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M/s. Dhome Projects v/s State of Andhra Pradesh

    Writ Petition No. 8776 of 2021

    Decided On, 06 October 2021

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE D. RAMESH

    For the Petitioner: ----- For the Respondent: -----



Judgment Text

1. The Writ Petition is filed under Article 226 of the Constitution of India seeking to declare the orders in B.A.No.1167/0013/B/BHE/NER/2018 dated 15.4.2021 and the consequential orders dated 16.4.2021 and 17.4.2021 passed by the 2nd respondent is illegal, arbitrary and consequently set aside the same.

2. As per the averments in the affidavit, the petitioner claims to be the owner of 4119 sq.yards of land covered by survey No.31/1 of Nerellavalasa Village, Bheemunipatnam Mandal, Visakhapatnam under the registered sale deeds Doc. No.3378/2016 and 104/2017. The petitioner submits that earlier the land was in Nerellavalasa Gramapanchayat (under Visakhapatnam Urban Development Authority for short VUDA) and thereafter gram panchayat was merged into Greater Visakhapatnam Municipal Corporation in the year 2019. While the land was within the purview of the Gram Panchayat, the petitioner intends to develop the land, approached Andhra Pradesh Coastal Zone Management Authority, Vijayawada, as a part of land is falling under Coastal regularization Zone.

3. The Authority granted authorization to raise construction in the non-CRZ area which is to an extent of 2782 sq.yards. Later, the petitioner submitted an application to the Visakhapatnam Urban development Authority seeking building permission for construction of cellar +stilt +Ground+4 floors in an extent of 1778 sq.yards. The VUDA has accordingly granted permission vide building permit No. 1167/0013/B.BHE/NER/2018 dated 22.06.2018. They completed the residential complex strictly in accordance with approved plan and sold the flats to the purchasers under registered sale deeds.

4. While so, the town planning surveyor, Bheemili Zone, GVMC, issued a show cause notice dated 06.05.2020, under Sections 452(1) and 461(1) of the A.P Municipal Corporations Act, 1955 to the petitioner alleging that “while applying for building permission you have not submitted any sub-division details duly showing the proposed site u/r in the total extent of site” and also alleged that on external set-backs side (2) petitioner has left only 2.5 meters instead of 5 meters. The petitioner on the next day i.e. on 07.05.2020 submitted explanation to the said show cause notice denying the said averments of the show-cause notice.

5. On 13.12.2020, the Commissioner of Greater Visakhapatnam Municipal Corporation issued a show cause notice to the petitioner, under section 450 of the Greater Hyderabad Municipal Corporation Act, stating that the President of Bheemunipatnam Mutually Aided Cooperative building society Ltd (for short BMACBS Ltd) submitted a representation to the Commissioner for re-examination of plan alleging that the builder has left no approach road and shown BMACBS site as approach to the building and also stated that Town Surveyor in his remarks on ground verification an extent of Ac.0.015 cents approximately falls in kacha road i.e 118/p of Nerellavalasa (v) as owned by the BMACBS Ltd. and concluded by stating that the applicants Sri T.Ram Mohan and GPA Holder Smt T.Neelima represented by their Dhome Projects have obtained approval Vide B.A.No.1167/0013/B.BHE/NER/2018 dated 22.06.2018 by suppressing material facts by showing the approach road through BMACBS Ltd layout site and called them to show cause within 7 days from the date of receipt of the notice.

6. The Petitioner submitted explanation 19.12.2020 stating that there has been 30 feet road existing since beginning and all plots either side of this 30 feet road shows the said road as their boundary and that they have obtained permissions from VUDA, CRZ and Nidigattu Panchayat after detailed Survey of this area before building permission was approved and requested for re-survey of the land which is claimed to be part of this approach road. Re-survey was conducted by inspection of the site along with Deputy City Planner, Assistant City Planner, Town Planning Officer and the President and Secretary of BMACBS Ltd. and D-Homes project in charge on 08.04.2021 and submitted in the Re-survey report that “the Kacha road laid in Sy.No.31/1 and small extent covered in Sy.No.118/Part. As on ground verification an extent nearly Ac.0.015cents fell in kacha road i.e 118/p as owned by the BMACBS Ltd and also submitted that the Western side of the kacha road, there are some unapproved open plots and bounded with compound walls lies in Sy.No.31/1.

