ORDER
1. One Sri Sharif Iqbal Hussain Ahmad, petitioner herein filed this writ petition seeking a writ of mandamus directing the official respondent Nos.1 to 3 to restrain the un-official respondent No.4 from constructing the first floor on the premises bearing No. 11-40-2 situated at Pulaparthi Street, Vijayawada, which is in violation of the zoning regulations and municipal bye-laws and to pass any other order or orders in the interest of justice.
2. This Court by enter dated 13-5-1997 while admitting the writ petition, passed an order in WP MP No.12885 of 1995 directing the 4th respondent to stop further construction. This Court also passed orders in WPMP No. 12886 of 1997 directing the Commissioner, Vijayawada, Guntur and Tenali Urban Development Authority (hereinafter referred to as UDA) to see that the unofficial 4th respondent does not violate the regulations or the building bye-laws. In WPMP No.12885 of 1985, as per the orders of this Court, it is seen that notice to the 4th respondent seemed to have been issued and when the said WPMP came up for hearing on 27-6-1997, the learned Counsel for the petitioner brought to the notice of this Court that inspite of the orders passed by this Court, dated 13-5-1997, the 4th respondent is going ahead with the construction work and the 3rd respondent is not able to curtail the 4th respondent from making further constructions. In those circumstances, this Court by order dated 27-6-1997 directed the 3rd respondent to report this Court about the stage of construction within a period of one week from the date of receipt of a copy of the order and also directed the concerned police including the Commissioner of Police, Vijayawada to give effect to the orders of this Court dated 13-5-1997 and prevent the 4th respondent from making any kind of further construction and if the 4th respondent is found violating the said order, suitable action will be taken.
3. From the counter of the 3rd respondent it is seen that he seemed to have sent a report to this Court on 5-7-1997, wherein he stated that the 4th respondent has constructed ground floor and first floor and the same was completed except finishing work like flooring, etc., in the 1st floor. The ground floor was let out for shops but not yet been occupied. He also stated that the UDA granted permission for conversion of the tiled roof as per the orders of the Government in G.O. Rt. No. 199 MA, dated 8-2-1995 where under certain zoning regulations were relaxed in favour of the 4th respondent.
4. During the pendency of the writ petition, the petitioner died and his legal representatives were brought on record asper the orders of this Court in WPMP No. 19623 of 2000, dated 7-9-2000. By order, dated 7-9-2000, I directed the appearance of the 4th respondent before this Court on 19-9-2000. There after, the respondents played hide and seek game with the Court for some time stating that the 4th respondent is now staying in Gulf. When the matter came up for hearing on 29-9-2000, the notice sent to the 4th respondent was returned un-served and the learned Counsel for the petitioner brought to my notice that the 4th respondent is now in Gulf and his affairs are being looked after by his father and his younger brother. While directing the office to issue notice to both the individuals to appear before this Court on 12-10-2000, I gave show-cause notice to the 4th respondent as well as the Commissioner of Vijayawada as to why contempt proceedings should not be initiated against them for not giving effect to the orders of this Court dated 13-5-1997 and 27-6-1997. Whey they did not appear before the Court, this Court was pleased to issue NBW for securing their presence. As per the orders of this Court dated 12-10-2000, both of them appeared before this Court on 23-10-2000 and sought for time to file counter. Having withdrawn the NBWs against them, I directed the respondents not to make any further construction on the disputed premises and if any attempts are made for making the construction, the petitioner shall approach the Municipal Commissioner and the Commissioner of Police who were directed to depute their officer without any delay to see that the construction if any made is stopped.
