*THE HONOURABLE SRI JUSTICE G.BIKSHAPATHY AND *THE HONOURABLE SRI JUSTICE P.S.NARAYANA +Writ Petition Nos. 15716 OF 2004 AND Writ Petition No.22354 of 2004 % 13-04-2005 #Atluri Purushotham in W.P.15716 of 2004 1. P.G.K.Murthy and Others in W.P.22354 of 2004 …Petitioners VS. $ Vijayawada-Guntur-Tenali-Mangalaigiri Urban Development Authority Rep. By Vice-Chairman, Vijayawada and others. …Respondents ! COUNSEL FOR THE PETITINERS :MR.M.V.DURGA PRASAD AND MR. B.V.SUBBAIAH ^ COUNSEL FOR THE RESPONDENTS : G.P. FOR MUNICIPAL . . . ADMN. AND URBAN DEVELOPMENT AND MR. .. T.S.VENKATARAMANA < Gist : > Head Note : ? CITATIONS : 1. 2002(3) Alt 536 (D.B.) 2. AIR 1955 SC 549 3. 200(7) SCC 425 4. AIR 1997 SUPREME COURT 128 5. AIR 1998 SUPREME COURT 1703 6. (2000) 7 Supreme Court Cases 425 7. SCC 2004 (6) 588 8. AIR 1956 SC 110 9. AIR 1993 ANDHRA PRADESH 20 10. 1997 (2) ALD 115 11. 1972 (2) APLJ (Short notes) 54 12. 2000 (4) ALD 625 13. AIR 2005 SC 1 14. AIR 2001 SC 1409 15. 1981 (1) ALT 46 16. AIR 1952 SC 16 17. 1994 (3) ALT 73 (F.B.) 18. 2005(2) ALD 10 (SC) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY THIS THE THIRTEENTH DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HONOURABLER SRI JUSTICE G.BIKSHAPATHY AND THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 15716 of 2004 AND WRIT PETITION No. 22354 OF 2004 WRIT PETITION NO : 15716 of 2004 Between: Atluri Purushotham, S/o Sri Veeraraghavaiah R/o Gunadala Centre, Vijayawada-4 ..... PETITIONER AND 1 Vijayawada-Guntur-Tenali-Mangaligiri Urban Development Authority, rep by its Vice-Chairman,Lenin Centre, Eluru Road, Vijayawada 2 Vijayawada Municipal Corporation, rep by its Commissioner, Vijayawada-1 3 P.G.K. Murthy S/o Sri P.S. R. Rao Chief Promoter/Builder of Homewell Constructions, 45-1-3/2, Gundadala, Vijayawada-4 4 Uday Shanker, S/o Sri V. Nageswar C/o P.G. K. Murthy 45-1-3/2, Gunadala, Vijayawada-4 5 Harichandana W/o Sri A. Madhusudhana Rao C/o P.G. K. Murthy 45-1-3/2, . Gunadala, Vijayawada-4 3 to 5 are R/o H. No. 45-1-3/2, Gunadala Centre, Vijayawada- 6 The Government of Andhra Pradesh, rep by its Secretary, Municipal . .. . . . . . Administration, Secretariat Building, Secretariat, Hyderabad 7 The Director, Fire Services, A.P. Hyderabad .....RESPONDENTS 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 Mandmaus, declaring the G.O.Ms. No. 33 MA, Municipal Administration and Urban Development (M2) Department, dated 03-02-2001 as illegal and contrary to the Provisions of the A.P. Urban Areas (Development) Act, 1975 and the Hyderabad Municipal Corporation Act, 1955, A.P. Fire Services Act, 1999 and A.P. Apartments Act, 1987 and the rules made there under and further declare that the plan sanctioned by the first Respondent vide file No. Rc C2/906/04 and permit bearing B.P. No. 121/4/VJA, dated 29-07-2004 as illegal and further direct the respondents not to make or allow to make as the case may be any constructions in the premises bearing No. 45-1-3/2, Gunadala, Vijayawada, without maintaining the minimum set backs of four meters around the proposed building of the respondents 3 to 5 herein, and obtaining NOC from the seventh Respondent Counsel for the Petitioner:MR.M.V.DURGA PRASAD Counsel for the Respondent No.1: MR.P.M.GOPALA RAO, S.C.FOR URBAN DEVELOPMENT AUTH. Counsel for the Respondent No.2: Mr. T.S.VENKATARAMANA, S.C. FOR V.M.C. Counsel for the Respondents NO. 3 to 5: MR. B.V.SUBBAIAH Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. WRIT PETITION NO : 22354 of 2004 Between: 1 P.G.K. Murthy, S/o. Sri P.S.R.Rao, Builder of Homewell Constructions H.No. 45-1-3/2, Gunadala, Vijayawada - 4. 2 Uday Shankar, S/o. Sri V. Nageswar, H.No. 45-1-3/2, Gunadala, Vijayawada - 4. 3 Harichandana, W/o. Sri A. Madhusudhana Rao, H.No. 45-1-3/2, Gunadala, Vijayawada - 4. ..... PETITIONERS AND 1 The Vijayawada-Guntur-Tenali - Mangalagiri, Urban Development . . Authority, Rep by its Vice-Chairman, Line Center, Eluru Road, Vijayawada. 