Memorial Trust, Kakinada represented by its Chairman Palivela Bhaskara Rao for a term of 60 years commencing from 30-04-1994. The plaintiff-society wanted to construct additional rooms in the vacant site and a resolution in that regard was passed in the general body meeting held on 01-07-1998; got prepared the plans for the construction of rooms in the lease hold premises and applied to the Municipality. As no approval or disapproval was received from the defendant—Municipality within 60 days from the date of receipt of application, under the deemed permission under Section 214 of the A.P. Municipalities Act, 1965 (for short “the Act”) the plaintiff started construction, completed the same and informed the same to the Municipality by the end of June, 2000. Thereafter, the defendant—Municipality sent a communication dated 13-07-2000 stating that the plaintiff has commenced the work in violation of western side set back, for which the plaintiff sent a reply stating that the officers of the Municipality inspected the premises and found there is no violation and assessed the building to property tax, served a demand notice on 04-08-2000 for an amount of Rs.6,893/- towards half yearly tax under Ex.A6 and collected the same on 21-08-2000. While so, a notice dated 04-08-2000 was issued by the Municipality to the plaintiff directing removal of construction, calling the same as unauthorized construction, within 7 days from the date of receipt of the notice informing that prior notices dated 11-04-2000 and 24-06-2000 were sent to the plaintiff, but no such notices are served on the plaintiff. Even if they were issued, they are beyond 60 days from the date of application. Therefore, the defendant—Municipality is not entitled to demolish the building. The defendant—Municipality filed a written statement opposing the contents of the plaint stating that the plaintiff submitted plans to the defendant proposing to construct classrooms in front side abutting to NFCL road. After submitting the plains, the plaintiff commenced construction of basement for the building in violation of the Master Plan Zoning Regulation on the western side without leaving sufficient open space as shown in the plans. The construction is not in conformity with the plans submitted by the plaintiff. When the Municipality returned the plans, the building has become unauthorized construction and accordingly provisional notice under Section 228(1) & (2) of the Act was issued to which the plaintiff has not given any reply. So, the provisional order was confirmed and confirmation order was issued on 24-06-2000. The contractor and committee member of Satya Bhaskara Public School made a representation dated 04-04-2000 complaining that the plaintiff-society is proceeding with the construction of commercial block building in the school premises and the donor after visit of the site has filed O.S.No.318 of 2000 for permanent injunction restraining the plaintiff from proceeding with the construction. When the plaintiff did not comply with the lawful directions issued by the defendant, a final notice under section 228 (1), (2) and (3) of the Act was issued. After receipt of final notice, the present suit is filed. Further, the plaintiff constructed 15 shops and also fixed the shutters to all the shops in violation of Master Plan provision in respect of the land use. As per the Master Plan sanctioned to Kakinada Municipality by the Government vide G.O.Ms.No.389 M.A. B2 dated 10-09-1975, the site in question falls in public and semi-public use where commercial buildings are not permitted. In order to prove its case, the Secretary of the plaintiff-society was examined as P.W.1 and Exs.A1 to A9 were got marked. On behalf of the Municipality, D.W.1 was examined but no documents are filed. The lower court after considering the oral and documentary evidence held that when the plaintiff itself admitted that they have constructed 15 shops in the school premises without obtaining any approved plan unauthorizedly, violating the Master Plan Zoning Regulations, and dismissed the suit. On appeal being filed, the lower appellate Court confirmed the same holding that the plaintiff went to the Municipal office on 18-01-2000 and submitted the plan, which was not approved within 60 days. When the plaintiff is proceeding with the construction, the Municipality sent a letter dated 13-07- 2000 stating that the plaintiff commenced the work with violation of western side set backs, the plaintiff sent a reply dated 20-07-2000 contending that there is no contravention. The provisional notice dated 11-04-2000 was issued by the Municipality under Section 228 (1) & (2) of the Act which was received by the plaintiff on 17-04-2000. As the plaintiff has not submitted any reply to the said notice, the same has been confirmed and confirmation order dated 24-06-2000 was issued. While so, one Puram Venkataratnam also filed O.S.No.318 of 2000 on the file of III Additional Senior Civil Judge, Kakinada for permanent injunction restraining the plaintiff from proceeding with the construction. In spite of the same, plaintiff proceeded with the construction and also shops, fixed shutters, which are in violation of Master Plan sanctioned by the Government to Kakinada Municipality in G.O.Ms.No.389, dated 10-09-1975. No doubt, the Municipal authorities returned the plan belatedly stating that the plaintiff commenced the construction in violation of western set backs and illegal constructions are stopped, and accordingly dismissed the appeal. Heard the learned counsel for the appellant on admission. Even assuming that the plan submitted by the plaintiff—society has not been approved within 60 days and if the plaintiff wants to make construction, they have to issue notice about their intention to proceed with the construction under the deemed provision. But no notice as such has been issued by the plaintiff making clearly its intention to proceed with the construction. Even on the deemed approval, no construction can be made in contravention of Building Rules and Zoning Regulations. When the plaintiff failed to establish the construction of shops is not prohibited under the Zoning Regulations, this Court cannot grant any injunction against the Municipality. I see no question of law, much less substantial question of law, to admit the Second Appeal and it is accordingly dismissed. _________________ A.GOPAL REDDY, J. 26-03-2010 Murthy