7. Later Commissioner of Greater Visakhapatnam Municipal Corporation revoked the permission on 15.04.2021 on the ground that Building permission obtained vide building permit No. 1167/0013/B.BHE/NER/2018 dated 22.06.2018 through online APDPMS by misrepresenting the facts. And also raised another contention that a representation was received from Sri Durga Venkata Prasad (4th Respondent), resident of Tagarapuvalasa that the first Addl. Junior civil judge, Bheeminipatnam vide O.S.No. 35 of 2006 has passed decree dated 05.03.2018 declaring that Smt. Rapeti Vasundhara W/o. Prabhakar Rao is the absolute owner of the schedule property and part of the subject site in Sy.No.31/1, Plot No. 9 to an extent of 267 Sq.yards has been purchased by Sri Durga Venkata Prasad from Smt. Rapeti Vasundhara W/o. Prabhakar Rao. Therefore held that the petitioner intentionally suppressed the above facts before competent Authorities and obtained Deemed permission and as failed to submit explanation u/s 450 of APMC Act, 1955 to the satisfaction of the undersigned the permission granted in building permit No.1167/0013/B.BHE/NER/2018 dated 22.06.2018 is here by cancelled and the construction made by the petitioner is treated as unauthorised and held that action will be initiated as per Act Provisions and Rules in force.

8. Commissioner of Greater Visakhapatnam Municipal Corporation Issued Notice u/s 461 of APMC Act, 1955, dt. 16.04.2021 and held that this notice is issued as the petitioner even after revoking the permission he has not taken any steps to remove the unauthorised construction and would take action in accordance with section 461-1A of APMC Act, 1955. Being aggrieved by the notice, the writ petition is filed.

9. Thereafter this court on 21.04.2021 held interim direction, that till the controversy is resolved, as it is prima facie found that the impugned order of cancelling the approved plan was issued on a different ground other than the grounds mentioned in the two show-cause notices and it is found that it is violative of natural justice and that as the construction is already completed it is liable to be protected from demolition, and directed respondents not to any steps pursuant to the impugned notices in this regard and not to demolish the apartment and also directed Petitioner not to make any further constructions or deliver possession of the building to the purchasers of the flats till the controversy is resolved in the final adjudication of Writ Petition.

10. The 2nd respondent filed counter in which it is submitted that pursuant to the building permission granted by the VMRDA (VUDA), the petitioner has proceeded with the construction. On outdoor inspection, the respondent Corporation had noticed that the petitioner firm has deviated the sanctioned plan in respect of the set backs and as such the respondent corporation had issued the notice under section 452 dated 06.5.2020 directing the petitioner to submit his explanation for violation of the set backs in respect of side-2 set back as the petitioner had left only 2.5 meters against 5 meters as per the approved plan while issuing the said notice the petitioner was also directed to stop the work. The petitioner has submitted his reply on 07.5.2020 stating that he has left 5 meters on the Southern side of the building with a small wall in between to separate the building and the kids tot lot area which cannot be construed as violation and also stated that they would explain the set backs at site.

11. Considering the explanation submitted by the petitioner and while taking final decision, the respondent Corporation has received a complaint from 3rd respondent i.e. Bheemunipatnam Mutually Aided Co-operative Building Society Limited on 13.11.2020 wherein the 3rd respondent has requested to take action against the petitioner as the petitioner has obtained building permission from VMRDA without having approach road to the building and requested to get examined the plan sanctioned to the petitioner and initiate action.

12. Pursuant to the receipt of the complaint by the 3rd respondent, the matter has been examined and the Town Surveyor of the respondent Corporation has submitted his remarks stating that as on ground verification an extent of 0.015cents fall in kacha road in Sy.No.118/P belonging to the 3rd respondent and as such the respondent corporation had issued a show cause notice on 13.12.2020 to the petitioner calling for explanation why the building permission shall not be cancelled. To the said notice, the petitioner has submitted its reply on 19.12.2020 stating that there is 30 feet road since beginning and they have obtained permission from VUDA and the building permission was granted after detailed survey. Subsequent to the reply submitted by the petitioner, the corporation has conducted survey in the presence of petitioner concerned and the president of 3rd respondent and in the resurvey it is found that the kacha road laid in Sy.No.31/1 and small extent covered in Sy.No.118/P as on ground verification an extent of 0.015cents fall in kacha road own by 3rd respondent which is allotted by the State Government and Sy.No.31/1 is a private land as per the revenue records.

