i. Venkat Rao Vs. Municipal Corporation of Warangal and Another - Court Judgment

Excerpt:
property - writ - article 226 of constitution of india - petition filed against alleged unjustified encroachment by petitioner's neighbor - allegation made that building regulations not followed - relevant particulars basing claim not cited - petition not sustainable as alternative remedy of seeking benefit under civil court available. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - however, it is alleged that the second respondent in utter violation of the plan as well as the zoning regulations extended the construction towards north where allegedly the petitioner's property is situated. it is well settled that a neighbour who is aggrieved by the construction allegedly in contravention of the building plan has no locus standi to question the same in a public law remedy. if the neighbour is aggrieved with reference to the depriation of corporeal rights as well as incorporeal rights -deprivation of property, violation of right to privacy etc. this court under article 226 of the constitution decides the matters based on affidavits and it is well neigh impossible to dwell into questions of fact which are in serious dispute. however, it is not clearly shown nor an attempt is made either in the affidavit or at the bar to project that the government orders are in contravention of the building bye-laws or zoning regulations.order1. the petitioner is a resident of warangal town. he is aggrieved by the proceedings of the first respondent in roc.no.g2/uc/13358/96, dated 4-5-1998. apart from not being able to satisfactorily explain the delay in approaching the court assailing the order passed about one year ago, the petitioner has chosen a wrong remedy in a wrong forum. the petitioner should be non-suited as the writ petition is a frivolous and vexatious one. these introductory remarks are not without any justification. as the case unfolds as hereunder, these remarks would be justified.2. the second respondent is unfortunately the neighbour of the petitioner. he obtained a building permission under municipal corporation act on 26-5-1993. according to the petitioner, the permit is for raising ground floor residential structure. however, it is alleged that the second respondent in utter violation of the plan as well as the zoning regulations extended the construction towards north where allegedly the petitioner's property is situated. the construction was completed and according to the petitioner the officials of the first respondent are in collusion with the second respondent and hence they did not take any coercive steps to stop the construction made by the second respondent. this, according to the petitioner, has caused loss in more ways than one, especially by loss of his property. therefore, as a vigilant citizen he invoked the jurisdiction of the special tribunal constituted under the andhra pradesh land grabbing (prohibition) act by filing lgc no.ll of 1993 on the file ofthe court of the district judge, warangal, which is pending. the petitioner also approached the civil court by filing a suit being os no.651 of 1993 on the file of the court of the ii additional junior civil judge, warangal seeking the relief of mandatory injunction and other reliefs which the petitioner has intentionally withheld from this court. be that as it may, the petitioner also approached this court by filing a writ petition under article 226 of the constitution of india being writ petition no.7546 of 1995. the writ petition was admitted and in the miscellaneous application being wpmp no.9322 of 1995, this court passed the following order on 18-4-1995:'interim direction to the first respondent to take appropriate action against the second respondent in case he has made any construction in contravention of any statutory provisions or permissions accorded to him.'3. according to the petitioner, inspite of the directions issued by this court read above, the municipal authorities did not take any action and allowed the second respondent to complete the construction of first floor. therefore, he invoked the contempt jurisdiction of this court. after filing of contempt case no.396 of 1995, the first respondent issued a notice to the second respondent. challenging the said notice which purports to be under section 636 of the hyderabad muncipal corporation act, 1965 ('the act' for brevity) (which is made applicable by way of incorporation under the andhra pradesh muncipal corporations act, 1993), the second respondent approached the civil court by filing os no.513 of 1995 seeking permanent injunction against the municipal corporation. after filing the suit, the second respondent also filed an application mw mp no.2798 of 1995 to vacate the interim orders dated 18-4-1995. this court, by order dated 13-12-1995 modified the order dated 18-4-1995 directing that after the injunction order obtained by the second respondent against the first respondent is vacated, the municipal corporation has to take action in accordance with the orders of this court dated 18-4-1995 extracted above.4. according to the petitioner, the second respondent withdrew the suit on 31-7-1998. in the meanwhile, the second respondent by an application dated 2-5-1998 approached the first respondent seeking the benefit of two government orders in g.o. ms. no.44, dated 4-2-1997 and g.o. ms. no.232, dated 16-9-1997 whereunder the government of andhra pradesh introduced a building regularisation scheme for the purpose of regularising the contraventions and deviations which occurred in the building construction all over the state.5. the first respondent after considering the application of the secondrespondent issued the impugned proceedings on 4-5-1998. this is assailed before this court mainly on the ground that