Minor Violations In Construction Of Building Which Do Not Affect Public At Large Can Be Considered To Be Regularised: Andhra Pradesh High Court

"Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations...Reasons facilitate the process of judicial review by superior courts."

Brief Facts of the case

The writ petition has been filed under Article 226 of the Indian Constitution. The petitioner submitted that pursuant to his application, the 2nd respondent granted building permission for construction of G+5 floors. Subsequently, the 2nd Respondent issued a provisional order/notice giving details of deviations/violations from the sanctioned plan and granted time to petitioner to submit reply.

Contentions of Both Sides

The counsel for petitioner P. Rajasekhar submitted that the reply stated that due to some 'Vastu' complaints there was some deviation in the construction and requested that as per regularisation scheme, the petitioner was willing to pay for regularisation of such deviations. The petitioner submitted that though the petitioner filed reply to the provisional show cause notice but in the impugned order it was incorrectly mentioned in the first paragraph that the petitioner did not submit any reply to the show cause notice and in the last paragraph it was mentioned that the reply given was not satisfactory. Thus, the impugned order contained contradictory statements. It was contended that the petitioner's reply was not considered and the order merely stated that the reply given was not satisfactory.

G. Naresh Kumar, counsel for respondent, submitted that the scheme for regularisation of deviations was not prevalent for petitioner's violations.

Ruling of the Court

Justice Justice Ravi Nath Tilhari held that as far as the deviations in the constructions of building was considered, it being a question of fact, as to nether within the permissible percentage to be regularised or not or affecting public at large or not could not be adjudicated in exercise of writ jurisdiction.

The Full Bench of AP High Court in ACES Hyderabad v. Municipal Corporation of Hyderabad (1994) issued certain guidelines to the Corporations that in cases where deviations or violations are minor, trivial or minimal, which do not affect public at large, the Corporation must not resort to demolition.

In the present case, Justice Ravi Nath Tilhari observed from the impugned order that the Corporation has not considered the aforementioned factors whether the deviations are trivial or cause public nuisance. The petitioner's case for regularisation has not been considered at all.

Furthermore, the Court also observed that the impugned order contained contradictions on the point of submission of the reply by the petitioner. It had been stated in first paragraph that reply was not given but contradictory to that in the second paragraph it had been stated that reply given was not satisfactory. No reasons were provided as to in what respect and as to how it was contrary to what rules.

The Court relied on Poonamchand v. Greater Hyderabad Municipal Corporation (2012), it was held by AP High Court that explanation offered by the owner of the building cannot be rejected with a cryptic observation and has to be considered by the Corporation.

Similarly in K. Ashok Kumar v. Greater Hyderabad Municipal Corporation (2012), it was held as: The expressions "found not satisfactory" are reflective of the conclusion, but not the reason. As to why the explanation offered by the petitioners is not satisfactory, forms part of their process of reasoning.

In view of the above, the impugned order did not assign any cogent reasons for not accepting the explanation submitted by petitioner/owner and the same was consideration at all. Therefore, the Writ Petition was allowed and the impugned order was quashed due to no consideration.

Case Title: E.V. Rama Rao v. The State of Andhra Pradesh, Revenue