5. The factual background of this case is that on 13-7-1984, the 4th respondent sought for permission of conversion of the tiled roof house bearing No.11-40-2 before the 3rd respondent and the 3rd respondent in turn forwarded the application to the 2nd respondent-UDA which is empowered togrant permission for construction of the building in Vijayawada Municipality as per the master plan approved by the Government of Andhra Pradesh in G.O. Ms. No.724 MA, dated 4-11-1980. The 2nd respondent having received the application, deputed the Technical Inspector to inspect the site and submit a report. The Technical Inspector having visited the place on 20-7-1984, submitted a report stating that the plan is not in accordance with the bye-laws and the same has to be returned. At the same time, in the report he categorically stated that by the time he inspected the premises, the tiled house was completely demolished and the 4th respondent started construction in violation of the plans submitted by him and the construction has reached the stage of laying pillars. Accordingly, while returning the plan to the 4th respondent by issuing notice dated 30-7-1984, he was asked to submit his explanation as to why the constructions made till then should not be removed under Section 43 of the Andhra Pradesh Urban Development Act. The 4th respondent was also served with a notice dated 30-7-1984 under Section 43 of the Act, whereunder it is stated that if the 4th respondent would not stop further construction, serious action will be taken against him under Section 43 of the Act. Thereafter, the petitioner (sic 4th respondent) approached the Government seeking relaxation of the building bye-laws and the Government was pleased to accede to his request and relaxed the zoning regulations by issuing G.O. Rt. No.199 MA, dated 8-2-1985. Later on the petitioner filed WP No.1973 of 1986 on the file of this Court. This Court while admitting the writ petition, passed an ex parte order in WPMP No.2000 of 1985, dated 27-3-1985 stating that if any construction is made before the disposal of the writ petition, the same will be made at the risk of the respondent. Subsequently, the 4th respondent entered appearance and filed counter in the above writ petition.
6. Inspite of the orders of this Court, the 4th respondent went on making constructions. In those circumstances, the petitioner filed WPMP No.2800 of 1985 seeking interim injunction restraining the 4th respondent from making any further construction. This Court by order dated 23-7-1985 restrained the 4th respondent from making any further construction in the disputed premises. Along with the petitioners, some other neighbours also seemed to have filed similar writ petitions and all the writ petitions were disposed of by a common order dated 7-4-1987 and the GO relaxing the zoning regulations was quashed by this Court on the ground that the Government has no power to grant relaxation. This judgment has become final.
7. During the pendency of this writ petition, when the respondents tried to construct the stair-case, the petitioner seemed to have filed OS No.430 of 1985 on the file of the District Munsif Court, Vijayawada, seeking mandatory injunction to remove the stair-case that is being constructed by R4 by piercing the iron rods into the wall of the petitioner's house in violation of the statutory rules. After the writ petition was allowed by this Court, the petitioner filed an application in IA No.218 of 1992 seeking amendment of the plaint duly bringing the happenings in the High Court and also sought for amendment of the prayer and the schedule attached to the plaint i.e., seeking injunction directing the respondent herein to demolish the stair-case and the building which was constructed in violation of the regulations. But the suit was dismissed by the District Munsif by judgment and decree dated 2-9-1996 holding that there is no personal injury to the petitioner and if the public law, zoning regulations and bye-laws are violated, the petitioner as a neighbour cannot complain. Aggrieved by the said judgment and decree of the Munsif Court, the petitioner filed AS No.52 of 1996on the file of the Principal Senior Civil Judge, Vijayawada and the same is still pending.
8. As the subject-matter of the appeal and that of the writ petition being one and the same, to avoid conflicting judgments, this Court by order dated 5-12-2000 withdrew the appeal from the file of the Principal Senior Civil Judge, in exercise of the powers vested in it under Section 24 of CPC, to minimise the litigation and also to render a comprehensive judgment on all the issues raised in this writ petition.
9. At the same time, the petitioner went on making representations to various authorities seeking demolition of the building that has been constructed by the 4th respondent as per the orders of this Court in WP No. 1973 of 1986 and Batch, dated 17-4-1987. When his efforts did not yield results and when the 4th respondent started reconstruction of the building, after dismissal of the suit, he filed the present writ petition on the file of this Court.
10. From the counters filed by the 3rd respondent as well as the 4th respondent, it is very much evident that the 4th respondent completed the construction of the building. The Police Commissioner in his counter categorically stated that by 22-10-2000 the 4th respondent has completed the construction of the ground floor except flooring in the 1st floor and white wash and also let out all shops in the ground floor by the time the writ petition was filed on the file of this Court.
11. The 3rd respondent in his counter dated 30-8-1998 in para 5 stated that 'Since the construction of 1st floor was completed long back except flooring and white wash, a notice was issued to the 4th respondent to stop further construction on 4-7-1978'. He also stated that as per the directions of this Court, he sent a report to this Court.
