THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 3231 of 2003 Date: 8.2.2010 Between: Sri S.V.R.K. Subramanyam ..... PETITIONER AND Bhimavaram Municipal Council and others. .....RESPONDENTS Counsel for the Petitioner : Sri .A.V. Sesha Sai Counsel for the Respondent Nos. 1 to 3: Sri S. Nageswara Reddy Counsel for the Respondent No. 4 : Sri Polisetty Radha Krishna The Court made the following : THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 3231 of 2003 ORDER: This writ petition is filed for a mandamus to set aside notice bearing UC No. 2/2003/B.O. No.III, dated 18.2.2003 issued in the name of respondent No.2 and signed by respondent No.3 as illegal and without jurisdiction. Heard Sri A.V. Sesha Sai, learned counsel for the petitioner, Sri S. Nageswara Reddy, learned Standing Counsel for respondent Nos. 1 to 3 and Sri Polisetti Radha Krishna, learned counsel for respondent No.4. The petitioner claims to be the absolute owner and possessor of land admeasuring 986.53 sq. yards in R.S. No. 496/5 situated at Bhimavaram, West Godavari District, having purchased the same from one Sri Yerra Nageswara Rao, S/o. Surya Rao under a registered sale deed executed in the month of November, 1997. The petitioner claimed that his predecessors-in-title have constructed one asbestos roofed shed and that after he purchased the property, he got the same repaired and had been using the same for the purpose of keeping waste material. The petitioner got the property assessed to property tax. The petitioner received notice dated 14.2.2003 addressed in the name of respondent No.2 and signed by respondent No.3. The said notice is styled as ‘provisional notice’ wherein the petitioner was directed to stop the construction, which was commenced without obtaining permission from the Municipality and to remove the unauthorised constructions. The said provisional notice was issued in exercise of the power of respondents 2 and 3 under Section 228(1) and (2) of the A.P. Municipalities Act, 1965 (for short ‘the Act’). On receipt of the said notice, the petitioner submitted his explanation wherein he has stated that he purchased the site along with an asbestos roofed shed and that thereafter he repaired the same and had been using it as a store to keep waste material. He made a request to levy compounding fees instead of resorting to demolition. In support of his request, he relied on certain decisions of this Court. Upon considering the explanation, respondent No.3 issued proceedings dated 18.2.2003 on behalf of respondent No.2, whereby he confirmed the provisional order in exercise of his power under Section 228(3) of the Act. The petitioner was accordingly directed to remove the unauthorised structures within three days. The petitioner filed the present writ petition questioning both the provisional notice and the final order. In the counter affidavit filed by respondent No.2, it is inter alia stated that the petitioner is the builder of an apartment called Sri Matha Apartments, and after construction of the said apartments, he sold some flats to certain individuals and that while constructing the apartment, the petitioner has not shown existence of any structure in respect of which the impugned proceedings were issued. He also denied the plea of the petitioner that his predecessors-in-title have constructed a building with A.C. sheet roof. Respondent No.2 also denied the averment of the petitioner that he is the absolute owner of the said site and stated that the said site forms part of the undivided property of the purchasers of the apartment. It is further stated that the petitioner has unauthorisedly constructed shops and a residential flat in the stilt floor meant for parking area and has also constructed shops on the front side of the apartment abutting the road violating the building rules and master plan and that the un-authorised construction made in the stilt floor and on any area affecting the master plan area cannot be regularised. It is further stated that on considering the explanation of the petitioner, the same was found unsatisfactory and accordingly the impugned order was passed under Section 228(3) of the Act. The impleaded respondent, i.e. respondent No.4 also took similar stand as taken by Respondent No.2 in the above mentioned counter affidavit. For the purpose of disposal of this writ petition, it is not necessary to refer in detail to the averments contained therein. At the hearing, learned counsel for the petitioner advanced two contentions, namely; (1) that under the provisions of the Act, it is respondent No.2 who is competent to issue the provisional notice and the confirmation order under Section 228 of the Act and that respondent No.3 had no jurisdiction to issue those proceedings and that (2) even assuming that that Respondent No.3 had