Annam Satish Prabhakar v. Bapatla Municipality

This Writ Petition is filed seeking to declare the action of the respondent issuing the Confirmation Order Notice B.A.U.C. No.15/2011/T.P.B.O.II, dated 02.12.2011, for demolition of the alleged deviated structures in premises bearing D.No.8-2-6A, Survey No.453/5, Ward No.21, Bhimavaripalem, Bapatla Town, Guntur, pursuant to the Provisional Order Notice, dated 16.11.2011, without affording any opportunity to the petitioner for submitting explanation or personal hearing, as arbitrary and illegal and consequently to set aside the Notice, dated 02.12.2011.

In the affidavit filed in support of the Writ Petition, it is stated that the petitioner is the absolute owner and possessor of the house in question. The petitioner made an application to the respondent Corporation for grant of building permission. Thereafter, respondent granted permission with certain conditions. The petitioner made construction as per the approved plan without any deviations. While so, the respondent issued Provisional Order Notice, dated

16.11.2011 to the petitioner stating that he deviated the approved plan and constructed the building without leaving any set backs and to submit the explanation within seven days from the date of receipt of the Notice. The petitioner received the said Notice on 23.11.2011 and sent explanation on 28.11.2011. On 14.12.2011 the respondent officials came to the premises of the petitioner and took the measurements of the structures for demolition under the guise of alleged deviations. The petitioner filed W.P.No.33334 of 2011 questioning the Provisional Order Notice, dated 16.11.2001 issued by the respondent. In the mean time, the respondent Corporation issued impugned Confirmation Notice, dated 02.12.2001 stating that no explanation was given as against the Provisional Order Notice, dated

16.11.2011 and directed the petitioner to remove the deviations as mentioned in the Provisional Order Notice within a period of seven days, otherwise necessary action will be taken by initiating necessary proceedings. Hence, the Writ Petition.

The respondent-Municipality filed counter stating that the Writ Petition is not maintainable in view of bar contained under Order II Rule 2 of the Code of Civil Procedure, 1908. The Provisional Order Notice, dated 16.11.2011 was issued to the petitioner and it was served on the petitioner on 23.11.2011. The respondent-Municipality directed the petitioner to submit the explanation within seven days from the date of receipt of notice. Since the petitioner failed to submit any explanation pursuant to the Provisional Order Notice, Confirmation Notice, dated 02.12.2011 was issued to him. The said notice, dated

02.12.2011 was served on the petitioner on 05.12.2011. As per the postal endorsement, the petitioner sent explanation by registered post on 05.12.2011, after passing of Confirmation Notice, and the same was received by the respondent on 07.12.2011. As per the plan filed along with the Writ Petition, the petitioner was having permission for construction of stilt, ground and two floors. The petitioner constructed 3rd floor unauthorizedly without leaving any set backs as pointed out in the Provisional Order Notice.

Learned counsel for the petitioner contended that for the Provisional Order Notice, dated 16.11.2011, the petitioner has submitted the explanation on 28.11.2011; that the said explanation has not been considered by the respondent and issued Confirmation Notice, dated 02.12.2011 and hence, he prays to set aside the impugned notice.

On the other hand, learned Standing Counsel appearing for the respondent-Municipality contended that no explanation was received by the respondent on 28.11.2011, but the petitioner sent the explanation on 05.12.2011; and that in the meanwhile, the impugned Confirmation Notice, dated 02.12.2011 was issued and hence, that order needs no interference by this Court.

The allegation against the petitioner is that without obtaining any permission from the respondent-Municipality, he constructed certain floors in the building without leaving the set backs, which is contrary to the building by-laws. Therefore, the respondent-Municipality issued Provisional Order Notice on 16.11.2011 calling explanation of the petitioner within seven days from the date of receipt of the Notice, which was received by the petitioner on 23.11.2011. Admittedly, seven days time was expired by 30.11.2011. According to the learned counsel for the petitioner, the petitioner has submitted the explanation on 28.11.2011. According to the learned Standing Counsel for the respondent, the explanation of the petitioner was received after passing of the Confirmation Notice, dated 02.12.2011, which was received by the petitioner on 05.12.2011. Whether the petitioner has submitted the explanation within the time or after expiry of Provisional Order Notice, has to be considered by the respondent in accordance with law. If the petitioner made any violations, the respondent is at liberty to remove the unauthorized constructions, but, at the same time, the respondent is directed to consider the explanation given by the petitioner which was admittedly received by the Municipality on

07.12.2011. The respondent-Municipality is directed to pass necessary orders within a period of one week from the date of receipt of a copy of this order.