12. It is interesting to note that the 3rd respondent has sworn to a false statement supporting the case of the 4th respondent. For instance, while the relaxation of the GO 8-2-1995 issued by the Government states that the site acquired for road widening was relaxed to an extent of 1-67 meters, the counter of the 3rd respondent says that as per the sanctioned master plan, Puliparthivari Street was not proposed for road widening. He denies the allegation that the 4th respondent has constructed the house in the disputed area in violation of the plan and in the area marked for road expansion without leaving any open space. He has gone to the extent of stating that the construction made by the 4th respondent has not caused any obstruction to the traffic and also not caused any inconvenience to the neighbours.
13. From his counter it is seen that the Commissioner has taken the stand contrary to the building bye-laws and zoning regulations and he justifies the construction of the house made by the respondent. As this type of officers are there in the Government, lawlessness is increasing in the society and the influential people are not only violating the law of the land but also escaping from the cultches of the law by using the political clout at their disposal.
14. The 4th respondent also while admitting the completion of the construction contended that the construction was completed way back in the year 1986 in the following terms:
'The deponent to the affidavit under reply was aware that construction of the building was completed as far back as in the year 1986 which consists of ground floor and 1st floor plus 1st floor and no further constructions of any kind was undertaken by the 4th respondent at any point of time thereafter'.
15. From this it is seen that even after the relaxation of the GO quashed by thisCourt, the 4th respondent is trying to contend that even before this Court struck down the GO, he has completed the construction of the building. I feel that this is a bitter pill to swallow for the simple reason that the application filed by the 4th respondent on 13-7-1984 for approval of the building plans were returned on 30-7-1984 by which time he raised the pillars. At any rate, after return of the plans, he cannot and would not have taken up the construction till the Government passed orders relaxing the zoning regulations on 8-2-1985.
16. Initially this Court observed that any construction made before disposal of the WPMP will be at the risk of the deponent. After the respondent filed counter, this Court granted injunction restraining him from proceeding further with the construction on 23-7-1985, In the counter he never stated that he has completed the construction by the time he filed counter. Be that as it may, in the present counter he stated that he has completed the construction in the year 1986. In other words, the 4th respondent went ahead with the construction of the building inspite of the prohibitory orders passed by this Court way back on 23-7-1985 even as per his own admission in the present counter. On this ground alone, the petitioner has to succeed as no building can be constructed without any approved plan in any municipal area and the same is per se illegal and a direction has to be given to the 4th respondent for demolition of the structure.
17. But a glance at the proceedings in the civil Court as well as this Court will amply prove that he has not completed the construction in the year 1986 and as and when he was able to manage the Corporation officials, he was making constructions inspite of the hue and cry that is being raised by the petitioner as and when the 4th respondent started construction work.
18. I am fortified in my view on the basis of the following events :
For the first time the 4th respondent made an application to the authorities concerned seeking permission for demolition of the tiled house and in its place to construct two storied building on 13-7-1984. When the Surveyor visited the site on 20-7-1984 i.e., one week after he filed the application, he found that the entire tiled house was demolished and in its place the RCC Pillars came up for construction of the new building. As the plan submitted by him was returned on 3-7-1984 itself, the construction would not have taken place, and at any rate he would not have laid the roof.
19. Pursuant to the GO issued by the Government relaxing the zoning regulations, the Urban Development Authority has given permission for construction of RCC roof building in its proceedings RC No.2999/84 dated 19-3-1985. On 27-3-1985 this Court in WPMP No.2800 of 1985 in WP No.1973 of 1985 passed an order to the effect that any construction made before the disposal of this writ petition will be at the risk of the defendant. Inspite of the orders of this Court, the 4th respondent went ahead with the construction and when the iron rods of the stair-case were pierced into the wall of the petitioner, he filed a suit in OS No.430 of 1985 on the file of the District Munsif Court, Vijayawada for permanent injunction restraining the respondents from construction of the stair-case. But no injunction seemed to have been granted at this stage by the civil Court. In those circumstances the 4th respondent seemed to have continued the construction and the petitioner was forced to file WPMP No.2800 of 1985 in the said writ petition pending on the file of this Court and on 27-3-1985 after hearing both the parties a prohibitory injunction was issued against the 4th respondent from making any further construction. Subsequently the writ petition was allowed on 17-4-1987 andtherefore, the question of making any further construction thereafter does not arise as the order of this Court became final. Even assuming without admitting that the 4th respondent proceeded with the construction between 27-3-1985 and 23-7-1985 at worse he might have completed the work of laying the roof at the ground floor, but it is highly impossible to complete the construction work. Again the respondent seemed to have started construction clandestinely in the year 1992 and the said action on the part of the 4th respondent forced the petitioner to file IA No.2I8 of 1992 seeking amendment of the prayer where under the petitioner asked not only for mandatory injunction directing the respondent herein to demolish the stair-case, but also the very building which was constructed in violation of the regulations and the said IA was allowed on 23-10-1992.
