M SATYANARAYANA Vs. BHIMAVARAMMUNICIPAL COUNCIL

JUDGEMENT

(1.) The 2nd respondent by the impugned proceedings dated 1.4.1999 having rejected the explanation dated 20.2.1999 submitted by the petitioner to the provisional notice dated 17.2.1999, directed the petitioner to remove all the unauthorized constructions/extensions made in the petitioner's site within the stipulated time failing which, the order directs, the unauthorized constructions would be demolished departmentally and the costs therefor recovered from the petitioner. The writ petition assails this order.

(2.) The petitioner is the owner of 226 1/2 S.Yds, of land in RS No.489/3, Ward-30, Katarinagar, Bhimavaram Municipality. According to the petitioner, when the respondent - Municipality issued a notice directing removal of the compound wall in the site, the petitioner instituted OS No.121/91 before the I Addl. District Munsif, Bhimavaram, against the Municipality for a permanent injunction restraining demolishing of the southern side compound wall and in any way interfering with the petitioner's possession and enjoyment of the site and the house therein. An interim injunction was granted. The suit was however dismissed on 31/10/1996. The petitioner preferred AS No.3/97 against the said dismissal. The petitioner admits at the hearing of the writ petition that the appeal has also since been dismissed. During the pendency of appeal however the Municipality issued a provisional notice dated 17/2/1999 u/Sec. 228(1) and (2) of the A.P. Municipalities Act 1965 ('the Act') stating that the petitioner had commenced construction in the property without permission from the municipality and that he is directed to stop the construction forthwith, to remove the cons ructions already made without permission and to obtain permission as per the building rules. The petitioner was asked to show cause why the proposals in the notice be not confirmed. To this notice the petitioner submitted his explanation on 20.2.99. He merely stated therein that the suit filed by him OS No.121/92 was dismissed on 31/3/1996, that aggrieved thereby he preferred AS No.3/97 and since the appeal is pending adjudication no removal or demolition of the constructions could be made as the matter is sub judice. It requires to be noticed that the petitioner did not dispute the assertions in the notice dated 17/2/1999 that the constructions in the site were without permission of the Municipality and in contravention of the provisions of the Act.

(3.) The respondent-Municipality then issued the impugned order. The order states that the petitioner had constructed the building unauthorisedly without any permission from the Municipality and that earlier when a notice dated 26/2/1991 was issued u/Sec. 228(1) and (2) of the Act, the petitioner had filed OS No.121/92, which was however dismissed. Instead of complying with the provisional notice dated 26/2/1991 the petitioner continued the unauthorized constructions. The respondent further stated in the impugned order that the mere pendency of AS No. 3/97 would not inhibit the power of the municipality to demolish the unauthorized constructions; that the constructions were not only unauthorized and in violation of the Act, but also in violation of the A.P. Town Planning Act as the constructions fall partly in the open space ear marked for a public purpose in the master plan and partly in the 30 ft, wide master plan road and therefore the petitioner is liable for action u/Sec. 44B of the Act.