13. That as per survey report and the documents submitted by the petitioner and the 3rd respondent it is found that the petitioner has obtained building permission from the VMRDA without having approach road by showing the kacha road as 30 feet road but on ground verification of the documents that the bit an extent of 0.015 cents belongs to 3rd respondent which is also evident from the FMB sketch of Nerallavalasa village. While so, the 4th respondent has also submitted a representation stating that the petitioner has constructed the building encroaching the plot no.9 which is adjacent to the proposed site.

14. It is evident from the survey report dated 08.4.2021 and the decree passed in O.S.No.35/2006 dated 05.3.2018 stating that the petitioner has obtained building permission from VMRDA (VUDA) without having approach road by encroaching plot no.9 which is part of schedule property in O.S.No.35/2006 and as such the respondent corporation has revoked the building permission as the petitioner had obtained building permission suppressing the material facts by invoking provisions under Sec.450 of Hyderabad Municipal Corporation Act and as such there is no illegality, arbitrary in cancelling the building permission.

15. Even though in the writ affidavit, the petitioner and the 4th respondent had entered into memorandum of understanding dated 30.6.2018 stating that the 4th respondent started making claim in an extent of 266sq.yards covered by plot no.9 within the compound wall constructed by the vendor of the petitioner and the petitioner has agreed to pay an amount of Rs.25,72,752/- to the 4th respondent and the 4th respondent has agreed to sign on the necessary documents admitted and recognizing the right, title and possession of the petitioner and as such by reading the memorandum of understanding the 4th respondent had agreed to sign on the necessary documents transferring his title in plot no.9 to the petitioner which is future act and as such there is no evidence on record to show that the 4th respondent had transferred the title over plot no.9 in favour of the petitioner and in the absence of transferring the title by way of registered sale deed the petitioner cannot claim title over the plot no.9 and as such the memorandum of understanding as claimed by the petitioner dated 30.6.2018 cannot be construed as an instrument of document transferring the title in favour of the petitioner. Even the said memorandum of understanding dated 30.6.2018 is subsequent to the building permission granted on 22.6.2018 which is also evident to show that the petitioner has encroached the plot no.9 belonging to the 4th respondent and as such viewed from any angle the writ petition is liable to be dismissed.

16. Learned counsel for the petitioner had argued that the grama panchayat of Nidigattu, Bheemunipatnam Mandal before its resolution dated 24.5.2018 has resolved and approved plan for construction of residential building stilt, Ground + 4 floors in favour of the petitioner. In fact by proceedings dated 18.01.2020, the competent authority i.e. Revenue Divisional Officer in his proceedings has granted conversion of their land in survey no.31 of Nerellavalasa village of Bheemunipatnam mandal from agriculture purpose to non-agriculture purpose. In fact in the said proceedings it is categorically stated that as per the report submitted by the Tahsildar, Bheemunipatnam, the two projects have got pattadar pass books measuring an extent of 84.15cents vide ROR 1-B no.798 which was purchased in two spells vide registered document no.3378/2016 and 104/2017 and after verifying the revenue records conversion is permitted.

17. Learned counsel further submitted that as per the schedule of the development agreement entered by the petitioner’s firm with the land owners of Nidigattu panchayat and as per the development agreement/General Power of Attorney dated 18.9.2017 as well as the sale deed dated 09.12.2017 clearly discloses that 30 feet vide road on Western side. Basing on the said documents, the petitioner has made an application for building permission and after ground verification, the competent authority VMRDA has granted permission for construction. It clearly demonstrates that after completing the construction and after selling the residential plots to the 3rd parties, initially the 2nd respondent had issued notice on 06.5.2020 under section 452(1) and 461(1) of APMC Act 1955 alleging that one side building setbacks not in accordance with the approved plan. Instead of leaving 5 meters by leaving only 2.5meters, the petitioner had constructed building. To the said notice, the petitioner had submitted his reply categorically stating that he left 5 meters of the land and only for the kids zone it had constructed a small wall in between and the same can be established on site.