2 The Vijayawada Municipal Corporation, Rep by its Commissioner, Vijayawada-1. .....RESPONDENTS 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 action of the respondents in issuing proceedings No. R.C. C2-906/2004, dt. 23-9-2004, through which the writ petitioners buidling permission was cancelled, as violative of G.O.Ms.NO. 423 MA dt. 31--07-1998 and also violative of G.O.Ms.NO. 33 MA dt. 3-02-2002, and also violative of G.O.Ms.NO. 484 MA dt. 1- 11-2002, and also violative of principals of Natural Justice and also violative of Article 14, 19 and 21 of the constitution of India, and to pass such other order Counsel for the Petitioner:MR.B.V.SUBBAIAH Counsel FOR THE respondent No.1: MR. P.M. GOPALA RAO. Counsel for the Respondent No.2 .: MR.T.S.VENKATARAMANA S.C. for V.M.C. The Court made the following : COMMON ORDER: (Per the Hon’ble Sri Justice P.S.Narayana) 1. One Sri Atluri Purushotham, the Writ Petitioner in W.P.No. 15716 of 2004 had set the law into motion by questioning G.O.Ms. 33 M.A., Municipal Administration and Urban Development (M2) Department, dated 3-2-2001 and also sanction plan issued by Respondent No.1. The 1st respondent is Vijayawada-Guntur-Tenali- Mangalagiri Urban Development Authority, and the 2nd respondent is Vijayawada Municipal Corporation. Respondents No. 3 to 5 are the parties who obtained the sanctioned plan. Respondent No.6 is Government of Andhra Pradesh, represented by Secretary Municipal Administration. 2 . The writ petitioner had prayed for a relief of Writ of Mandamus declaring the G.O.Ms.No.33 MA, Municipal Administration and Urban Development (M2) Department, dated 3-2-2001, as illegal and contrary to the provisions of the A.P. Urban Areas (Development) Act, 1975 and the Hyderabad Municipal Corporation Act, 1955, A.P. Fire Services Act, 1999 and A.P. Apartments Act, 1987 and the rules made there under and further declare that the plan sanctioned by the 1st Respondent Vide File NO. RC C2/906/04 and permit bearing B.P.No.121/4/VJA, dated 29-7-2004 as illegal and further direct the Respondents not to make or allow to make as the case may be any constructions in the premises bearing No. 45-1-3/2, Gunadala, Vijayawada, without maintaining the minimum set backs of four metres around the proposed building of the Respondents 3 to 5 herein and obtaining NOC from the 7th respondent and to pass such other orders in the circumstances of the case. 3. Respondents 3 to 5 herein filed Writ Petition No. 22354 of 2004 praying for issuance of writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents in issuing proceedings No.R.C.C2-906, dated 23-9-2004, through which the writ petitioners’ building permission was cancelled, as violative of G.O.Ms.No.423 MA dated 31-7-1998 and also violative of G.O.Ms. No.33 MA dated 3-2-2002, and also violative of G.O.Ms.No.484 MA dated 1-11-2002, and also violative of Principles of Natural Justice and also violative of Articles 14,19 and 21 of the Constitution of India and to pass such other order in the circumstances of the case. 4. The writ petitioner in W.P.No.15716 of 2004 was impleaded as Respondent NO.3 in Writ Petitioner No. 22354 of 2004 and this writ petition is filed as against Respondent No.1 and 2, Vijayawada-Guntur-Tenali-Mangalagiri Urban Development Authority, and Vijayawada Municipal Corporation. (for the purpose of convenience, the parties would be referred to as arrayed in writ petition NO. 15716 of 2004) Since, the parties are virtually the same and the questions involved also being common, both the writ petitions are being disposed of by this common order. 5. It may be relevant to note that initially writ petition No. 15716 of 2004 was disposed of on 23-9-2004. But, however, the same was recalled on 3-12-2004 in Rev.WPMP No.28402 of 2004 and reliance is placed on the judgment just to show the stand taken by the Vijayawada Municipal Corporation at the first instance. It is pertinent to note that the Vijayawada Municipal Corporation had not filed any separate counter affidavit in the present litigation. 