HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 4697 OF 2009. DATED 15th December, 2010. BETWEEN Alakram International Trading Company Pvt. Ltd., Rep. by its Director Sri AlakramSatyanandam …Petitioner And The Greater Visakhnapatnam Municipal Corporation, Visakhapatnam, rep. by its Commissioner. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 4697 OF 2009. ORDER: Aggrieved by the action of the respondent-Municipal Corporation in not granting Floor Space Index (FSI) to an extent of 841.50 meters to the petitioner building in its order vide BA No.2006-BA-11741/ACP-II/G3, dated 22.03.2007 as provided under G.O.Ms.No. 33 MA & UD Department, dated 03.02.2001, the present Writ Petition is filed. It is stated that pursuant to the application submitted by the petitioner on 5.9.2006 to the respondent-Municipality, for the grant of necessary permission for construction of building with Cellar for parking and Ground plus three upper floors in the land purchased by it in Sy.Nos. 653 to 683, bearing Door No. 47-3-24, Allipuram Ward, Division No. 28 of Visakhapatnam Municipal Corporation, and, complying with the necessary requirements mentioned by the respondent in its letter dated 13.3.2007, the respondent-Municipal Corporation granted permission to the petitioner for construction of commercial building in the land admeasuring 413.86 Sq.meters, vide its letter dated 22.3.2007, having considered the application in accordance with G.O.Ms.No. 423, dated 31.7.1998. In the said permission, the respondent has allowed FSI to the extent of 765.92 square meters only and not allowed for the remaining area of 75.58 sq. meters. It is the further case of the petitioner that as it is entitled for the full extent of FSI, to which it applied for, it has made construction in 4th floor in November, 2007 with a hope that the same can be regularized through the Government Scheme. But, however, the respondent-Corporation demolished the said construction. It is stated that aggrieved by the said demolition, the petitioner filed suit in O.S.No. 473 of 2008 on the file of the Court of the learned III Additional Judicial Civil Judge, Visakhapatnam, wherein, an injunction was granted in favour of the petitioner, and, on contest by the respondent-Municipality, the same was modified to that of status quo and the said order is still continuing. Thereafter, the petitioner has filed representations on 2.1.2009 and 13.2.2009 before the respondent-Corporation to grant necessary permission for availing balance FSI. As no action was taken by the respondent- Corporation on the said representations, the petitioner has filed the present Writ Petition. In response to the Rule Nisi issued by this Court on 6.3.2009, the respondent-Corporation filed counter affidavit denying the averments made in the affidavit filed in support of the Writ Petition. Inasmuch as the counter affidavit filed by the respondent- Corporation is not clear as to how the petitioner is not entitled to the benefit of G.O.Ms.No. 33, dated 3.2.2001, this Court by docket order dated 2.4.2009 directed the respondent to file additional counter affidavit with all necessary documents. Pursuance to the said order, the respondent-Corporation filed additional counter affidavit. In the additional counter affidavit, it is stated that the petitioner filed the representations dated 2.1.2009 and 13.2.2009 without requisite plans and the same were disposed of on 30.3.2009 rejecting the request of the petitioner. It is stated that the petitioner is not entitled for any construction in fourth floor as the building constructed so far itself is in the plinth area of 915.56 sq. meters exceeding permissible limit of 841.50 sq. meters, which is contrary to G.O.Ms.No. 33, dated 3.2.2001. It is further stated that the petitioner submitted another representation on 4.4.2009 enclosing the building plans mischievously, which also was rejected on 13.4.2009 stating that the area of existing building itself is exceeding the permissible limit as provided in G.O.Ms.No.33, dated 3.2.2001. It is the specific case of the respondent Corporation that taking advantage of BPS application, the petitioner tried to construct in the balance vacant portion in the fourth floor un-authorizedly and when the respondent interfered with the same, the petitioner filed O.S.No. 473 of 2008, and, on contest, the said OS, the interim injunction granted earlier was modified to that of status quo. Though the Civil Court directed to maintain status quo, the petitioner proceeded with additional construction in the fourth floor. Therefore, the respondent Corporation intervened and stopped the construction on 14.5.2008. It is to be noted that the respondent-Municipal Corporation has power to demolish any portion of the building constructed in violation of law. The disputed question as to whether the construction was made in violation of provisions of the Act, Bye- laws, Rules and Regulations is a matter which cannot be gone into by this Court sitting under Article 226 of the Constitution of India. The respondent-Corporation says that the petitioner made construction in violation of law and bye-laws, Rules and Regulations, whereas, the petitioner says that it is not. It is not open to this court to go into these disputed questions of fact. It is for the competent authority to reach their decision by taking into account relevant considerations. It is not out of place to mention here that the Courts have power to see that the executive acts should be lawfully. From the factual matrix, it is known that the petitioner has submitted representations without enclosing requisite and necessary plans. The learned Counsel for the petitioner submitted that the petitioner may be given an opportunity to submit a detailed representation with necessary plans as required under law and on such filing, the respondent may be directed to consider and dispose of the same. Having heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondent-Corporation, this Writ Petition is disposed of, giving liberty to the petitioner to submit a detailed representation with necessary plans as required under law. On such filing of the representation, as directed above, the respondent shall consider and dispose of the same, in accordance with law, within a period of one month from the date of submission of the representation as directed. Subject to the above direction, the Writ Petition is disposed of. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 15th December, 2010. Msnro