18. After receipt of the said reply, the authorities have invented the present allegation that the petitioner had obtained permission by misleading the facts this is totally contrary to the documents. The plan was approved by the VMRDA after due verification of the records as well as field inspection on 22.6.2018. Instead of considering the reply submitted by the petitioner on 07.5.2020, the respondent authorities have issued the present notice on 13.12.2020 basing on the complaint made by the president of Bheemunipatnam Mutually Aided Co-operative Building Society Limited and also the representation made by the 4th respondent is totally baseless and beyond jurisdiction. In fact, the petitioner had submitted its reply on 19.12.2020 stating that there has been a 30 feet road existing since beginning and all the plot owners by the side to the 30 feet road show the set right as boundary. After due verification of the same by the VUDA and CRZ, panchayat granted the permission. Without considering the same and without verifying the records, in collusion with 3rd and 4th respondent, the present impugned orders are passed.

19. Learned Counsel for the petitioner has further submitted that in fact the impugned orders dated 15.4.2021 clearly demonstrates that the authorities have gone beyond the jurisdiction and as if an executing court, has declared that plot no.9 in an extent of 267sq.yars has been in favour of the 3rd parties and presuming that the suit had been declared in favour of 3rd parties and the petitioner had misrepresented the same before the authorities while obtaining the permission. It is surprise to see the order that the entire order is passed on assumptions and presumptions in hasty manner. In fact the petitioner had brought to the notice of the court about the complaint made by the 3rd respondent as well as the 4th respondent. The said documents were filed along with the counter. The 3rd respondent has made a complaint on 11.11.2020 to the Commissioner wherein they have not stated anything except that the petitioner obtained construction of a building in survey no.31/1 of Nerallavalasa village of Bheemunipatnam mandal has been sanctioned on 22.6.2018. As the plan was sanctioned without proper verification and there is no approach to the building and accordingly they have made a complaint to the sanctioning authority i.e. VMRDA for proper verification. As the authorities have not considered the complaint made by the petitioner, hence now they have sent a legal notice and accordingly they have called for ownership documents for sending them to GVMC for taking action and in the said complaint they have not stated, when they have made a complaint to the VMRDA against the petitioner’s application for building plan and in the said complaint there is no mention why they have kept quite since 22.6.2018 and till completion of the building construction. There is no whisper about the existing 30 feet road in their complaint. As far as the letter submitted by the 4th respondent there is no date, the content of the letter is very vague that the Dhome projects has constructed the building in others land without having approach road and requested to take action. Surprisingly considering the said two complaints, the authorities have initiated the present action against the petitioner and issued orders invoking section 450 of GHMC Act 1955.

20. The petitioner submits that 2nd Respondent being statutory authority under the provisions of Andhra Pradesh Municipal Corporations Act is under obligation to act fairly while exercising the powers. Section 450 of the Act empowers the 2nd Respondent to cancel the building permission if the same is found to have obtained by suppressing material facts. The petitioner main contention is that before passing such adverse orders, a fair opportunity shall be given to the petitioner.

21. Though notices were served on the 3rd and 4th respondent, they did not choose to file any appearance before this court.

22. Learned Standing Counsel appearing on behalf of the 2nd respondent had submitted that on complaint received from the 3rd respondent on 13.11.2020 and as per the provisions of the Act, the authorities have initiated and issued fresh notice on 13.12.2020 under section 450 of Hyderabad Municipal Corporation Act. In fact after complaint made by the 3rd respondent, the Town Surveyor has submitted his remarks stating that 0.015cents fell in kacha road i.e. in survey no.118/P of Nerallavalasa village of 3rd respondent. Hence, the petitioner has obtained the building permission by misrepresenting the facts to the authorities. While the things stood thus, they have also received one more representation from the 4th respondent, the authorities after due enquiry has passed the appropriate orders by cancelling the permission granted to the petitioner. Considering the proceedings dated 15.4.2021 and also the consequential orders dated 16.4.2021 sealing the building is in accordance with the provisions of the Act.

23. After hearing both the counsel, this Court called for the original record. The record contains the building permission granted in favour of the petitioner dated 22.6.2018 along with the plan. After that the complaint received from the 3rd respondent on 11.11.2020 and notices issued by the respondents dated 06.5.2020 and reply submitted on 07.5.2020. After reply submitted by the 3rd respondent and the letter of the 4th respondent without date and acknowledgment. There is a letter/report/re-survey report submitted by M.Chandra Sekhara Rao dated 08.4.2021 of Town Surveyor, Bheemili Zone, GVMC, Visakhapatnam. In the said letter no date, no seal and no reference. The content of the report says that “Inspected the site along with Dy.City Planner, Assistant City Planner, Tpo and the President and Secretary of BMACBS Ltd and D-Homes project in charge concerned. A katcha road connected to BT Road from D-Home project apart and the BT road connected to the Visakhapatnam Bheemili 150.0 feet master plan beach road. The katcha road laid in Sy.No.31/1 and small extent covered in Sy.No.118/part. As on ground verification an extent nearly Ac.0.015cents fallen in katcha road i.e., 118/P as owned by the BMACBS Ltd. which is allotted by the State Government and Sy.No.31/1 is private land as per revenue records. Western side of the katcha road there is some un approved open plots are also placed and bounded with compound walls lies in Sy.No.31/1”. On verifying the said report it clearly demonstrates that whether the said Chandra Sekhara Rao, Town Surveyor has followed the procedure contemplated under the rules while surveying the subject land. When there is no seal of the authority, the authenticity of the report itself is doubtful.