6. SUBMISSIONS OF MR. M.V.DURGA PRASAD Mr. M.V.Durga Prasad learned counsel representing the writ petitioner in W.P.No. 15716 of 2004 and Respondent No.3 in Writ Petitioner No. 22354 of 2004 made the following submissions. 7. The learned counsel would maintain that though Public Interest is involved, this is a matter where writ petitioner, as neighbour, had questioned the action of the respondents and the neighbour has locus standi to question the same when the authorities are not acting in accordance with law or there is violation and contravention of the Rules and Regulations relating thereto and the statutory provisions. The learned counsel also would submit that the concerned competent authorities are expected to adhere to law and enforce the law, especially in view of the public interest involved. The learned counsel would also submit that Government has no power to issue G.O.Ms.No.33 MA, Municipal Administration and Urban Development (M2) Department, dated 3-2-2001. The learned counsel had drawn attention of this Court to different provisions of A.P. Urban Areas Development Act, the Rules and Regulations inclusive of the Zoning Regulations, the Provisions of A.P. Apartments (Promotion of Construction and Ownership) Act and certain Rules in relation thereto and also the provisions of A.P. Fire Services Act, 1999. The counsel also made elaborate submissions relating to the strict liability as in Reylands V. Fleeter and would submit that since the sanctioned plan had been initially granted by the Urban Development Authority in contravention of the provisions referred to supra, the cancellation is in accordance with law. Even otherwise, G.O.Ms.No.33 MA, Municipal Administration and Urban Development (M2) Department dated 3-2-2001 does not disclose the source of power, and the question of delegation would come into play when the Government is having the power. The learned counsel also made submissions relating to the prior approval which is essentially required both under A.P. Apartments Act and A.P. Fire Services Act. The learned counsel had further drawn the attention of this Court to the respective pleadings of the parties and would attack the G.O. aforesaid as arbitrary and unconstitutional. The learned counsel places reliance on several decisions while making elaborate submissions in this regard. The counsel also pointed out the set backs and the contraventions in relation thereto. 8. SUBMISSIONS OF MR.B.V.SUBBAIAH Sri B.V.Subbaiah representing respondents No. 3 to 5 in W.P.No. 15716 of 2004 had taken this Court through the order of cancellation and would submit that this was made without notice and without observing the principles of natural justice. The counsel also would submit that none of the contraventions, which are being ventilated by the present writ petitioner, had been made the grounds in the impugned order of cancellation, which is questioned in Writ Petition No. 22354 of 2004. The learned counsel also submits that the matter in fact came before the First Court on the ground that this is a Public Interest Litigation and in fact no public interest is involved. The learned counsel also would submit that the rights of the neighbours would be limited rights and G.O.Ms. No.33 MA, Municipal Administration and Urban Development (M2) Department, dated 3-2-2001 is based on the policy decision of the Government and it is neither irrational nor against any statutory or constitutional provisions. The learned counsel also would maintain that if any contraventions are made in carrying out the building activity, the competent authorities definitely are at liberty to set right the things by rectifying the same by ordering the removal thereof. The learned counsel also made elaborate submissions relating to the different provisions of the Statues and regulations which already had been referred to supra and also drawn the attention of this Court to certain provisions of the Hyderabad Municipal Corporation Act and ultimately would contend that the Urban Development Authority acted in an arbitrary manner without any reason to cancel the sanction, that too without notice. The mere fact that the first Court recorded stand of the Corporation in the judgment in W.P.No.15716 of 2004 dated 23-9-2004. This would not alter the situation in any way, since the said order was recalled. The learned counsel ultimately would submit that this is just a mala fide action initiated by a neighbour owing to private grievance and hence in view of the private dispute between the parties and in the peculiar facts and circumstances, the cancellation cannot be sustained. Learned counsel also placed reliance on certain decisions to substantiate his contentions. 