20. Before commencement of the trial in the suit the petitioner filed IA No.427 of 1995 for appointment of an Advocate-Commissioner to submit a report with regard to the stage of the construction and the Advocate-Commissioner visited the site on 19-8-1995 and submitted his report. I need not refer to the report of the Advocate-Commissioner and suffice to say that in paragraph-11 he stated as under:
'Total first floor of the petitioner's building is in unfinished condition, except roof. There is no other construction in the first floor, except sun-shade'.
21. From this it is seen that the respondent completed the construction of the ground floor and he laid the roof and sun-shade for the first floor. At the same time, while giving evidence as DW in the suit the respondent No.7 i.e., the brother of the 4th respondent while giving evidence as DW1 in the suit stated that the construction of the house was done in accordance with the sanctioned plan given by the Urban Development Authority. He also admitsthat when the petitioner raised obstruction for construction of the stair-case in the year 1985, the entire stair-case was removed and a new staircase from inside the building was constructed to avoid future disputes with the petitioner. He further stated that 'before we removed the staircase, the first floor construction was already completed'.
22. Tin's statement runs counter to the advocate Commissioner's report. In the cross-examination he also stated that 'it is true to suggest that one granting of GO the relaxation granted under stands cancelled and the objection taken by the Vijayawada Urban Development Authority stands good and before March, 1995 the ground floor construction was completed and we did not give any notice to the Municipal Corporation or the Urban Development Authority after the construction of the ground floor. From this it is seen that the witness was well aware of the consequences that will flow from the order of the High Court quashing the GO granting relaxation, though the sentence extracted above is not properly worded. Further according to him he completed the ground floor in 1985, but not his entire building as stated by him earlier in the chief examination. Subsequently, the District Munsif seemed to have dismissed the suit on 2-9-1996. The petitioner having filed the first appeal in AS No.52 of 1996 before the Senior Civil Judge filed the present writ petition.
23. In WPMP No.12886 of 1997 by an order dated 13-5-1997 this Court directed the respondent No.3 to see that respondent No.4 do not violate the zoning regulations or Building Laws. When the other WPMP No. 12885/87 came up for hearing on 27-6-1997, the learned Counsel for the petitioner seemed to have reported that the 3rd respondent is not able to stop the 4th respondent from making construction. This Court directed the 3rd respondent to report about the stage of construction withina period of one week and the Commissioner of Police, Vijayawada was directed to give effect to the earlier order of this Court dated 13-5-1997. In the counter filed by the 3rd respondent as well as the Commissioner of Police it is stated that the respondents completed the construction of ground floor and also the first floor, except the flooring and white washing and the respondent also let out the shops in the ground floor.
24. From the report said to have been sent by the Municipal Commissioner to the Assistant Registrar which is available in his file, it is stated as under:
'I submit that the 4th respondent Rqfiq Hasan, son of Quamruddin has constructed a building with ground floor, fist floor which was completed, except some finishing works in the first floor. He also stated that the shops in the ground floor were let out and the shops in the first floor were not occupied.
25. In the counter he also stated that as the construction was not in accordance with the ordinary regulations, he also served a notice on 4-7-1997 to stop further construction as the same is in violation of the orders of the High Court as well as the zoning regulations.