24. On perusal of the entire record, it clearly demonstrates that the 2nd respondent has not followed any procedure and he has not taken minimum care while passing the impugned orders. The letters of the 3rd respondent and the 4th respondent clearly goes to show that they have not given minimum information with regard to their claim/complaint. Even though notices are served on respondent nos.3 and 4, they have not chosen to appear before this Court which itself clarifies, the interest of the 3rd and 4th respondents. When the parties made a complaint to the authorities and basing on that complaint, the authorities have initiated action against the petitioner but surprisingly, the said persons are not shown any interest to establish their claim before this Court.

25. On perusal of the record, the 3rd respondent has made a very vague complaint on 11.11.2020, there is no mention about their rights over the properties in the subject. In the said complaint as if they have made a complaint to the VMRDA at the time of granting building permission to the petitioner, but they have not mentioned the date of the complaint or copy of complaint is also not filed along with the record. That itself shows that after two years for extraneous consideration, the 3rd respondent might have filed this complaint without any valid documents. On perusal of the complaint made by the 4th respondent, has not stated anything about the suit and the decree obtained by the vendor of the 4th respondent, but surprisingly, the 2nd respondent has considered the decree passed by the Additional Junior Civil Judge, Bheemunipatnam in favour of the vendor of the petitioner. And as if like an executing court has declared the title against the petitioner and initiated action.

26. Section 450 of the Greater Hyderabad Municipal Corporation Act, 1955 reads as follows:

“450: Power of Commissioner to cancel permission on the ground of material misrepresentation by applicant:

If at any timer after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permision was granted in consequence of any material representation or fraudulent statement contained in the notice given or information furnished under Section 428 or 433 in the further information if any, furnished, he may cancel such permission and any

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work done thereunder shall be deemed to have been done without his permission. A plain reading of the above provision goes to show that this provision applies to cases where building permission were obtained by a party on material misrepresentation or fraudulent statement made. It is also not out of place to mention that on various pronouncements made by the Hon’ble High Court that the Commissioner has not power to adjudicate or pronounce any opinion with regard to the title of a person. But in the instant case, there is no finding with regard to fraud played by the petitioner, while obtaining the building permission. Even according to the documents and title deeds filed by the petitioner discloses that there is an existence of 30 feet kacha road. Hence it cannot be construed that the petitioner has obtained permission by mis-representation, thus there are no substantial grounds for invocation of section 450 of GHMC Act 1955. 27. In view of the above, it clearly establishes that the authorities with an vindictive attitude and without having substantial ground and material passed the impugned orders dated 15.4.2021, 16.4.2021 and 17.4.2021 are passed. 28. On perusal of the impugned order shows that no physical hearing is conducted. On perusal of the record no such material is available with regard to the assertion made in the impugned order. The complaints made by the respondents 3 and 4 are also discloses that they have not filed any record or material along with the complaint and it is surprising to note that how the respondent no.2 got the information which is not available in the original record. 29. Though there is power, it is not necessarily abuse of power. There is a presumption that public officials would discharge their duties honestly and in accordance with law. Even administrative power to be exercised to fulfill the real purpose and not for any extraneous purpose. Where an authority makes an order in exercise of power, it must record reasons in support of the relevant material. 30. Considering the same, the orders passed on 15.4.2021, 16.4.2021 and 17.4.2021 are set aside and the respondents are directed not to initiate any further action under section 450 of Act without having any substantial material. On perusal of the record, this Court feels to impose costs of Rs.25,000/- (Rupees twenty five thousand only) on the 2nd respondent for its high handed action. 31. Accordingly, the writ petition is disposed of. As a sequel thereto, the miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
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