9 . SUBMISSIONS MADE BY Mr.P.SRINIVAS, COUNSEL FOR RESPONDENT No.1. Learned Standing Counsel appearing for Urban Development Authority had pointed out that in the light of the contentions, inasmuch as power to cancel is there, the power had been exercised in a proper manner. The counsel would also maintain that G.O.Ms. No.33 MA, Municipal Administration and Urban Development (M2) Department dated 3-2-2001 has been issued as a policy decision and the source of power can be traced to Section 59 of Andhra Pradesh Urban Areas Development Act. The learned counsel also would contend that larger public interest should be taken into consideration and it must yield to smaller public interest. The interest of the neighbour is the smaller public interest whereas the policy adopted in G.O.Ms. No.33 is in larger interest. 10. SUBMISSIONS MADE BY G.P. FOR MUNICIPAL ADMINISTRATION: The learned Government Pleader for Municipal Administration had drawn the attention of this Court to the stand taken by the Government and would submit that this is a policy decision and the counsel also had drawn the attention of this Court to the relevant portion of the counter affidavit filed in this regard and would submit that this being a policy decision, the Court should be very slow in interfering with such matters. 11. Heard the counsel on record. 12. The relief prayed for in respect of the writ petition filed by Respondent Nos. 3 to 5 already had been referred to supra. The writ petition No.15716 of 2004 is filed by a neighbour complaining certain contraventions or violations. Aggrieved by the cancellation of the sanctioned plan, respondent Nos. 3 to 5 filed Writ Petition No.22354 of 2004. The respective stands taken by the authorities in both the writ petitions are virtually the same. It is stated that the writ petitioner in W.P.No.15716 of 2004 is a retired Principal having served as a lecturer in English in several reputed educational institutions including Andhra Layola College, Vijayawada and as a Shakespeare Scholar he translated the complete works of Shakespeare and thus dedicated his retired life to literal activity. It is stated that the writ petitioner purchased land to an extent of 23 ¼ cent equivalent to about 1100 square yards at Gunadala village in the year 1960 and constructed two sheds on the North-Western side of the said land leaving 1 ½ feet area on the North side of the said wall for the purpose of having a bund to support the said wall. Later, the petitioner also constructed a house thereon and has been residing therein. The said area is earmarked for residential purpose in the master plan and no multi-storied buildings are permitted in that area as per the Master Plan and Zonal Development Plan. Further a specific stand is taken by the writ petitioner that respondents Nos.3 to 5 are claiming to be the G.P. Holders in respect of the property abutting the petitioner’s premises on its north west side. It was further stated that the respondents Nos. 3 to 5 started construction work. They dug anger holes and pits for the purpose of footings to raise columns just at the distance of one and a half feet from the petitioner’s premises, practically leaving nothing as set back. Immediately, the petitioner made representations to the Respondent Nos.1 and 2 personally and as well as in writing. The 2nd respondent gave the petitioner an endorsement Memo stating that the 1st respondent had granted exemption to the Respondents Nos.3 to 5 under G.O.Ms. No.33, dated 