* THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY + WRIT PETITION No.2698 of 2005 % Dated 15-4-2009 #Dr.E.A.S.Sarma and two others. … Petitioners Vs. $ The Government of Andhra Pradesh, Represented by its Principal Secretary, Municipal Administration, Secretariat, Hyderabad and three others. … Respondents ! Counsel for the petitioners: Sri K.S.Murthy. ^ Counsel for the respondents: Sri N.Ranga Reddy for R.2 Sri D.Hanumantha Rao for R.4 None appeared for R.1 and R.3. < Gist: > Head Note: ? Cases referred: 1) AIR 1950 SC 27 2) AIR 1983 SC 803 3) AIR 1978 SC 597 4) AIR 1983 SC 109 5) AIR 1986 SC 180 6) AIR 1991 SC 101 7) (1995) 3 SCC 42 8) (1995) 2 SCC 577 9) (2001) 5 SCC 101, 10) (1999) 6 SCC 552 11) (2005) 3 SCC 91 12) 2000(2) ALD 411 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WEDNESDAY, THE FIFTEENTH DAY OF APRIL, TWO THOUSAND NINE ONLY WRIT PETITION No.2698 of 2005 Between: Dr.E.A.S.Sarma and two others. … Petitioners And The Government of Andhra Pradesh, Represented by its Principal Secretary, Municipal Administration, Secretariat, Hyderabad and three others. … Respondents Counsel for the petitioners: Sri K.S.Murthy. Counsel for the respondents: Sri N.Ranga Reddy for R.2 Sri D.Hanumantha Rao for R.4 None appeared for R.1 and R.3. This Court made the following: JUDGMENT:- This Writ Petition reflects the indignation of the petitioners, the inertia of the official respondents in implementation of laws in force and insensitivity of respondent No.4 to the problems caused to the petitioners on account of his raising constructions in deviation of the approved building plan and using residential buildings for commercial purposes in deviation of the zoning regulations. The facts, which constitute the core of the Writ Petition, are not in dispute. Respondent No.4 obtained permission from respondent No.2 for construction of a residential building consisting of stilt, ground, first and second floors and also partly third floor, vide: proceedings BA No.1740/99/ACP-I, dated 22-12-1999. The petitioners live in the neighbourhood of the offending structure. Not only that, respondent No.4 unauthorisedly constructed the third floor over and above what was permitted and a pent house on the fourth floor, but also he put the residential building to a commercial use. He has also constructed the building in deviation of the sanctioned plan obtained by him in respect of set backs, parking and FSI. These facts are evident from the endorsement given by the Commissioner of respondent No.2-Municipal Corporation, Visakhapantaam, on 1-12-2004 after persistent efforts of petitioner No.1 to get the official conformation of these deviations indulged in by respondent No.4. It is useful to reproduce the contents of this endorsement herein below: “With reference to the above cited it is to inform you that this office has granted approval in favour of M.Suryanarayana Raju for the construction of residential building consisting of Stilt, Ground, First, Second and partly in third floor, vide proceedings in B.A.No.1740/99/ACP-I, Dt.22-12-99 as per the G.O.Ms.No.423 MA, Dt.31-7-98. The party was constructed partly in 3rd floor and penthouse in 4th floor is unauthorisedly and also converted the said structure as Pallavi Nursing Home, which is commercial purpose. The party has deviated the sanctioned plan granted by this office in respect of setbacks, parking, coverage and FSI are not maintained for which action has been taken on unauthorized construction and issued a notice by this office U/s.452 of HMC Act, 1955 in pursuance of the orders passed by the Hon’ble High Court in W.P.No.14360/01 Dt.16-7-01. Soon after receiving the said notice, the party filed a civil suit against the Municipal Corporation in O.S.No.851/01 and the same is still pending in the court of law. In view of the pendency of the said civil suit, further action will be taken soon after disposal of the said order”. The correspondence run by petitioner No.1, who served this State and the Country in various capacities as a Civil Servant and retired as Secretary, Government of India, only demonstrates the complete lack of accountability on the part of the highest civic body viz., Municipal Corporation of Visakhapatnam, in dealing with the bonafide public grievances of its subjects. Letters dated 14-8-2004, 11-10-2004 and 21-10-2004 filed by the petitioners, addressed to respondent No.2, truly articulate the agony which tens of thousands of innocent citizens are suffering on account of reckless approach of builders, such as respondent No.4, and lackadaisical attitude of the civic bodies and urban development authorities in preventing construction and use of buildings contrary to the Master Plan, Zonal Regulations and approved building plans. Letter dated 14-8-2004 gives a graphic description of the woes suffered by the residents of Gokhale road, Maharanipet, Visakhapatnam. It is appropriate to refer to the contents of this letter, herein