26. From the photographs filed in the Court, it is seen now that even the first floor was painted with some colours and it is ready for occupation. From this it is evident that though permission was given on 19-3-1985 by the Vijayawada Urban Development Authority pursuant to the relaxation orders given by the Government in G.O. Rt. No.199 MA, dated 8-2-1985 which was in force for one week and any construction that can be made by the 4th respondent is only between 19-3-1985 to 27-3-1985, as this Court has put him on notice that any construction made by him in violation of the zoning regulations will be at his own risk. It is not as if the respondentand his relatives are illiterates. They are highly qualified and his father is a retired Deputy Director of Medical and Health Department. While he himself is a Doctor, working in Gulf. So any prudent person having respect for law and faith in the administration of justice would not have and ought not have made any constructions prior to 19-3-1985 and after 27-3-1985. Even assuming for a moment that the respondent has taken the risk of loosing the case and proceeded with the construction, he would not have proceeded with the construction of the building after prohibitory injunction was granted by this Court on 27-3-1985. I have also extracted the events that have taken place from time to time between 1984 to till this day and it is any one's imagination how the respondent completed the construction of the building.
27. Now the question that falls for consideration of this Court would be whether this Court has to give its seal of approval for preparation of the illegal action of the respondent in constructing the building in violation of the orders of this Court and without an approved plan, leave apart the building laws.
28. Now the learned Counsel for the respondent strenuously contend that his client constructed the building as per the building laws and tries to impress upon the Court on this aspect by showing the map drawn by the Advocate-Commissioner to show that his client left sufficient steps for set-off and as such the Court may not make any vindictive action and a sympathetic attitude may be taken, and the illegality committed by the 4th respondent may be permitted to be regularised under G.O. Ms. No.784 MA, dated 24-8-1987 by collecting the compounding fee rather than pulling down the building. I am unable to appreciate the argument of the learned Counsel for the respondent for the reason that the said GO is applicable to cases where the ownerscompleted construction by deviating from the approved plan by indulging in minor violations of the building bye-laws. But here is a case where there is neither any approved plan for taking up construction nor the respondent complied with the orders issued by this Court from time to time. In fact from the narration of the events, I have already held that the respondent went ahead with the construction as and when possible for him to grease the machinery which utterly failed in discharge of its statutory duty. Even today it is not the case of the respondent that he filed any plan seeking approval for constructions of the building, nor filed any application for regularising the illegal construction if such a course is permissible in law. The respondent No.7 while in the witness box categorically admitted that after completion of the building, they never informed the Municipal Corporation. From this it is seen that the respondent without informing the Municipal Corporation about the completion of the building and getting it assessed to Municipal tax even went to the extent of letting out the premises on lease and even evaded payment of tax while enjoying the fruits of the illegal construction.
29. Coming to the other contention of the learned Counsel for the respondents that the building was constructed as per the building bye-laws, it was never the case of the respondent either before this Court or in the lower Court. After amendment of the plaint, in the additional written statement filed by respondent No.4, in which he categorically stated 'It is only in accordance with G.O. Rt. No.199 MA, dated 8-2-1985. The Municipal Corporation and Urban Development Authority granted the permission to build as per the sanctioned plan. The defendant accordingly proceeded with the construction in his site and completed the same. 'At some other place he stated that', as the construction of the building by the defendant was over by1985, it is quite in accordance with the sanctioned plan and it is not for the plaintiff herein to question the same. 'At some other place he stated that' the defendant made his construction in accordance with the sanctioned plan and that there were no orders restraining such construction.
30. In the witness box, also the respondent in his cross-examination categorically admitted 'My brother completed the work according to the plan Ex.X1 which is the plan submitted by my brother'. This plan is no other than the plan which was approved by the Urban Development Authority pursuant to the relaxation given by the Government and after the High Court declared the GO as illegal, the respondent cannot rely upon the plan approved by the Urban Development Authority under the orders of the Government. For the first time while addressing the argument, the Counsel for the respondent raised this plea. It is rather difficult to believe that the respondent made the construction in accordance with the building bye-laws.
31. Nextly it is contended by the respondent that the Government validated all the legal constructions prior to September, 1987 in G.O. Ms. No.784 MA, dated 24-8-1987. The respondent constructed the building prior to that order and hence the construction made by him should be treated as valid and the relief sought for by the petitioners cannot be granted.