3-2- 2001 and G.O.Ms.No.484 dated1-11-2002 in respect of set backs and coverage. The petitioner therefore made representations on 3-7-2004, 12-7-2004 and 28-7-2004 clearly stating that even the alleged G.Os did not permit the exemption from maintaining the set backs, till the minimum permissible F.A.R. is achieved, without requirement for any relaxation as per Clause (4) (b) (i) of the said G.O. It also turned out that the endorsement given to the Petitioner dated 1-7-2004 is not true, as alleged in the endorsement, as such permission was in fact given to the Respondents 3 to 5 much later now. Therefore, the 2nd respondent removed all the illegal structures made by the Respondents NO. 3 to 5 in the forenoon of 29-7-2004. However, to the shock and surprise of the petitioner, the 1st respondent released a plan thereafter with the date of 29-7-2004 sanctioning the plan without any set backs towards the Petitioner’s premises. It is further averred that contrary to the usual practices and functioning of the 1st respondent, all the notings on the sanctioned plan from top to bottom bear the same dated i.e. 29-7-2004, which speaks volumes about the manipulations on the part of the Respondents. It is further stated that though the petitioner has been complaining fro the beginning about the absence of set backs, Respondents 1 and 2 have not chosen to give any kind of opportunity of hearing to the petitioner nor they have considered the objections pointed out by the petitioner in his representations, while granting the sanction, particularly about the set backs. Hence, the impugned proceedings are vitiated by violation of principles of natural justice. It is stated that the 1st respondent sanctioned the plan for stilt and five upper floors with thirty three residential apartments in all, illegally. It is further averred that as per the G.O..Ms.No.423 MA and UD (MI) Department dated 31-7- 1998 governing the floor area ratio and other standards of building requirements in all the Municipal corporations in the State, the minimum set backs to be left around the building are four meters for any building from 11 to 18 meters of height i.e. stilts plus five floors in a building in a plot up to 1000 square meters. The plot of the Respondents 3 to 5 herein is less than 1000 square meters and the proposed building as per the sanctioned plan is stilt plus five upper floors. Those set backs around the building as required under law, are also necessary for the purpose of safeguarding the easementary rights as to light and air of the neighbours and also for the purpose of crisis management in case of fire accident,. These building rules are made in the public interest which created a vested right in the neighbouring house owners. Further, even the Municipal Corporation Building Bye-laws under G.O.Ms.No.905 dated 7-8-1981 are extended to all the Municipal corporations which are framed in exercise of the statutory power under the Hyderabad Municipal Corporation Act. The A.P. Apartments Act, 1987 and the Rules made there under also provide for the elaborate fire protection requirements. Part IV to X of National Building Code of India are expressly made applicable to all buildings by the Municipal Corporation Building Bye-Laws Act, 1981. Further, the clearance from Director fire services is mandatory by virtue of provision of A.P. Apartments Act, 1987 and also the A.P. Fire Service Act,1999. The Section 13(3) of the A.P. Fire Services Act, 1999 prohibits any authority or officer competent to approve building plans before constructions under the relevant law for the time being from according approval except on production of a no objection certificate under sub-section (2) thereof and any violation thereto is an offence under sub-section (4) read with section 26, thereof. The proposed building sanctioned by the respondents is of more than 15 meters and hence down by the relevant laws including multistoried Building Regulations and A.P. Fire Services Protection Act, 1999. But no such NOC required under section 13 