WP/8619/2001 of Smt. M.V.Lakshmi Vs The Commissioner on 29 December 2004

ORDER:

Heard the learned counsel for the petitioner and the learned counsel appearing forthe respondent-Corporation.

The petitioner claims to be the owner of the premises bearing door No.44-23-19,situated at Dondaparthi, Railway New Colony, Visakhapatnam, having purchasedthe same under registered sale deed dated 10-12-1996. It is stated that she wantedto construct first floor on the existing building and therefore, submitted a buildingplan on 01-01-1997 requesting for approval of the first respondent. It appears thatthe said building plan was returned vide endorsement dated 21-1-1997 raisingcertain objections. The petitioner resubmitted the plan complying with the objectionsraised by the first respondent. However, the same was kept pending for a long timeand in pursuance of several representations made by the petitioner, ultimately therespondent passed an order dated 09-02-2001 informing the petitioner that thepermission for construction of the first floor shall be considered as per the BuildingApproval Rules subject to furnishing an undertaking to the effect that she shouldleave the site covered by drain free of cost. Aggrieved by the said action of therespondent in demanding to part with the land of the petitioner free of cost, this writpetition is filed.

On behalf of the respondent-Corporation, a counter-affidavit has been filed statingthat on inspection of the premises where the house of the petitioner is situated, itwas found that there is a drain, which on the northern side of her house and thepetitioner constructed a wall across the natural drain, due to which, the drain waterentered into the neighboring premises and the people of the locality made acomplaint to the respondent-Corporation and requested to take immediate action. In the circumstances, the compound wall constructed across the natural drain wasremoved departmentally on 11-08-2000. It is also stated that though there is vacantsite on the rear side to raise the wall, the petitioner with a malafide intention toencroach upon the natural drain sought permission, which cannot be permitted sinceit is very old natural drain.

On the basis of the said counter-affidavit, the learned counsel appearing for therespondent submits that the impugned order has been rightly passed by therespondent-Corporation and the same does not warrant any interference.

However, the learned counsel for the petitioner while producing the buildingpermission granted by the Corporation on 01-05-2004 in favour of some of theneighbours, who are similarly situated, states that the version of Corporation asstated in the counter-affidavit is not correct.

Conclusion

On a perusal of the permission grated on 01-05-2004 it appears that the Corporationhas not insisted on leaving the site covered by the open drain free of cost. Thelearned counsel for the petitioner states that the petitioner is also similarly situated.In the circumstances, without expressing any opinion as to the rival claims made bythe parties, I deem it appropriate to dispose of writ petition with a direction to therespondent to reconsider the request of the petitioner for approval of the buildingplan keeping in view the permission already granted to some of the neighbours, ifthey are similarly situated, and to pass appropriate orders in accordance with law asexpeditiously as possible, preferably within a period of four weeks from the date ofreceipt of a copy of this order.

Accordingly, the Writ Petition is disposed of. No costs.

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29-12-2004

sj

1. The Commissioner, Municipal Corporation, Visakhapatnam.

2. Two C.D. copies.