32. I have gone through the GO it is an amendment to zonal regulations for Vijayawada, Guntur and Tenali issued in G.O. Ms. No.958 MA, dated 16-12-1969. Under Regulation 4 power of the Government to exempt zoning regulations, the Government introduced sub-clauses (1) and (2) and to the effect is, that after September, 1987, no applications or representations for grant of regularisationshall be entertained. Hence it cannot be contended by the respondent that under the GO the illegal constructions made till then were made legal. This is nothing but misinterpretation of the GO. Hence I do not find any merit in this contention also. In fact by virtue of this GO the respondents cannot even file an application seeking regularisation of the illegal construction after September, 1987.
33. Now the question is as to what relief the petitioner is entitled to. I feel that there are no extenuating circumstances in this case for not giving the relief of demolition of the building, more so, as the 4th respondent and his relatives resorted to make illegal construction in the teeth of the orders passed by this Court leave apart the building bye-laws of the Corporation. Further for various reasons, the people in this country developed a tendency to violate the law with impunity and a feeling entered into their minds that the Courts of law are incompetent in punishing the violators of law and they cannot enforce law. Further from the counter of the 3rd respondent, the Municipal Corporation, it is seen that an officer of the IAS rank started supporting the 4th respondent by stating that the construction by the 4th respondent is not coming in the way of others, in the teeth of the orders of this Court striking down the relaxation given under the GO and also the injunction orders granted by this Court. Whatever may be the reasons, had the petitioner was not after the 4th respondent by filing successive writ petitions and suits, the 4th respondent would have escaped from the clutches of law and I do not know whether he would have paid the Municipal tax, as the building cannot be assessed to tax without an approved plan. Further after September, 1987, no application for regularisation of any illegal construction can even be entertained. Keeping the totality of the circumstances in this case, I have no option, except directing the officialrespondents to demolish the building constructed on the suit schedule premises without an approved plan and in contravention of the building bye-laws apart from violating the orders of the Court. I am fortified in my view by various judgments of the Supreme Court. The first one K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and others, : [1975]1SCR680 . In this case the Town Municipal Council, Udipi permitted the Kalyana Mandapam-cum-Lecture Hall for exhibiting Cinemtographic films under Madras Places of Public Resorts Act 1988. Their Lordships of the Supreme Court held that 'the right to build on one's own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. The Municipality acts for the public benefit while enforcing the building bye-laws for the construction of the building within the Municipality. If the Municipality acts in excess of the powers conferred by the Act, or abuse those powers, then in those cases it is not exercising its jurisdiction irregularly or wrongly, but it is usurping powers which it does not possess. If the Municipality goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts'.
34. With regard to the building illegally constructed their Lordships observed inparas 28 and 29 of the judgment.
Para-28. 'An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of thelocality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that, a scheme in a residential area means planned order lines in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases'.
Para-29. 'The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal constructions'.
35. In Pratibha Co-operative Housing Society Ltd. and another v. State of Maharashtra and others, : [1991]2SCR745a , with regard to illegal constructions, their Lordships of the Supreme Court in para 6 held as follows:
'It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed out by Mr. K.K. Singh, learned Counsel for the Corporation that the tendency of raising unlawful construction by the builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities. We are also of the view that the tendency of raising unlawful constructions andunauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multi storied buildings. The violation of FSI in the present case was not a minor one but was to an extent of more than 24,000 sq.ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right up to this Court. The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated 13th November, 1990'.
36. In M.I, Builders Private Limited v. Radhey Shyam Sahu and others, : [1999]3SCR1066 , their Lordships of the Supreme Court held that the permission granted by Mahapalika for construction of underground shopping complex in the place earmarked for park is violative of obligatory duty cast by Section 114 of UP. Municipal Corporation Adhinlyam (2 of 1959) on Mahapalika to maintain parks and also violative of public trust doctrine'.
37. With regard to unauthorised constructions made already, their Lordships observed that 'the discretion that vested in the Court cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. Further it was held as follows:
'This Court in numerous decision has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering rule of law'... Their Lordships further held thatjudicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles'.