below: “These two hospitals were built in very limited space that was not enough even for one hospital, leave alone two. They two attract a large number of patients and their relatives but the hospital authorities have not made any internal arrangement for the parking of vehicles. As a result, vehicles are parked in front of almost all houses along the road on which these hospitals stand and also the adjacent by lanes, causing continuous clogging of the roads used by us. The resultant noise and air pollution are causing a great deal of inconvenience and distress to the residents. In the absence of basic public conveniences such as toilets, drivers of the patients’ vehicles and the attendants that accompany the patients are using the by lanes as public toilets affecting the hygiene and sanitation in this residential area. The roads in this area are littered all over as a result of the additional traffic due to these hospitals. The existence of these two hospitals has also led to unregulated commercial activity increasing day by day in our neighborhood. There are many senior citizens among the residents in this area; quite a few of them suffer from heart and other ailments. Noise and air pollution affects their health adversely. We understand that CARE is moving out shortly, only to be replaced by another private hospital that would only add to the distress of the residents here. It is not clear as to how such commercial activity has been permitted in the first instance in an area that has remained predominantly residential for several decades. Even assuming for a moment that there is valid permission for setting up hospitals in this area, we are sure that the Municipal Corporation would have stipulated the condition that the management of each hospital should make adequate arrangements for vehicle parking and public conveniences within their respective premises. In case such a condition has been stipulated, does it stand violated? Against the above background, we would request you to review the permission granted for the setting up of hospitals and other commercial ventures in this residential area. Where a permission had already been granted and the Corporation has some legal difficulty in revoking it, at least, the hospital management in each case should be compelled to provide adequate parking space along with toilet and other facilities within their own premises so that the residents in this area may not be put to inconvenience. In this connection, we would request you to consider action as follows: · To ensure that the two hospitals provide their own parking lots. · To restrict vehicles of visitors to the hospitals being parked on the main and the arterial roads. · To restrict the two hospitals from adding to the litter on the tow roads. · To compel the hospitals to provide public bathrooms and garbage disposal facilities within their respective premises. · To regulate the commercial activity in the neighborhood. We would request you to ensure that action on these lines is taken at the earliest”. Nearly two months passed by from the date of receipt of the said letter by the Commissioner of respondent No.2-Corporation and petitioner No.1 heard nothing from the former. Therefore, petitioner No.1 had to remind him through his letter dated 11-10- 2004. In this letter, he referred to the residents facing an additional problem on account of alteration of a house adjacent to his and its conversion into a Nurses Hostel, which appeared to be a part of the Nursing School started in their locality within the premises of Pallavi Hospital. Petitioner No.1 wanted to know from the Commissioner whether the promoters of the Nursing School and the Hostel have taken the necessary clearances from various authorities, including the Municipal Corporation, and expressed his worry that location of Nurses Hostel with its large number of inmates will affect sanitation in the area, add to traffic congestion and disturb the peaceful environment. He reminded the Commissioner that his earlier complaint did not evoke any response. As petitioner No.1 has yet to find an answer to his earlier two representations, he has chosen this time to address another representation to the Commissioner eo nomine. In the absence of definite information coming-forth from the Commissioner, petitioner No.1 had posed many questions to him apart from reiterating the agony of the residents in the following words: “In my earlier letters, I had referred to the fact that neither CARE nor Pallavi has made adequate provision for parking of vehicles by their clients and for providing the necessary toilet and other sanitation facilities for those who accompany the patients. What were the conditions on which these two hospitals had been allowed to come up in the first instance? If certain conditions were indeed stipulated then, were they in full conformity with the building bye-laws and the rules? If not, there is a need to fix the