the impugned order does not subserve public interest. it is also submitted that the two government orders cannot override the building bye-laws and zoning regulations and, therefore, any orders that may be passed by the government under the two orders should also substantially comply with building bye-laws and zoning regulations.6. i have heard the learned counsel for the petitioner, sri bankatlal mandhani. he vehemently contended that as held by this court in om prakash gupta v. state of andhra pradesh, 1997 (2) ald 115, any member of a public can approach this court under article 226 of the constitution and seek appropriate reliefs. it is well settled that a neighbour who is aggrieved by the construction allegedly in contravention of the building plan has no locus standi to question the same in a public law remedy. if the neighbour is aggrieved with reference to the depriation of corporeal rights as well as incorporeal rights - deprivation of property, violation of right to privacy etc., the only remedy is by way of a civil suit for declaration of easementary rights and consequential injunction. the reasons are two. in either way, whether a person is deprived of the property due to the encroachment or a person's right to privacy is violated by virtue of illegal constructions preventing free light and air into the house; these are matters for elaborate evidence. this court under article 226 of the constitution decides the matters based on affidavits and it is well neigh impossible to dwell into questions of fact which are in serious dispute. therefore, the judgment of this court relied on by sri mandhani which categorically states that the right of the public to approach the court under article 226 is acceded, cannot be extended where a private person is aggrieved by the actions of another private person that too when no proper material is placed before the court that the construction made is grossly subverting the public interest. as held by the supreme court in rajatha enterprises v. s.k. sharma, : [1989]1scr457 , all illegal constructions need not be demolished. the acid test to be applied is whether illegal constructions if any grossly subvert public interest and grossly contrary to the public interest. in the said case, the supreme court even regularised huge extent of floor space which was admittedly contrary to fsi regulations. in this connection, it is useful to extract the following passage from the above judgment:'......in the absence of any evidence ofpublic safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the 1st respondent, the high court was not justified, at the instance of the 1st respondent claiming himself to be a champion of the public cause, in ordering the demolition of any part of the building, particularly when there is no evidence whatsoever of dishonesty or fruad or negligence on the part of the builder. see the principles stated by sabyasachi mukharji, j. in ramsharan autyanuprasi v. union of india, : air1989sc549 , and by khalid, j., in sachidanand pandey v. state of west bengal, (1987) 2 scc 295 = air 1987 sci 109.'7. therefore, the contention of the petitioner that he can approach this court under article 226 of the constitution is devoid of any merits.8. nextly it is contended that the petitioner by inadvertently has not placed some other material before this court and, therefore, he should be given an opportunity to place the entire material before this court.this is one other aspect by which the petitioner should be non-suited at the threshold under a public law remedy. every person invoking the court's power of judicial review under article 226 is under obligation to file affidavits which are not vague, to annex all the documents which support every averment made in the affidavit and specifically mention the statutory instrument or rules by which an enforceable right exists in the petitioner or an enforceable duty exists on the respondents. with all the averments but without the essential ones, a writ petition cannot be entertained. writ petition is not a matter of course. it is subject to various conditions to be complied with as contained in writ proceedings rules, 1977. admittedly, the petitioner has not placed any material before this court. for this reason also, the writ petition is liable to be dismissed.9. lastly, the contention of sri mandhani that the inaction on the part of the first respondent is contrary and in violation of the order of this court dated 18-4-1995 modified by subsequent order dated 13-12-1995 is stated only to be rejected. this court categorically directed the first respondent to take appropriate action against the second respondent in case he has made any construction in contravention of statutory provisions. the impugned order is issued imposing a penal amount of rs.20,000/- and the construction made by the second respondent is regularised. this order, in my considered view, is in accordance with the orders passed by this court earlier. the other submission that the two government orders empowering the municipal authorities to regularise the constructions in contravention of the building permits should also satisfy the building bye-laws and zoning regulations is without any basis. under section 678-e of the act, the government is competent to issue guidelines, to give such directions to the corporations for carrying out the purpose of the act. however, these guidelines should be in conformity with the provisions of the act and the rules. there is no dispute on this. however, it is not clearly shown nor an attempt is made either in the affidavit or at the bar to project that the government orders are in contravention of the building bye-laws or zoning regulations.10. for these reasons, the writ petition fails and it is accordingly dismissed at theadmission stage.

