Writ Petition No. 30335 of 2010 · Andhra Pradesh High Court

Challenging the notice dated 16-11-2010 issued by the 2nd respondent, Commissioner, Kakinada Municipal Corporation, Kakinada, under Sections 452, 462 and 636 of the Hyderabad Municipal Corporation Act, 1955 (for brevity ‘the Act’), and the endorsement dated 23-11-2010 returning the petitioner’s application under Building Penalization Scheme BPS No.636/08/G2 unapproved, the present writ petition is filed.

Brief facts which are necessary for disposal of this writ petition are that the petitioner-institution is running a hospital under the name and style of ‘Appolo Hospitals’. It submitted an application for approval for construction of a building for the purpose of running hospital at Kakinada. The 2nd respondent approved the plan on 11-07-2002 and granted permission for construction of stilt+ground+four floors building under B.A.No.427/02/G2. Accordingly, the petitioner constructed a building with some modifications and deviations to suit its convenience by raising two more floors. Then, at the behest of third party, the respondents objected the same. However, the petitioner submitted an application for regularization of the unauthorized construction by paying Rs.10,000/- towards advance of penalization charges with all necessary d o cu me n ts. But respondent-Corporation without considering application of the petitioner issued impugned notice dated 16-11-2010 under Sections 452, 461 and 636 of the Act directing the petitioner to remove the unauthorized construction within 15 days. Hence, the writ petition.

Heard Sri V.L.N.G.K. Murthy, learned counsel for the petitioner, learned Government Pleader for Municipal Administration, appearing for R-1, Sri S.Nageswara Reddy, learned standing counsel for R-2 and R-3 and Sri K.Satyanarayana Murty, learned counsel for the R-4 and perused the record.

Learned counsel for the petitioner contended that the Fire Department has given permission to construct the metal staircase and accordingly, the metal staircase was constructed, and hence, he prays to issue direction to the respondent-Corporation, and hence even though permission was sought from the respondent-Corporation, it was rejected on the ground that it was not in the proper proforma and within three days, the petitioner would apply to the Municipal Corporation for permission to construct metal staircase. He also stated that the notice under Sections 452, 461 and 636 of Act, was issued, and that it can also be decided by the Corporation after taking decision on the application submitted by the petitioner under the Building Penalization Scheme (BPS).

On the other hand, learned standing counsel for the respondents 2 and 3 contended that there are violations in making the constructions as against the sanction plan and therefore, the Corporation issued impugned notice to remove the illegal structures and so, the impugned notice needs no interference, and hence, he prays to dismiss the writ petition.

It is not in dispute before this Court that the 3rd respondent- Corporation issued notice under Sections 461 and 636 of the Act because of certain deviations in construction made by the petitioner contrary to the sanction plan. It is also not in dispute that the petitioner already filed the application to regularize certain deviations under the Scheme which is pending before the respondents 2 and 3. Therefore, whether the application under the BPS comes within the parameters of Section 455-A of the Act or not has to be decided by the Corporation. Therefore, after taking appropriate decision on the application of the petitioner for regularization of certain deviations under the B.P.Scheme, the respondents 2 and 3 shall take appropriate action in removing the illegal structures.

With regard to laying of the metal staircase, admittedly, the petitioner has not applied for permission for construction of the metal staircase. After making construction in pursuance of the directions given by the Fire Service Department, the petitioner applied for the ratification of metal staircase, but it was rejected on the ground that it was not made in the proper proforma.

Therefore, the petitioner is directed to file a fresh application within a week from today in the requisite proforma and required fee for approval of the construction of the metal staircase and thereafter, the Corporation shall take appropriate decision on the application. The petitioner can use top two floors till a decision is taken by the Corporation under BPS. The entire exercise shall be completed by the Corporation within a period of eight weeks from the date of receipt of a copy of this order.