responsibility for departing from the bye-laws and take necessary action, as it involved public interest. Even assuming for a moment that the Corporation had indeed stipulated conditions in conformity with the bye-laws, to what extent have the two hospitals complied with those conditions? I suspect that the two buildings were allowed to be constructed in violation of the zoning regulations, the building bye-laws and other relevant rules. I also get the feeling that the two hospitals have not complied with whatever conditions that the Corporation had then stipulated. Many corporate hospitals in the city are perhaps guilty of violating the building bye-laws and a detailed investigation will bring to light the violations, if any, and the persons responsible for it. I would not be surprised if the investigation also revealed serious omissions and commissions, amounting even to malpractices. The Municipal Corporation has responsibility to its citizens and it cannot be a silent spectator to the goings-on. There is public interest involved in this entire matter as, (i) the lands of some of the residents were acquired in the past (without payment of full compensation) by the Municipality for widening the road on which the buildings housing CARE & Pallavi stand today and the same lands are now being allowed to be used by the very same hospitals for parking their customers’ vehicles, (ii) the resultant traffic congestion has affected the health of the residents and (iii) the failure on the part of the hospital authorities to provide sanitation facilities has worsened the hygiene of the neighbourhood. The other residents in this area have also addressed similar letters to you and they too are awaiting action from your side. Every day delay on your part in responding to our complaint would imply that much more of health hazard to all the residents in this area and the other consequential inconveniences to them, for which we would necessarily hold the Corporation responsible”. The last of the letters referred to above appeared to have woken up the Commissioner from his deep slumber with his giving endorsement dated 1-12-2004, referred to and reproduced above, wherein he informed petitioner No.1 that in view of pendency of the civil suit no action was being taken and he promised to take action after disposal of the suit. At this juncture it could be of relevance to refer to the relentless efforts of respondent No.4 to keep the petitioners and other residents of the area at bay by approaching one Court or the other. He filed Writ Petition No.14360 of 2001, wherein he complained to this Court that contrary to the assurance given by the official respondents to permit him to construct additional floor area in lieu of the land lost by him in road widening and in spite of his application for allowing the additional floor area pending, the official respondents were threatening to demolish the structures admittedly constructed in deviation of the sanctioned plan. This Writ Petition was thrown out by this Court in limine by describing the same as meritless. This Court gave a categorical finding to the effect that respondent No.4 made the construction without any prior sanction or approval of plan and rejected his theory that the officers of respondent No.2-Corporation orally gave some assurance that they would grant permission for construction of extra FSI. However, respondent No.4 succeeded in his second line of defence, viz., that the proposed action for demolition should be preceded by a notice under Section 636 of the Hyderabad Municipal Corporations Act, 1955 (for short “the 1955 Act”). Accordingly, while dismissing the Writ Petition, this Court directed respondent No.2 to serve a notice under Section 636 of the Act before actually demolishing the offending portion of the building. This leeway was enough for respondent No.4 to approach the Court of I Additional Senior Civil Judge, Visakhapatnam, by filing O.S.No.851 of 2001 for permanent injunction restraining respondent No.2-Corporation from interfering with the building constructed by him and demolishing the third floor in part and the fourth floor-penthouse. As it happens quite often, the civil Court extended its helping hand by granting temporary injunction. When the petitioners eventually found their way to this Court by way of the present Writ Petition in the year 2005 complaining of the thorough failure of respondent No.2 to implement the Zonal Regulations and to give effect to the Municipal Laws governing constructions and use of the building, respondent No.2 was quick in countering the Writ Petition by coming out with the plea that any action, if taken against the offending construction, amounts to contempt of Court in view of subsistence of interim order granted in favour of respondent No.4 in O.S.No.851 of 2001. What intrigues this Court is lack of any effort on the part of respondent No.2 in seeing that the interim order granted by the civil