Telangana High Court
WP/19938/2002 of M.D.Fazal, Vs The Commissioner Municipal Council, on 29 December 2009
COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINETH DAY OF DECEMBER, TWO THOUSAND NINE PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.19938 of 2002 Between: M.D. Fazal … Petitioner And The Commissioner,
IN THE HIGH COURT OF JUDICATURE,ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)
TUESDAY, THE TWENTY NINETH DAY OF DECEMBER,TWO THOUSAND NINE
PRESENT:
THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY
WRIT PETITION No.19938 of 2002
Between:
M.D. Fazal
… Petitioner
And
The Commissioner,Municipal Council, Tandur, Ranga Reddy District.
… Respondent
Counsel for the petitioner : Sri N. Vasudeva Reddy This Court made the following:
THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDYWRIT PETITION No.19938 of 2002
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-ORDER:
In this writ petition, the petitioner questioned proceedingsdated 19.09.2002 issued by the respondent, whereby he confirmedthe purported notice/provisional order dated 11.09.2000 issuedunder Section 228 (ii) of the Andhra Pradesh Municipalities Act,1956 (for short, “the Act”).
Heard Sri N. Vasudeva Reddy, learned counsel for thepetitioner. No one appeared for the respondent. I have perusedthe record.
The petitioner purchased a part of Plot No.5 admeasuring155.5 square yards in Sy.No.51 of Malreddypally, Tandur Town,Ranga Reddy District, forming part of layout No.132/90. Thepetitioner applied for building permission vide his application dated12.08.2002 by paying the requisite building permission fee anddevelopment charges totaling Rs.29,640/-. After waiting for therequired period, the petitioner started construction under thedeemed permission. By the impugned order, the respondentconfirmed the alleged notice dated 11.09.2000 and directed thepetitioner to dismantle the building on the ground that theconstruction was unauthorized. Challenging the said order, thepetitioner filed the present writ petition.
By order dated 09.10.2002, which was modified on 06.11.2002, this Court granted stay of further action.
At the hearing, learned counsel for the petitioner submittedthat in pursuance of the interim order, the petitioner completed theconstruction.
The main plea of the petitioner in this writ petition is that theimpugned order is not preceded by a provisional order, asenvisaged under Section 228 (ii) of the Act, though a reference tosuch an order was made in the impugned order. The further pleaof the petitioner is that the respondent has acted withdiscrimination by sanctioning the application for buildingpermission in favour of a person, who purchased a part of the saidplot No.5 while rejecting the petitioner’s application.
In the counter affidavit, the respondent stated that thepetitioner’s plot was not sub-divided and therefore his applicationwas rejected on 11.09.2002. It is further stated that the saidrejection order was served by way of affixture of notice on thebuilding site, as the petitioner failed to furnish the completeresidential address in his application.
At the hearing, learned counsel for the petitioner submittedthat the action of the respondent is wholly discriminatory,inasmuch as one Abdul Kareem, son of Shaik Ahmed, whopurchased the other half of Plot No.5, was granted buildingpermission by the respondent vide his proceedingsNo.C/664/2005, dated 14.10.2005 and that his house was also assessed to property tax from 2005-06. The learned counselplaced before this Court order dated 20.04.2009 in Writ PetitionNos.19970 and 23923 of 2002 filed by the said Abdul Kareem,wherein this Court recorded the said facts.
As regards the specific plea of the petitioner that provisionalorder dated 11.09.2000 has not been served on him, the stand ofthe respondent is rather vague and ambiguous. Though therespondent has maintained that rejection order dated 11.09.2002was served through affixture, there is no specific avermentregarding service of provisional order dated 11.09.2000. Exceptstating that the respondent issued notice dated 11.09.2000, thedetails of the method and manner of service of the saidnotice/provisional order have not been pleaded in the counteraffidavit. Under Section 228 (ii) of the Act, service of provisionalorder on the owner of the building is mandatory and it thereforenecessarily follows that the final order passed under Section 228(iii) will not be valid, if the provisional order is not served. In theabsence of proper plea regarding service of provisional order,leave alone showing proof of such service, the impugned ordercannot be sustained.
With regard to the prayer for a direction to the respondent togrant permission, while the respondent has maintained that withouta sub-division, the building permission cannot be granted, as notedabove, the learned counsel for the petitioner has specificallysubmitted that the respondent has granted building permission in favour of Abdul Kareem, who is similarly situated to the petitioner,as he purchased the other half of Plot No.5 and the saidpermission was granted without any sub-division. As grant ofbuilding permission in favour of Abdul Kareem was on 14.10.2005,which is a subsequent event, the respondent shall consider thisfact and re-examine the request of the petitioner for grant ofbuilding permission in the light of the said fact. If the said AbdulKareem was granted building permission without a sub-division,the respondent cannot deny the same benefit to the petitioner aswell, on the ground that the plot is not sub-divided.
The writ petition is accordingly disposed of in the following terms:
(i) The petitioner is permitted to re-submit the applicationfor building permission within a period of six weeks alongwith the relevant material including the permissionsgranted in favour of Abdul Kareem and other similarlysituated persons.for building permission within a period of six weeks alongwith the relevant material including the permissionsgranted in favour of Abdul Kareem and other similarlysituated persons.
(ii) The respondent shall consider the said application andtake an appropriate decision within a period of fourweeks thereafter, andtake an appropriate decision within a period of fourweeks thereafter, and
(iii) In the event of the respondent rejecting the applicationfor building permission, he shall not take any action fordemolition of the building, unless and until a freshprovisional order is served on the petitioner in terms ofSection 228 (ii) of the Act and a final order, afterconsidering the explanation, if any submitted by thefor building permission, he shall not take any action fordemolition of the building, unless and until a freshprovisional order is served on the petitioner in terms ofSection 228 (ii) of the Act and a final order, afterconsidering the explanation, if any submitted by the petitioner, is passed.
As a sequel to disposal of the writ petition,WPMP.No.25021 of 2002 filed by the petitioner for interim relief isdisposed of as infructuous.
Date: 29.12.2009ES
_____________________________
C.V. NAGARJUNA REDDY, J