power and jurisdiction to issue the impugned proceedings, the confirmation order passed by him is illegal as respondent No.3 has not taken into consideration the explanation offered by the petitioner. The learned Standing Counsel for respondent Nos. 1 to 3 and the learned Counsel, Sri Polisetty Radha Krishna appearing for respondent No. 4 opposed the contentions of the learned counsel for the petitioner. The learned Standing Counsel appearing for respondents 1 to 3 invited my attention to the averments contained in para-7 of the counter affidavit filed by respondent No.2, wherein it is stated that respondent No.3 issued the provisional and final notices in exercise of his power delegated by the Commissioner under Section 56(3) of the Act. The learned Standing Counsel has produced a copy of the proceedings bearing Order No. 1/2002/C1, dated 7.12.2002, by which, respondent No.2 delegated the power to respondent No.3. The learned Standing Counsel further submitted that as the structure raised by the petitioner is admittedly unauthorised, respondent No.3 directed demolition of the said structure and therefore, the impugned proceedings do not suffer from any illegality. Sri Polisetty Radha Krishna, learned counsel appearing for respondent No.4 has submitted that the petitioner, who is the builder of Sri Matha Apartments, committed several deviations in construction of the apartment apart from constructing the building in question for the purpose of shop rooms and that therefore the said building which was constructed without any permission is liable for demolition. He further submitted that respondent No.3 has clearly stated in his counter affidavit that the petitioner has unauthorisedly constructed a residential flat and shops in stilt floor and ground floor, meant for parking area and therefore they are liable to be demolished. With regard to the first contention of the learned counsel for the petitioner, it is not in dispute that respondent No.2 is empowered to delegate his power exercisable under Section 228 of the Act to his Subordinate Officer. In the face of Office Order dated 7.12.2002, the existence of which is not disputed by the learned counsel for the petitioner, it cannot be said that respondent No.3 had no authority to issue the impugned proceedings. The first contention of the learned counsel is, therefore rejected. With regard to the second contention of the learned counsel that the confirmation order has not referred to the explanation submitted by the petitioner, admittedly, the structure in respect of which the impugned proceedings have been issued was constructed without permission. Irrespective of whether the petitioner’s predecessors-in-title have constructed or the petitioner has constructed the said structure as contended by the respondents in their respective counter affidavits, the fact remains that the said structure is wholly unauthorised as no permission has been obtained for raising the said construction. In the face of this admitted fact, I do not find any merit in the submission of the learned counsel for the petitioner that the confirmation order should be set aside as the same does not refer to the contents of the explanation offered by the petitioner. The very purpose of the Act is to ensure planned development and to regulate building activity. Therefore, the petitioner, who has violated the provisions of the Act and is allegedly causing inconvenience to the residents of the apartments, which were sold by him is not entitled to any indulgence by this Court. In this view of the matter, I do not find any reason to interfere with the impugned proceedings. Sri Polisetty Radhakrishna appearing for respondent No.4 has strenuously argued that Respondent Nos. 1 to 3 are bound to demolish all the structures, which are unatuhroisedly constructed by the petitioner. A perusal of the notice dated 14.2.2003 issued under Section 228(1) and 228(2) of the Act shows that the notice was issued only to the extent of a structure, which was raised at one corner on the open site situated within the premises of Sri Matha Apartments. However, I find force in the submission of the learned counsel for respondent No.4 that there is no reason why the said notice was confined only to that structure when respondent No.2 in his counter affidavit has categorically stated that the petitioner has constructed residential flat and shop rooms in the stilt floor, which is meant for parking. Since representations were already made by respondent No.4 on 13.2.2003 and 15.2.2003 for removal of the unauthorised constructions, respondents 2 and 3 shall act in accordance with law for removal of those structures. For the above mentioned reasons, the writ petition is dismissed. No costs. __________________________ C.V. NAGARJUNA REDDY,J DATE: 8th February, 2010 pnb