38. On the facts of the case, their Lordships of the Supreme Court observedas under:
'the builder got an interim order from this Court and on the strength of that order get sanction of the plan from the Mahapalika and no objection from the LDA and the builder completed 80% of the construction. The Court posed a question as to why the builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it;
39. Ultimately their Lordships, opined that there is no alternative, except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking. While moulding the relief their Lordships of the Apex Court has also taken the unauthorised constructions that are taking place all over the country and observed that:
'Number of cases coming to this Court pointing to unauthorised constructions taking place at many places in the country by builders in connivance with the Corporation/Municipal Officials. In the series of cases, this Court has directed demolition of unauthorised constructions. This does not appear to have any salutary effect in cases of unauthorised construction coming to this Court. Whiledirecting demolition of unauthorised construction, Court should also direct enquiry as to how the unauthorised construction came about and to bring the offenders to book. It is not enough to direct demolition of unauthorised construction, where there is clear defiance of law in the present case'.
40. In Consumer Action Group v. State of Tamilnadu, (2000) SCC 425, a Constitution Bench of the Supreme Court observed that sixty two orders granting exemption were issued by Government within 6 months in a arbitrary manner in violation of the Tamilnadu Town and Country Planning Act, 1971 (35 of 1972). In para 37 of the judgment, their Lordships held:
'Mere reading of this reveals administrative failure, regulatory inefficiency and laxity on the part of the authorities concerned being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and within staring eyes the Government feels helpless to let it pass; as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing the illegalities, which are writ large, no administrative action of demolition of such large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal, what not? Are the consequences of such illegal constructions not laid down? Does the statute not provide for controlleddevelopment of cities and rural lands in the interest of the welfare of the people to cater to public convenience, safety, health etc? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public. Before such pattern becomes cancerous and spreads to all parts of this country, it is high time that remedial measure was taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the laches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of the public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks etc. Such a pattern retards development, jeopardizes all purposeful plans of any city, and liquidates the expenditure incurred in such development process'.
41. In Cantonment Board Jabalpur and others v. S.N. Awasthi and others, 1995 Supp (4) SCC 595, their Lordships of the Supreme Court held that:
'since the condition precedent or prior sanction of Defence Estate Officer under sub-section (3) of Section 181 of the Cantonment Act, 1924 (as amended by Act 16 of 1983) had not been obtained, the sanction for construction of the house granted by the Cantonment Board was perse illegal.
42. In Pleasant Stay Hotel and another v. Palani Hills Conservative Council and another, : (1995)6SCC127 , the appellant having obtained sanction for construction of two storied building has in fact constructed six floors and submitted a revised plan. Subsequently, the Government of Tamilnaduexempted from violation of the rules and the High Court set aside the exemption orders by holding that the order passed is arbitrary one and vitiated by non-application of mind and is in violation of Section 3 of Tamilnadu Act 52 of 1994 and directed demolition of the unauthorised constructions. Their Lordships declined to interfere with the order of the High Court and confirmed the same.
43. Following the dicta laid down in the above decisions of the Supreme Court, I direct the official respondents to demolish the building in premises No.11-40-2, situated at Pulipativari Street, Vijayawada as expeditiously as possible at any rate with in two months from the date of receipt of the order.
44. Before parting with the case, I would like to observe that very often the people in this country are taking law into their hands and therefore, now a time has come to make the people know that no one is above the law and they cannot violate the law as they wish. I feel that the Government should hold an enquiry into the entire episode as to how the two storeyed building came up in a commercial area in the midst of Vijayawada Town without any approved plan and the persons responsible for this surreptitious act have to be punished by initiating disciplinary action against them.
45. The writ petition is accordingly allowed with exemplary cost. Advocate's fee is Rs.5,000/-.
46. The appellant, having aggrieved by the judgment and decree of the Principal District Munsif, Vijayawada, passed in OS No.430/1985, dated 2-9-1996, filed AS No.52/1996 on the file of the Senior Civil Judge, Vijayawada, and this Court in exercise of its powers under Section 24 of CPC withdrew the appeal and heard the arguments in the appeal along with the writ petition.
47. Today, I delivered judgment in WPNo.10604/1997 directing demolition of the building in the premises bearing No.11-40-2 situated at Pulipativari Street, Vijayawada Town. As stated supra, the same relief was sought for in the AS No.52 of 1996. Hence, in the light of the orders passed in the writ petition, this appeal can be disposed of stating that no further orders are needed. To be more specific on the issues cropped in the appeal, this judgment is being rendered.
