P HEMALATHA Vs. RAJAHMUNDRY MUNICIPALITY

JUDGEMENT

(1.) Against the judgment and decree of the I Additional District Judge East Godavari. at Rajahmundry, made in A S No. 181 of 1980 reversing the judgment and decree of the I Additional District Munsif, Rajahmundry. in 0 S No 186 of 1977, the plaintiff has preferred this second appeal.

(2.) The plaintiff purchased plot No. 324 admeasuring 150 square yards, which was part of a larger extent of 26 acres of land in T S No. 1938/1, 2"and 4 which was acquired by the Municipality for purpose of constructing houses for weaker sections and also for el lotting 25% of that site to Municipal employees. The permission sought by the plaintiff for construction of a building was rejected by the Municipality on 22-6-1971 on the ground that the same was in violation of the lay out conditions and the Director of Municipal Administration did not accord approval. She later on approached the Municipal Chairman and represented to him about her grievance, and the Municipal Chairman, it was her case, permitted her to proceed with the construction. ' A prosecution was launched against her by the Municipality for unauthorised construction and a fine of Rs. 50/- was imposed upon her by the Special First Class Judicial Magistrate" Rajahmundry, for contravention of the Buildings Rules 9(2)(1) and (4). Subsequently a notice dated 7-3-1976 was issued by the Municipality calling upon her to remove certain portions of the building which are in violation of the Building Rules. She filed the suit, O S No. 186 of 1976 for a declaration and injunction against the Municipality for restraining it from enforcing the aforesaid notice, it was the case of the plaintiff that she pleaded guilty before the Judicial First Class Magistrate in S T C No. 2178 of 1974 as a result of the inducement of the Municipaltiy. that no further action would be taken if she were to admit the offence. The Municipality also had recommended her case for exemption to the Director Town Planning and, therefore, the impugned notice was bad in law. The suit was registered by the Municipality contending that no such inducement was held out to the plaintiff to admit the offence.

(3.) On a consideration of the evidence brought on record and having regard to the fact that before directing demolition the Municipal Authority concerned must exercise the discretion, whether the breach complained of was a trivial one or a substantial one, the learned District Munsif decreed the suit holding that the impugned notice was arbitrary. The Municipality appealed against that judgment in A S No. 181 of 1980. The Learned I Additional District Judge reversed the judgment of the Learned I Additional District Munsif taking the view that when the plaintiff admittedly had constructed the building without the necessary approval and when - the evidence of D W 1, the Municipal Officer; was to the effect that if, the offending portions of the building were not removed, the circulation of the air and light into the main house would be affected, it could not be said that the notice was arbitrary. Aggrieved by that, the plaintiff filed the present second appeal. ,