W.V.M.P. No. 4714 of 2016, W.V.M.P. No. 1473 of 2017 in W.P. No. 31004 of 2016, W.P. No. 1123 of 2017 and C.C. No. 2124 of 2016. Case: Dhulipalla Murali Vs State of A.P. and Ors.. High Court of Andhra Pradesh (India)

Case NumberW.V.M.P. No. 4714 of 2016, W.V.M.P. No. 1473 of 2017 in W.P. No. 31004 of 2016, W.P. No. 1123 of 2017 and C.C. No. 2124 of 2016
JudgesM.S. Ramachandra Rao, J.
IssueIndian Evidence Act, 1872 - Section 44
Judgement DateApril 25, 2017
CourtHigh Court of Andhra Pradesh (India)


M.S. Ramachandra Rao, J.

  1. Since common issues of fact and law arise between the parties to these proceedings and all these cases relate to constructions made in same premises by the non-official respondent in these cases, they are being disposed of by this common order.

  2. Heard Sri V. Surya Kiran Kumar for petitioner, Sri Ancha Panduranga Rao, Standing Counsel for Respondents 2/5 in both W.Ps and Respondent No. 1 in the CC, and Sri K.S. Murthy for Sri P. Subba Rao, Counsel for 4th respondent in the W.Ps and 2nd respondent in the CC.

  3. The petitioner is a senior citizen and is carrying on Medical Profession in a hospital by name Dhulipala Hospital at premises bearing Door No. 12-25-179, Opposite Sivalayam, Kothapet, Guntur.

  4. The 4th respondent in the Writ Petitions is the owner of the property bearing Door No. 12-25-180 which is adjacent to the petitioner's property. He is the 2nd respondent in C.C. No. 2124 of 2016.

  5. In both writ petitions, the 1st respondent is the State of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration, the 2nd respondent is the Guntur Municipal Corporation, the 3rd respondent is the A.P. Capital Regional Development Authority and the 5th respondent is the Commissioner of the Guntur Municipal Corporation impleaded eo nominee.

    W.P. No. 31004 of 2016

  6. Initially the petitioner filed W.P. No. 31004 of 2016 for a Writ of Mandamus declaring the order in proceedings Roc. No. 5005/2016/G2, dt. 28.06.2016 issued by the 5th respondent on behalf of the 2nd respondent as illegal, arbitrary, mala fide and without jurisdiction; to set aside the same; and to direct the 2nd respondent Corporation to take steps for demolition of the illegal and un-authorised structures put up by the 4th respondent in the premises 12-25-180, Kothapet.

  7. Admittedly in the premises D. No. 12-25-180 belonging to 4th respondent, there was originally a hotel by name Abhilasha Hotel. According to the 4th respondent, his mother constructed a Ground + First floor + Second floor in the said premises after obtaining permission for construction, vide proceedings Rc. No. G3, B.L. No. 421/78 dt. 03.02.1978.

  8. The petitioner contended that without obtaining any permission from the 2nd respondent Corporation, the 4th respondent excavated a cellar, raised additional pillars/beams increasing the area of each floor resulting in the setbacks becoming non-existent and even occupied part of the petitioner's property. He contended that the excavation resulted in caving in of soil in petitioner's property creating gaping holes therein and exposing water and drain pipe lines. According to the petitioner, the construction activity undertaken by the 4th respondent endangers the safety of his building and inspite of complaints made on 25.02.2015, 07.04.2015, 17.03.2015 and 06.04.2016 to the 2nd respondent, no action was taken by it. He contended that he also addressed a complaint to the 3rd respondent and the 3rd respondent wrote to the 2nd respondent in L. Dis. No. E1-169/2015 dt. Nil-08-2015 stating that the construction embarked by the 4th respondent was un-authorised and the 2nd respondent should take action and report to it, but the 2nd respondent did not take any action.

  9. The petitioner then filed W.P. No. 12357 of 2016 in this Court challenging the inaction of the 2nd respondent on his complaints. The said Writ petition was disposed of on 13.04.2016 to take action within four weeks from the order on the petitioner's above complaint.

  10. The petitioner then filed C.C. No. 916 of 2016 alleging disobedience of this order, but the said Contempt case was closed on 27.08.2016 on the basis of a counter affidavit filed by the 5th respondent that she inspected the building and instructed the 4th respondent to submit building proposal of third floor in accordance with rules; and that the staff of the 2nd respondent corporation had removed one column on the northeast side and third floor roof slab. Proceeding Dt. 28.06.2016

  11. A memo Roc. No. 5005/2016/G2 dt. 28.06.2016 was issued by the 5th respondent to the 4th respondent advising the 4th respondent to apply for permission on line for construction of the third floor in his premises. This Memo is challenged in W.P. 31004 of 2016.

  12. Petitioner contends that once the 5th respondent found that there was illegal construction being done by the 4th respondent, she should have directed its removal and could not have issued the impugned proceeding dt. 28.06.2016 advising the 4th respondent to apply for online permission. The petitioner also filed photographs of the third floor construction being done by the 4th respondent and also pillars for the fourth floor put up by him.

  13. The petitioner alleges that the 4th respondent again repaired the portion of the structure demolished in part by the 2nd respondent and was proceeding to construct a fourth floor also.THE INTERIM OTRDER dt. 19.9.2016 in W.P.M.P. No. 38372 of 2016 in W.P. No. 31004 of 2016

  14. On 19.09.2016 in W.P.M.P. No. 38372 of 2016 in W.P. No. 31004 of 2016, this Court directed the 2nd respondent to stop all construction activity by the 4th respondent since prima facie, the 4th respondent did not have permission for construction of the third floor. W.V.M.P. No. 4714 of 2016 AND W.V.M.P. No. 1473 of 2017

  15. W.V.M.P. No. 4714 of 2016 was filed by the 4th respondent and W.V.M.P. No. 1473 of 2017 was filed by 2nd respondent to vacate the said order.

  16. The 4th respondent contended that the 2nd respondent granted building permission for erecting 3rd and 4th floors vide permit dt. 26.08.2016 on the basis of an application made online in April, 2016 by the 4th respondent and that after obtaining such permission, he started construction of 3rd and 4th floors.

  17. This contention cannot be accepted because the 2nd respondent did not state that the 4th respondent had applied for permission for construction of 3rd and 4th floors in April, 2016 as alleged by the 4th respondent. Copy of alleged application for permission made by 4th respondent has not been filed by respondents.

  18. The photographs filed by the petitioner on 12.09.2016 along with the Writ petition disclosed the existence of 3rd floor in the 4th respondent's building with slab, walls and window shutters apart from pillars to support the 4th floor slab (which was not yet laid). These photographs are not disputed by Counsel for 4th respondent.

  19. In my opinion, pursuant to the permission issued on 26.08.2016, by 12.09.2016 (the date when the W.P. 31004 of 2016 was filed) in a mere 14 days, all the above structures could not have been erected by the 4th respondent. So I hold that 3rd floor was already constructed before the 4th respondent applied for permission for construction.

  20. Further, in my opinion, it is impossible to excavate a cellar when there is already an existing ground + two floors building (where the hotel was previously being run). This is not denied by respondents.

  21. Obviously, the 4th respondent had removed the old structure of Ground + two floors in which the Hotel was earlier run, excavated the cellar without permission and erected G+ 4 floors and pent house without adhering to the setbacks and without taking any fresh permission for constructing the G+ 2 floors and cellar.

  22. In any event 4th respondent did not explain how he could have excavated a cellar without any permission.


  23. In order to verify the...

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