Judgment:
ORDER

1. The petitioner is a resident of Warangal town. He is aggrieved by the proceedings of the first respondent in Roc.No.G2/UC/13358/96, dated 4-5-1998. Apart from not being able to satisfactorily explain the delay in approaching the Court assailing the order passed about one year ago, the petitioner has chosen a wrong remedy in a wrong forum. The petitioner should be non-suited as the writ petition is a frivolous and vexatious one. These introductory remarks are not without any justification. As the case unfolds as hereunder, these remarks would be justified.

2. The second respondent is unfortunately the neighbour of the petitioner. He obtained a building permission under Municipal Corporation Act on 26-5-1993. According to the petitioner, the permit is for raising ground floor residential structure. However, it is alleged that the second respondent in utter violation of the plan as well as the zoning regulations extended the construction towards north where allegedly the petitioner's property is situated. The construction was completed and according to the petitioner the officials of the first respondent are in collusion with the second respondent and hence they did not take any coercive steps to stop the construction made by the second respondent. This, according to the petitioner, has caused loss in more ways than one, especially by loss of his property. Therefore, as a vigilant citizen he invoked the jurisdiction of the Special Tribunal constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act by filing LGC No.ll of 1993 on the file ofthe Court of the District Judge, Warangal, which is pending. The petitioner also approached the civil Court by filing a suit being OS No.651 of 1993 on the file of the Court of the II Additional Junior Civil Judge, Warangal seeking the relief of mandatory injunction and other reliefs which the petitioner has intentionally withheld from this Court. Be that as it may, the petitioner also approached this Court by filing a writ petition under Article 226 of the Constitution of India being Writ Petition No.7546 of 1995. The writ petition was admitted and in the miscellaneous application being WPMP No.9322 of 1995, this Court passed the following order on 18-4-1995:

'Interim direction to the first respondent to take appropriate action against the second respondent in case he has made any construction in contravention of any statutory provisions or permissions accorded to him.'

3. According to the petitioner, inspite of the directions issued by this Court read above, the Municipal authorities did not take any action and allowed the second respondent to complete the construction of first floor. Therefore, he invoked the contempt jurisdiction of this Court. After filing of Contempt Case No.396 of 1995, the first respondent issued a notice to the second respondent. Challenging the said notice which purports to be under Section 636 of the Hyderabad Muncipal Corporation Act, 1965 ('the Act' for brevity) (which is made applicable by way of incorporation under the Andhra Pradesh Muncipal Corporations Act, 1993), the second respondent approached the civil Court by filing OS No.513 of 1995 seeking permanent injunction against the Municipal Corporation. After filing the suit, the second respondent also filed an application MW MP No.2798 of 1995 to vacate the interim orders dated 18-4-1995. This Court, by order dated 13-12-1995 modified the order dated 18-4-1995 directing that after the injunction order obtained by the second respondent against the first respondent is vacated, the Municipal Corporation has to take action in accordance with the orders of this Court dated 18-4-1995 extracted above.

4. According to the petitioner, the second respondent withdrew the suit on 31-7-1998. In the meanwhile, the second respondent by an application dated 2-5-1998 approached the first respondent seeking the benefit of two Government Orders in G.O. Ms. No.44, dated 4-2-1997 and G.O. Ms. No.232, dated 16-9-1997 whereunder the Government of Andhra pradesh introduced a building regularisation scheme for the purpose of regularising the contraventions and deviations which occurred in the building construction all over the State.

5. The first respondent after considering the application of the secondrespondent issued the impugned proceedings on 4-5-1998. This is assailed before this Court mainly on the ground that the impugned order does not subserve public interest. It is also submitted that the two Government Orders cannot override the building bye-laws and zoning regulations and, therefore, any orders that may be passed by the Government under the two orders should also substantially comply with building bye-laws and zoning regulations.

