WP/25141/2008 of S.V.S. Narasimham, Vs Nellore Municipal Corporation, on 31 December 2009

Order:

Writ Petition No.25141 of_2008

In this Writ Petition, the petitioner seeks declaration,by way of Mandamus, that the action of the first respondentin not taking steps for demolition of the structuresconstructed by the second respondent in deviation to thesanctioned plan, in house bearing No.4-1-956,Usmansaheb Pet, Nellore, Sri Potti Sriramulu NelloreDistrict, in spite of his representations, dated 24-12-2007,12-03-2008 and 02-04-2008, is illegal and arbitrary.

It is the case of the petitioner that the secondrespondent, who is his neighbour, has taken permissiononly for construction of ground floor, but constructed thefirst floor also without leaving any set backs and contrary tothe approved plan. It is his grievance that though he maderepresentations on 24-12-2007, 12-03-2008 and 02-04-2008 to the first respondent, no steps have yet been takenthereon.

Separate counter affidavits were filed by the first andthe second respondents.

In the counter-affidavit filed by the first respondent,while denying various allegations made by the petitioner, it is stated that on submission of an application by thesecond respondent, the first respondent-Corporation hasapproved the plan in favour of the second respondent forconstruction of ground floor residential building videB.A.No.94/97-G1, dated 12-06-1997, and for constructionof the first floor over the existing ground floor videB.A.No.420/07-G2, dated 27[th] January, 2007. It is furtherstated that the second respondent has constructed the firstand the second floor of the building in deviation to thesanctioned plan, but he has submitted an application underBuilding Penalization Scheme (for short ‘BPS’) videB.P.S.No.677/08 by paying an amount of Rs.10,000/-towards penal amount and the same is pendingconsideration. Ultimately, it is stated that further stepsthereon will be taken in accordance with the rules, afterreceipt of final orders from the Government in the BPS.

Respondent No.2 also filed counter-affidavit in similarlines. In the said counter-affidavit, while denying variousallegations made by the petitioner, it is stated that thepetitioner also has made unauthorized constructions andsubmitted an application for regularization of the saiddeviations under BPS. It is further stated that in view of theminor deviations to the constructions undertaken by him,he has already submitted an application under BPS andthe same is pending consideration.

Perused the entire material available on record.

In view of the amendments made to the MunicipalCorporation Act, by inserting provisions under Sections 455(A) and 455 (AA) thereof, the Municipal Corporation hasnotified BPS under G.O.Ms.No.901, MA, dated 31-12-2007,and validity of the said Scheme came to be questionedbefore this Court and a Division Bench of this Court hasupheld the Scheme.

Though it is the case of the petitioner that theconstructions made by the second respondent in deviationto the sanctioned plan cannot be regularized, in view ofpendency of the application of the second respondentunder BPS before the first respondent-Corporation, nodirections for demolition of the same can be granted at thisstage. However, it is for the first respondent-Corporation toconsider the same before passing orders on the applicationfiled by the second respondent under BPS.

Therefore, I deem it appropriate to dispose of the WritPetition permitting the petitioner to make a freshrepresentation, if he has any objection for the proposedregularization of unauthorized structures raised by thesecond respondent, within a period of six weeks fromtoday. On such representation being filed, the first respondent shall consider the same before passing orderson the application submitted by the second respondentunder BPS. However, it is left open to the first respondent-Municipal Corporation to take further steps in the mattersubject to final orders to be passed on the said applicationfiled by the second respondent.

Conclusion

Subject to the above directions, the Writ Petition isdisposed of. There shall be no order as to costs.

Date: 31[st] December, 2009lur

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R.Subhash Reddy, J