WP/1702/2010 of Vibhav Enclave Apartments Owners, Vs The Nellore Municipal Corporation, on 29 December 2011

O R D E R:

This writ petition is filed seeking to issue writ of Mandamusdeclaring the action of respondent No.1 in not taking action on therepresentations submitted by the petitioners for not removing the illegalconstruction made by respondent No.2 in part of Plot No.884 inS.No.618/2 of Bit-I Nellore Municipal Corporation as illegal andarbitrary and consequently direct respondent No.1 to consider therepresentations of the petitioners and remove the illegal constructionmade by respondent No.2 in the said premises.

2. The brief facts, stated in the affidavit filed in support of the writpetition, are that one Sri M.Nagesh Reddy purchased house PlotNos.869, 870, 871, 884 and 885 in the aforementioned premises to anextent of 266.22 ankanams. The said Nagesh Reddy applied forconstruction of apartment in the above said house plots. The buildingplan was approved by respondent No.1 for the total site area of 266.22ankanams vide proceedings, dated 14.05.1997, under Building PlanNo.29/97. On the eastern side of the apartment, there is 60 feet roadnamely Kondayapalem Donka Road. For ingress and egress into theapartment, six gates were open towards 60 feet road. At the time ofconstruction of apartment, an extent of 19.80 Ankanams were set apartas front open space for the purpose of parking and vastu and the saidopen space is part and parcel of building plan No.29/97. The builderfraudulently sold the said front open space to his father-in-lawP.Radhakrishna Reddy on 14.11.1997, who in turn sold an extent of11.11 ankanams to Smt N.Sujana leaving the remaining 8.69ankanams. She sold the said site to respondent No.2 on 10.04.2002. After knowing these transactions, petitioners filed O.S.No.103 of 2009on the file of V Additional District Judge, Nellore against respondent No.2 and others to declare that the sale deeds executed in their favouras null and void, and the same is pending. Respondent No.2, withoutsubmitting the building plan, started construction of a building (G+3) inthe site admeasuring an extent of 74.31 sq.mts in the site, which wasset apart as front open space in the said building plan. The buildingunder construction has no approved plan and respondent No.2 claimthat no plan is required for site area upto 100 sq.mts as perG.O.Ms.No.423 M.A. & U.D., dated 31.07.1998. The exceptionsprovided under the said G.O. are only for individual residentialbuildings in the plot upto 100 sq.mts. Respondent No.2 purchased thesaid site even after issuance of the said G.O. The site in whichrespondent No.2 is constructing the building is part of Plot No.884 inSy.No.618/2 in the aforementioned premises. He has not obtainedany permission from the Director of Town Planning. Moreover,Vaibhav Apartment Plan was sanctioned for the entire extent of PlotNo.884 along with the other plots. Respondent No.2 madeconstruction of the building in total deviation of the Rules byencroaching into the land. Though the petitioners made severalrepresentations to respondent No.1, no action has been taken by himand hence, they filed the present writ petition.

3. Respondent No.1 filed counter-affidavit stating that respondentNo.2 submitted plans seeking permission for construction of a buildingconsisting of Ground Floor and First Floor in B.A.No.829/2009, but thesame was returned unapproved, as the proposals are in violation ofBuilding Rules. Respondent No.2 commenced construction andconstructed the building with RCC columns and a slab in an extentof 74.31 Sq.Mts in part of Plot No.884 in L.P.No.101/95without obtaining permission from the Corporation for which the TownPlanning staff of the Corporation stopped the construction work andissued a notice under Sections 461 and 452 of the HyderabadMunicipal Corporation Act, 1955 (for short, ‘the Act’). Action will be initiated for unauthorized constructions and deviations as per lawagainst respondent No.2 and prays to dismiss the writ petition.

4. Respondent No.2 filed counter-affidavit stating that he did notproceed with any construction after passing of the interim order, dated03.03.2010 by this Court and that the allegation of the petitioners thathis constructions are illegal are not true and hence, prays to dismissthe writ petition.

5. Learned counsel for the petitioners stated that respondent No.2made illegal constructions for which, several representations weremade by the petitioners to respondent No.1, but respondent No.1 hasnot taken any action and hence, prays to issue a direction torespondent No.1 to consider the representations of the petitioners.

6. On the other hand, learned Standing Counsel appearing forrespondent No.1 stated that the petitioners have taken permission forconstruction of the apartment to an extent of 1781.37 sq.mts.; butrespondent No.2 is making constructions illegally in an extent of 74.31sq.mts. without obtaining permission from the Corporation.

7. Learned counsel for respondent No.2 contended that as the areaof the plot in which the construction is being made is less than 100sq.mts., no permission from the Corporation is required and hence,prays to dismiss the writ petition.

8. It is not in dispute before this Court that respondent No.2constructed RCC columns for ground plus three floors and laid theRCC with stair case and brick work, but he stopped the constructionafter stay was granted by this Court. Respondent No.2 submitted theplans to respondent No.1, but they were returned for certainobjections. But without submitting the plans, respondent No.2 startedthe construction. Therefore, a notice under Sections 461 and 452 of the Act has been issued. Even though no permission is required forconstruction of the building in a site where the area is less than 100sq.mts., at the same time, the building must be constructed inaccordance with the building bye laws. Whether the building inquestion is being constructed by respondent No.2 in accordance withthe building bye laws or not has to be considered by respondent No.1. Therefore, respondent No.1 is directed to take appropriate decisionafter giving a reasonable opportunity to the petitioners as well asrespondent No.2 and pass necessary orders in accordance with law.

9. With the above direction, the Writ Petition is disposed of. Thereshall be no order as to costs.

29[th] December, 2011.AMD

_______________K.C.BHANU, J

THE HON'BLE SRI JUSTICE K.C.BHANU

AMD

WRIT PETITION NO.1702 OF 2010

Date:29.12.2011