48. The District Munsif, having noticed that the very G.O. Rt. No.199, MA, dated 8-2-1985 granting relaxation of the Zonal Regulations was set aside and the building was constructed without any plan, dismissed the suit holding that the plaintiff failed to adduce any evidence snowing that the construction of particular portion of the building by the defendant is hazardous to himself or to the public in general, except showing that the constructions are resting on his wall without knowing the effect of the judgment. The learned Junior Civil Judge further observed that demolition of a building is a last resort, if otherwise it cannot be legalised.
49. The real issue in the suit after amending the pleadings is whether the building alleged to have been constructed in violation of zonal regulations and without any approved plan, has to be demolished or not. But unfortunately, the learned District Munsif proceeded on the assumption that the illegal construction made by the 4th respondent did not result in any personal injury to the petitioner and dismissed the suit. I need not extract the pleadings and the evidence recorded by the learned District Munsif as he has proceeded under an erroneous presumption that no personal injury is caused to the petitioner. The building bye-laws are framed by the Government for the convenience of all the residents in the municipal area in order to ensure proper ventilation and sanitationfor the rate payers, possible and adequate means of preventing spread of fire from one building to another. Therefore, the residents of the vicinity have a right to insist the Governmental authorities to adhere to the rules framed under the bye-laws for their welfare. The municipal authorities owe a duty and an obligation under the statute to see that the rights of the residents in an area are not invaded by illegal constructions made by the other neighbouring residents.
50. In K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and others, : [1975]1SCR680 , some of the residents of Udipi Town questioned the action of the municipality in permitting the Municipal Council Hall for exhibiting cinema autography films for public entertainment. On the issue of locus standi, the Hon'ble Supreme Court held that the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by illegal construction. Hence they are entitled to maintain a writ petition. It is useful to extract the relevant portion, thus:
'An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality theCourts will quash orders passed by Municipalities in such cases.The Court enforces the performance of statutory duty by public bodies as obligation to ratepayers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. The special and substantial interest to the residents in the area is injured by the illegal construction'.
51. In Bhagwan Das v. Harish Thetwal, (CRP No.4660 of 1982), a Division Bench of this Court held thus:
'An individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complied of, is certainly clothed with a right to invoke the jurisdiction of a civil Court not only to enforce the obligations and duties cast on the concerned authorities but also subject the individual or class of individuals to conform to the obligations of the statute. It would be competent for the neighbour, and admittedly, the petitioner herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions and to seek a direction against an individual, plaintiff herein to conform to the obligation laid in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. Therefore, the petitioners are 'proper parties' if not necessary parties in order to effectually adjudicate upon the question involved in the suit'.
52. In Bangalore Medical Trust v. B.S. Muddappa, : [1991]3SCR102 , the Government of Karnataka converted thepublic park and allotted the same to the Bangalore Medical Trust for construction of a private nursing home. The said action of the Government was questioned by the residents of the locality. In para 29 of the judgment, their Lordships while dealing with the locus standi of the residents held as follows:
'The residents of the locality are the persons intimately, vitally and adversely affected by any action of the BDA and the Government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. The residents of the locality such as the writ petitioners, are naturally aggrieved by the impugned orders and they have therefore the necessary locus standi'.
53. Justice Sahai in a separate but concurrent judgment held thus:
'Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke enquiry jurisdiction of the High Court. In fact, public-spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury.'
54. From the above, it is seen that when the interests of residents of a locality Iare adversely affected by an illegal construction made by the neighbouring residents and such construction interferes with their right to enjoyment of free air, light and health and being aggrieved by the action of the authorities in permitting such construction, they can challenge such action in a Court of law and, therefore, they are having locus standi to question such action. Unfortunately, the learned District Munsif, having noticed that the construction was not in accordance with the building bye-laws and having taken note of the orders of this Court quashing relaxation granted by the Court, failed to visualise the consequences that will flow from that order and examined the issue only from the point of view of the individual concerned than considering the issue from the point of public injury. Hence the judgment and decree of the Court below cannot be sustained in law and it is accordingly set aside.
55. As stated supra, the relief sought for in this suit was already granted in WP No.10604 of 1997, and therefore the first appeal is closed, as no further orders as required.