* THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +WRIT PETITION No.31039 OF 1998 %Dated 26.11.2008 #Tathineni Satyanarayana …Petitioner. and $ Vijaywada, Guntur, Tenali Urban Development Authority, Vijayawada-II, Krishna District. …Respondent ! Counsel for petitioner: Mr.G.Mallikarjuna Rao ^ Counsel for Respondent : Smt.K.Aruna (SC for V.G.T.M.U.D.A.) < GIST: > HEAD NOTE: ? Cases referred IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 31039 of 1998 Between: Tathineni Satyanarayana, S/o Tatineni Gopaiah, R/o Porank Village, Penamaluru Mandal, Krishna District. ..... PETITIONER AND Vjayawada, Guntur, Tenali Urban Devlopment Authority, Vijayawada-II, Krishna District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order of the Respondent in Rc.No.C8/3531/97 dt.23-10-98 directing the Petitioner to demolish the building in R.S.No.404/2A of Poranki Village, Penamaluru Mandal, Krishna District, as illegal, arbitrary, without jurisdiction, opposed to principles of natural justice and null and void. Counsel for the Petitioner:MR.G.MALLIKARJUNA RAO Counsel for the Respondent: K.ARUNA(SC FOR V.G.T.M.U.D.A) The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION No.31039 of 1998 ORDER: The maternal grandfather of the petitioner, by name, Boda Kotaiah, endowed an extent 0.10 cents of land in R.S.No.404/2A of Poranki Village, Krishna District, under a registered trust deed, dated 04.11.1936. Disputes arose among the legal heirs of Boda Kotaiah, and the matter landed before this Court in the form of W.P.No.11369 of 1997 and thereafter, W.A.No.706 of 1997. Suffice it to say that, through its order, dated 04.08.1997, a Division Bench of this Court entrusted the land to the petitioner, on a condition that he shall bring about a building on the land by spending a sum of Rs.3.5 lakhs and that he shall make available a sum of Rs.10,000/-, per year, for its maintenance. 2. Poranki village is within the limits of the respondent-authority. As required under the provisions of the A.P. Urban Areas (Development) Act, 1975 (for short ‘the Act’), the petitioner submitted an application on 27.06.1997, with a request to accord permission to construct ground plus first floor. The application was returned on 01.08.1997, with certain objections. The petitioner resubmitted the same on 15.09.1997, by complying with the objections. Thereafter, no action was taken. 3. Taking the view that permission is deemed to have been granted by operation of Section 14 of the Act, the petitioner commenced the construction. The respondent issued a notice, dated 28.01.1998, under sub-section (1) of Section 42 of the Act, indicating four deviations on the part of the petitioner. It is represented that the petitioner preferred an appeal to the appellate authority and that no steps were taken thereon. However, he was served with separate notices, dated 23.10.1998, issued under Sections 42(1) and 43(1) of the Act, on 03.11.1998. It is alleged that on 05.11.1998, the officials of the respondent came to the site with the police help and attempted to demolish the building. At that stage, the writ petition is filed and this Court stayed the demolition of the building. 4. The petitioner contends that the building was constructed in accordance with the plan submitted to the respondent and there is absolutely no basis for the impugned notices. It is also stated that the notices, dated 23.10.1998, were, in fact, signed on 27.10.1998, and the respondent is not sure as to the provision under which it intends to take action. The petitioner further contends that the respondent is applying the provisions, which are meant for different situations. 5. The respondent filed a counter-affidavit denying the allegations of the petitioner. It is stated that the petitioner encroached into Government land and had undertaken construction without there being a sanctioned plan. The nature of deviations said to have been made by the petitioner is also mentioned. 6. Hard Sri Challa Dhanamjaya, learned counsel for the petitioner, and G.Manohar, learned Standing Counsel for the respondent. 7. The circumstances under which the petitioner had to commence the construction are somewhat peculiar. The land was endowed by his maternal grandfather, for a public purpose. Some of the legal heirs sought to make available the land to the police department, contrary to the purpose mentioned in the deed, dated 03.11.1936. At that stage, the petitioner approached this Court. To test the bonafides of the petitioner, this Court required him to express his willingness to construct a building for the benefit of Sadhus. In response, the petitioner filed an affidavit. Taking the same into account, a Division Bench of this Court issued the following directions: “We direct, accordingly that to the exclusion of all concerned the property in question shall be treated as property belonging to the public charitable trust called “Bode Kotaiah Bhavan”, construction of which shall be completed by the appellant herein within a period of six months from the date of sanction of the plan by the Vijayawada-Guntur-Tenali Urban Development Authority, for which purpose the appellant shall make necessary application within one week and the competent authority shall finalise within one month of the receipt of the application, failing which the competent authority under the A.P.Charitable and Hindu Religious Institutions and Endowments Act shall be entitled to recover from the appellant Rs.3,50,000/- and take possession of the land for which no proceeding will lie, for the appellant undertakes to raise or file no proceedings. Respondents undertake to vacate the land in favour of the charity and cooperate in the establishment of the Bhavan and continuance of all the trust activities envisaged in accordance with the scheme in the affidavit.” 