of A.P. Fire Services Act, 1999 is obtained by the respondents 2 to 5 herein. These Acts and Laws including Zoning Regulations and the National Building Code are made in public interest and create a right in favour of neighbouring owners and cast a statutory public duty on the respondent authorities. No exemption can be granted by any authority in respect of these building laws. In fact, Clause (15) of the said G.O.Ms.No.423 clearly declares that “the Government or any other authority shall have no powers hereafter to relaxations any site from the provisions of the Building stipulations either in part or in total”. Therefore, the alleged exemption under G.O.Ms.Nos. 33 and 483 and approval of plan under the impugned proceedings by the sixth respondent is illegal and without any jurisdiction. 13. It is further averred that G.O.Ms.No.483 is issued only for the purpose of specified roads in the area of Hyderabad Municipal Corporation. Hence, it has no application as such to the Municipal Corporation of Vijayawada at all. Even the G.O.Ms. No.33 dated 3-2-2001 says, if the permissible F.A.R. can be achieved with the stipulated set backs/coverage in such cases, the set backs and coverage shall be insisted as per the rules, it is was brought to the notice of the Respondents 1 and 2 by the Petitioner. And, G.O.Ms.No.33 clearly declares that under no circumstances, the relaxation should be granted for the purpose of enhancing the F.A.R. The permissible F.A.R.is specified in the G.O.Ms. No.423. The second respondent Municipal Corporation falls in category B in the table annexed to the said G.O. If the building is in below 1000 square meters area, the permissible F.A.R. up to the height of 18 meters is 1.40 only. However, the sanctioned plan clearly shows that the F.A.R. is 1.67 and the gross F.A.R. is 2.18. Significantly, when the actual extent is only about 950 square meters, the sanctioned plan shows as if it is in an extent of 1011.75 square meters. If the actual extent is taken into consideration, the F.A.R. is more. But, even otherwise, in view of the fact that the F.A.R. at the rate of 1.40 under G.O.Ms. No.423 can be achieved, there is absolutely no need for any amount of relaxation under G.O.Ms.No.33. Thus, the action of the first respondent is contrary to even G.O.Ms. No.33. 14. It is further stated that the G.O.Ms.No.33 is incompetent and without jurisdiction. It is submitted that the Building Bye-Laws are framed under the Municipal Corporation Act and Urban Areas Development Act. There is no provision for relaxation in the Hyderabad Municipal Corporation Act, 1955 or A.P. Urban Areas (Development) Act, 1975 or in the Vijayawada Municipal Corporation Act, 1981 or A.P. Fire Services Act, 1999 and therefore, the provisions, regulations and the rules made there under cannot be relaxed at all. At any rate the power to grant exemption under the G.Os and Rules is exclusively vested in the Government. This power of relaxation was relinquished as a matter of Policy by the Government itself. And, the Government being a delegatee under the Rules cannot further sub-delegate the power as such action is ultra vires the Statute and hence, the G.O.Ms.No.33 is liable to be declared as illegal. Further, the G.O.Ms.No.33 gives arbitrary power to the supporting officers and suffers from the vice of excess delegation. At any rate, the mandatory provisions of the Building Laws made in Public Interest can not be relaxed by any authority. 15. It is also stated that with the active support of the 2nd respondent, the Respondents 3 to 5 again started making illegal constructions without maintaining any set backs whatsoever, much less as required under aforesaid laws. Though an illusory set back of one and a half feet is shown in the sanctioned plan, the Respondents 3 to 5 are practically covering the entire land without keeping any set backs on account of the F.A.R. illegally permitted. The construction proposed by the Respondents 3 to 5 is possible only by covering the entire existing land. 16. 1st respondent