Court is vacated. While respondent No.2 has not claimed that it has made any effort in this regard, in the absence of any such plea it is reasonable to presume that it stayed its hands off, the moment respondent No.4 approached the civil Court and obtained the interim order as though it is relieved of the burden of pulling down a structure, which was admittedly raised in deviation of the building permission. That respondent No.2 has used the interim order of the civil Court as a façade is evident from its inaction in taking any steps to carry out the decree of the civil Court, which mercifully disposed of O.S.No.851 of 2001 by its judgment and decree dated 19-11-2005. The petitioners filed a copy of the decree, the operative portion of which runs as under: “1) that the suit be and the same is hereby decreed by directing the defendant not to interfere with the plaintiff’s peaceful possession and enjoyment except following the due process of law, 2) that each party do bear their own costs”. While the shelter for respondent No.2 to justify its inaction was removed with the disposal of the suit under the decree referred to above, which cleared the decks for it to demolish the building to the extent of the unauthorized constructions by following due process of law, for nearly 3½ years respondent No.2 has not been troubling itself to see that the long pending grievances of the people of the locality are redressed by demolishing the offending structures and thereby ensuring implementation of Laws to which it owes its existence and survival. At the hearing, learned standing counsel for respondent No.2 has no explanation whatsoever to offer for his client in not coming out of the hibernation at least after the disposal of O.S.No.851 of 2001. The learned counsel for respondent No.4, however, made a frontal attack on the petitioners, by taking exception to their conduct in launching a tirade only against his client while leaving out scores of similar offenders who are stated to have built castles in multitude giving all legal norms to wind. Of course, this argument coming forth from him can only be understood as advanced in despair, because in the absence of any malafides attributed to the petitioners for choosing respondent No.4 alone, the petitioners’ failure to seek action against the persons, who are also guilty of brazen violation of the Municipal Laws, can never be a relevant factor for this Court in ensuring that at least in the cases coming up before it the Laws made by the Legislature will not remain a dead letter. Our Constitution recognized the concept of local self-Government and empowered the respective State Legislatures to make Laws in this regard under Entry-5 to List-II of Schedule-7. The Andhra Pradesh State Legislature enacted the 1955 Act, which repealed the Hyderabad Municipal Corporations Act, 1950. The scheme of the 1955 Act as evident from it various provisions reveals that in order to regulate construction of buildings and to provide civic amenities to the residents living within the Corporation area limits, the said Legislation has been enacted. The Municipal Corporation has been constituted as a body corporate having perpetual succession and common seal with right to sue and the liability of being sued in its name. Respondent No.2 was created under the provisions of the Visakhapatnam Municipal Corporation Act, 1979. Section 7 of the said Act makes the provisions of the 1955 Act applicable to the Visakhapatnam Municipal Corporation. The State Legislature has come out with another substantive piece of legislation by enacting Andhra Pradesh Urban Areas (Development) Act, 1975 (for short “the 1975 Act”). The long title of this Act reveals that this was intended to provide for development of urban areas in the State of Andhra Pradesh according to plan and for matters ancillary thereto. The concept of planned development of urban areas is the main theme of the 1975 Act. This Act provides for declaration of urban areas in the State and constitution of urban development authorities for these areas. Chapter-III of this Act provides for preparation and sanction of master and zonal development plans. Section 15 of the 1975 Act prohibits use or permit to be used any land or building situated in any zone otherwise than in conformity with the master and zonal development plans. The Government of Andhra Pradesh in exercise of its powers conferred on it by the 1975 Act approved the master plan and zoning regulations for Visakhapatnam Urban Development Authority, vide G.O.Ms.No.274, Municipal Administration, dated 23-5-1989 as amended by G.O.Ms.No.440, Municipal Administration, dated 9-8- 1989. Rule 16.5.a mandates that no development shall be in contravention of the said rules and no land, premises or building shall be changed or put to use not in conformity with the provisions of those Rules. Rule 16.6.a of the Rules, inter alia, adumbrates that where the use of a site or premises