6. I have heard the learned Counsel for the petitioner, Sri Bankatlal Mandhani. He vehemently contended that as held by this Court in Om Prakash Gupta v. State of Andhra Pradesh, 1997 (2) ALD 115, any member of a public can approach this Court under Article 226 of the Constitution and seek appropriate reliefs. It is well settled that a neighbour who is aggrieved by the construction allegedly in contravention of the building plan has no locus standi to question the same in a public law remedy. If the neighbour is aggrieved with reference to the depriation of corporeal rights as well as incorporeal rights - deprivation of property, violation of right to privacy etc., the only remedy is by way of a civil suit for declaration of easementary rights and consequential injunction. The reasons are two. In either way, whether a person is deprived of the property due to the encroachment or a person's right to privacy is violated by virtue of illegal constructions preventing free light and air into the house; these are matters for elaborate evidence. This Court under Article 226 of the Constitution decides the matters based on affidavits and it is well neigh impossible to dwell into questions of fact which are in serious dispute. Therefore, the judgment of this Court relied on by Sri Mandhani which categorically states that the right of the public to approach the Court under Article 226 is acceded, cannot be extended where a private person is aggrieved by the actions of another private person that too when no proper material is placed before the Court that the construction made is grossly subverting the public interest. As held by the Supreme Court in Rajatha Enterprises v. S.K. Sharma, : [1989]1SCR457 , all illegal constructions need not be demolished. The acid test to be applied is whether illegal constructions if any grossly subvert public interest and grossly contrary to the public interest. In the said case, the Supreme Court even regularised huge extent of floor space which was admittedly contrary to FSI Regulations. In this connection, it is useful to extract the following passage from the above judgment:

'......in the absence of any evidence ofpublic safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the 1st respondent, the High Court was not justified, at the instance of the 1st respondent claiming himself to be a champion of the public cause, in ordering the demolition of any part of the building, particularly when there is no evidence whatsoever of dishonesty or fruad or negligence on the part of the builder. See the principles stated by Sabyasachi Mukharji, J. in Ramsharan Autyanuprasi v. Union of India, : AIR1989SC549 , and by Khalid, J., in Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295 = AIR 1987 SCI 109.'

7. Therefore, the contention of the petitioner that he can approach this Court under Article 226 of the Constitution is devoid of any merits.

8. Nextly it is contended that the petitioner by inadvertently has not placed some other material before this Court and, therefore, he should be given an opportunity to place the entire material before this Court.This is one other aspect by which the petitioner should be non-suited at the threshold under a public law remedy. Every person invoking the Court's power of judicial review under Article 226 is under obligation to file affidavits which are not vague, to annex all the documents which support every averment made in the affidavit and specifically mention the statutory instrument or rules by which an enforceable right exists in the petitioner or an enforceable duty exists on the respondents. With all the averments but without the essential ones, a writ petition cannot be entertained. Writ petition is not a matter of course. It is subject to various conditions to be complied with as contained in Writ Proceedings Rules, 1977. Admittedly, the petitioner has not placed any material before this Court. For this reason also, the writ petition is liable to be dismissed.

9. Lastly, the contention of Sri Mandhani that the inaction on the part of the first respondent is contrary and in violation of the order of this Court dated 18-4-1995 modified by subsequent order dated 13-12-1995 is stated only to be rejected. This Court categorically directed the first respondent to take appropriate action against the second respondent in case he has made any construction in contravention of statutory provisions. The impugned order is issued imposing a penal amount of Rs.20,000/- and the construction made by the second respondent is regularised. This order, in my considered view, is in accordance with the orders passed by this Court earlier. The other submission that the two Government Orders empowering the Municipal authorities to regularise the constructions in contravention of the building permits should also satisfy the building bye-laws and zoning regulations is without any basis. Under Section 678-E of the Act, the Government is competent to issue guidelines, to give such directions to the Corporations for carrying out the purpose of the Act. However, these guidelines should be in conformity with the provisions of the Act and the Rules. There is no dispute on this. However, it is not clearly shown nor an attempt is made either in the affidavit or at the Bar to project that the Government Orders are in contravention of the building bye-laws or zoning regulations.

10. For these reasons, the writ petition fails and it is accordingly dismissed at theadmission stage.