WP/16016/2008 of Yalamanchili Narayana Rao Vs Vijayawada Municipal Corporation, Vijayawada rep. by on 29 December 2009

Conclusion

ORDER:

With the consent of the learned counsel for the petitioner aswell as the learned counsel for the respondents, the writ petition isdisposed of at the admission stage.

In this writ petition, the petitioner seeks directions against the1[st] respondent – Municipal Corporation to take action againstrespondent Nos.2 to 4 for removal of constructions which are madeby them contrary to the sanctioned plan in the premises bearingNo.40-25-35, situated at Masjid Street, Patamata Lanka, Vijayawada.

The 2[nd] respondent is the owner of the premises in question. The petitioner herein also claims one-sixth share in the property. Hefiled a suit for partition and separate possession of one-sixth shareand obtained orders of status quo. But in the meantime, the 2[nd]respondent has entered into a development agreement withrespondent Nos.3 and 4 to develop the property in question. Byobtaining due sanction and approval for construction, respondentNos.3 and 4 have constructed the building. In this writ petition, it isthe grievance of the petitioner that though constructions are made indeviation to the sanctioned plan, no steps are being taken byrespondent No.1.

In the counter affidavit filed by the 1[st] respondent – Corporationwhile giving the particulars of deviations made by respondent Nos.2to 4 in a tabular form, it is stated that they have already taken steps forremoval of the deviated portions. It is further stated that the 2[nd]respondent has also submitted an application for regularisation ofdeviations under Building Penalisation Scheme notified vide BPSNo.13444/08. It is also stated that in view of issuance of notice underSection 452 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’), it cannot be said that the respondent – Corporationhas not taken any action.

Separate counter affidavit is also filed on behalf of respondentNos.3 and 4. While generally denying various allegations made bythe petitioner, it is stated that they have made construction in view ofthe permission granted by the 1[st] respondent – Corporation forconstruction of apartment building consisting of stilt for parking,ground + 4 upper floors. It is further stated that the deviations allegedby the petitioner are very minor and as such, no steps have beentaken for demolition of the premises.

In view of the averments made by the respondents in thecounter affidavits, it is clear that the application filed by the 2[nd]respondent for regularisation of the structures which are in deviationof the sanctioned plan is pending consideration. The BuildingPenalisation Scheme is notified in view of the provisions underSection 455 AA of the Act, by way of amendment to the said statute. The validity of the said provision and the scheme came to beconsidered by a Division Bench of this Court in K.H.V Prasad v.

Government of Andhra Pradesh[[1]]and this Court upheld the same. In view of the judgment of this Court referred to above and alsotaking into account the application filed by the 2[nd] respondent forregularisation of the structures which are in deviation of thesanctioned plan, no directions can be granted for demolition of thestructures. It is also evident from the counter affidavit filed by the 1[st]respondent – Corporation that the Corporation has already takensteps by issuing notice under Section 452 of the Act. Therefore, itcannot be said that the Corporation has not taken any steps.

In the circumstances, I deem it appropriate to dispose of the writpetition permitting the petitioner to put forth his objections, if any, forthe proposed regularisation on the application submitted by the 2[nd]

respondent. Subject to the outcome of the said application, thepetitioner is also given liberty to move the appropriate authority afterfinal orders are passed.

Subject to the above direction, the writ petition is disposed of.

No order as to costs.

29-12-2009ks

R. SUBHASH REDDY, J

[1]2009 (4) ALD 803 (DB)