is specifically designated in the development plan, it shall be used only for the purpose so designated. Rule 16.10 divided the urban area into primary residential zone, mixed residential zone, commercial zone, light industrial zone, general industrial zone, special and hazardous industrial zone, institutional zone, open space and recreational zone, transportation zone and agricultural zone. Under the primary residential zone, buildings or premises shall be normally permitted only for the following purposes and accessory uses: “i) Any residence including dwelling detached, semi- detach tenements or flats. ii) Hotels, and Dormitories not exceeding 200 Sq.mts. floor area. iii) Nursery, Primary and High School and Schools of Commerce including tutorial institutions. iv) Parks and playgrounds occupying an area not exceeding two hectares. v) Taxi stands, car parking. vi) Farms, gardens, nurseries occupying an area not exceeding two hectares. vii) Installations of Motor for pumping water air conditioning and lifts. viii) Cottage industries and craft centers run by power upto five horse power. ix) Storage of domestic cooking gas cylinders and kerosene subject to the production of necessary clearance certificate by the parties concerned from the Director of Fire Services and the Department of Explosives of the Government of India. The construction of godowns for the storage of cooking gas cylinders and kerosene should also conform to the building rues and other development control rules in force, and Andhra Pradesh Urban Land (Ceiling and regulations) Act, 1976”. However, the land situated in primary residential zone may be put to use with the special sanction of the urban development authority in the following cases: i) Professional consulting offices of the resident and incidental uses there to occupying a floor area not exceeding 40 Sq. mts. ii) Petty shops dealing with daily essentials including retail sale of provisions, soft drinks, cigarettes, newspapers, tea stalls, confectionary retail shops, mutton stall and milk kiosks, cycle repair shops, tailoring shops and trades other than declared as offensive (Annexure-II) may be permitted subject to a floor area not exceeding 20 Sq. mts. iii) Boarding and Lodging and restaurants not exceeding 100 sq.m. in floor area. iv) Public utility, buildings like sewerage pumping stations, water works, fire stations, telephone exchanges, government and semi-government offices, serving the local needs libraries, bus terminals and depot yard occupying a floor area not exceeding 200 sq. mt. v) Community halls, clubs, religious buildings, Gymnasium, Welfare Institutions, occupying a floor area not exceeding 300 sq.m. vi) Clinics, hospitals, dispensaries, nursing homes, occupying a floor area not exceeding 300 sq.m. vii) Parks and play grounds occupying a site area not exceeding 4 hectares. viii) Petrol filling stations and service stations with installation not exceeding 5 H.P. ix) Markets and areas for shops occupying an area of not more than 0.25 hectares. x) Installation of motor incidental to the permissible use noted above not exceeding five Horse Power be allowed at the discretion of the Authority. Ten Horse power installation may for running flour mill, oil rotary mills incidental to their uses”. While the 1975 Act regulates land use in accordance with the master plan prepared and approved in conformity with the zoning regulations, the provisions of the Visakhapatnam Municipal Corporation A c t, inter alia, regulate construction of buildings in accordance with the approved plan and empower the Corporation to take action in cases of constructions made contrary to the approved plans. Rules and Building Bye-laws were also made in accordance with the 1955 Act specifying the parameters, such as set backs and open spaces in constructing buildings. These two Acts, Regulations and Rules made thereunder, thus ensure not only planned development of urban areas but also that the building activities are regulated in accordance with the provisions contained therein. Sections 454 and 636 of the 1955 Act provide for the procedure to cause removal of constructions made in deviation of the sanctioned plan. Obviously being conscious of environmental degradation and the haphazard growth of the urban areas, the Parliament introduced amendments to the Constitution through its 74th amendment, which came into effect from 1-6-1993. Part IX-A was introduced along with the Twelfth Schedule. Articles 243P to 243ZG were inserted by way of the said amendment. Under Article 243Q, constitution of Municipalities, which include Municipal Corporations for larger urban areas, by the respective States is made mandatory. Article 243W empowered the State Legislatures to endow the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and the laws enacted for this purpose may contain provisions for the devolution of powers and responsibilities upon the Municipalities, subject to such