8. In his anxiety to fulfil the commitment given by him to the Court, the petitioner submitted an application well in advance to the respondent. The application was returned on 01.08.1997, with certain objections. It was mentioned that title deeds are to be enclosed. The petitioner complied with the same and resubmitted the plan on 15.09.1997. Thereafter, the respondent did not take any steps. 9. Sub-section (5) of Section 14 of the Act, mandates that in case no action has been taken on the application within 90 days, the permission shall be deemed to have been granted. Obviously, because of the time limit stipulated by this Court, the petitioner commenced the construction in the right earnest and brought into existence ground plus first floor. In the plan, he has also mentioned the setbacks. 10. The respondent started issuing notices, one after the other. Initially a notice, dated 12.12.1997, under Section 42(1) of the Act is said to have been issued, indicating certain reasons. There is nothing on record to disclose that this was followed up. Then came the notice, dated 28.01.1998. This also met with some fate. The actual action against the petitioner started with the service of notices, dated 23.10.1998. It is relevant to mention that the respondent was not sure as to the provision under which it intends to take action. Notices of the same date are issued under Sections 42 and 43 of the Act, which were signed on 27.10.1998. Both of them were served on the petitioner only on 03.11.1998. 11. As regards the action initiated under Section 41 of the Act, the respondent ought to have waited till the petitioner submitted his explanation. It is only when an order is passed that the petitioner was conferred with the right to prefer appeal. The respondent, however, swung into action, soon after service of the show cause notice. Such an action is totally untenable and contrary to the provisions of the Act. 12. The nature of action that can be undertaken under Sections 42, on the one hand, and 43 of the Act, on the other hand, is different and distinct. Whenever it is noticed by an authority that any work is commenced in contravention of the provisions of the Act, steps are to be taken under Section 43 of the Act. The provision enables the authority to require the concerned persons to stop the construction. Section 42 is generally invoked, after any structure is brought into existence and it provides for demolition of the illegal structures. It is difficult to imagine that the action under both the provisions can be initiated simultaneously. 13. Be that as it may, the show cause notice issued under proviso to sub-section (1) of Section 42 of the Act enabled the petitioner to submit the explanation within 15 days. Even assuming that an order adverse to his interest was passed, a remedy of appeal is provided. Such a facility was denied to the petitioner, since demolition was sought to be made hardly within two days from the date of service of notice. Therefore, there is a clear illegality in issuance of the impugned notices. 14. It is also relevant to examine the reasons mentioned in the notices. The deviations attributed to the petitioner are as under: 1) The construction is undertaken without permission. 2) In the event of the road on the western side of the building being widened to 30.48 metres, there would be a violation on the part of the petitioner to the extent of 14.6 metres length and 0.65 metres width. 3) As per the master plan, the land, where the construction is made, is shown as agricultural zone and residential buildings cannot be permitted on it. 4) As against the required six metres of open place on the southern side, nothing was left. A close look at these objections reveals that the first objection cannot be sustained, inasmuch as deemed permission has accrued to the petitioner by operation of sub-section (5) of Section 14 of the Act. The second objection is hypothetical and the respondent can certainly take action as and when the road is widened to the extent it was approved. The third objection cannot be raised, at this stage, once the deemed permission has accrued to the petitioner. The fourth objection was raised by applying the building bye-law, which is enacted in relation to building of height of 10 metres and more. The application submitted by the petitioner was only for ground plus first floor, which is less than 10 metres. Therefore, the parameters of a building of a larger height cannot be applied to the building of the petitioner. This discussion is undertaken not to make a final pronouncement upon the objections raised by the respondent, but only to drive home the point that the matter was not viewed from the corrective perspective. 15. It is not as if the petitioner intended to undertake a commercial venture and in his anxiety he has flouted the norms. The building was constructed with an endeavour to fulfil the commitment given by him to this Court. The respondent is under obligation to examine the matter in dispassionate manner, keeping in view the orders of this Court in earlier writ petitions as well as the objections. 16. The respondent alleges that the petitioner has put the building to commercial use. If that is so, there will be a serious violation on the part of the petitioner. The very object of constructing the building was to promote philanthropical activity. At the most, the petitioner can put part of the building to an income yielding use to augment the main purpose. The petitioner cannot put the entire building to commercial use. This, however, is a matter, which needs to be examined by the authorities of the endowments department. 17. Hence, the Writ Petition is allowed and the impugned notices are set aside. It shall be open to the respondent to issue fresh notices, keeping in view the observations made by this Court in this order. There shall be no order as to costs. _______________________ Dt.26.11.2008 L.NARASIMHA REDDY, J Note: LR copy to be marked. GJ