[A.P. Municipal Corporation Act] Authorities Cannot Direct Demolition Of Construction By Only Passing Order In Printed Format: A.P. HC

While issuing a writ of mandamus to the Respondents to take back the impugned order, the Andhra Pradesh High Court recently held that the concerned authorities cannot issue an order for directing demolition of a construction only by passing the order in the printed format, rather it should be a reasoned one after considering the reply filed to the show cause notice.

The Single Judge Bench of Justice Ravi Nath Tilhari while acknowledging the purpose behind Article 300-A of the Constitution, observed that, “Right to Property is recognized as a human right. It’s a right guaranteed by the Constitution of India as well under Article 300-A, not to be deprived of it save by authority of law. Orders of demolition/removal of the one’s property, in the manner, like the one, as in the present case, cannot be sustained as it would deprive the person of his constitutional right to property not in accordance with law.”

Advocate Chalasani Venkaiah appeared for the Petitioner, whereas Advocate G. Naresh Kumar appeared for the Respondents.

In the background of the case, the Petitioner has sought a writ of mandamus against the confirmation order by Municipal Commissioner (second Respondent) under which action is ordered against alleged unauthorized construction conducted by the Petitioners. It is submitted by the Petitioner that their father had purchased the house in 1985 and the Petitioners constructed ground floor with slab and first floor only after obtaining sanctioned plan from second Respondent in 2006. Repair work was conducted by the petitioner on the wall of first floor recently, against which the neighbors (fourth Respondent) filed a writ which was disposed of while directing second Respondent for taking steps to demolish unauthorized construction. Show cause was issued to the Petitioner to which he filed a reply, however, by finding it insufficient the second Respondent issued provisional order under Sections 452(1) and 461(1) and other provisions of the statute. Hence, present petition.

After considering the submission, the High Court observed that the impugned order for demolition was issued without application of mind.

“Passing an order on the printed proforma, does not comply with the requirements of statutory provisions nor with the principles of natural justice. The order is not to be passed mechanically, just signing the printed format. There should be consideration of the reply to the show cause notice and assigning the reasons”, added the High Court.

Examining Section 433, 452 and 461 of the 1955 Act, the Bench observed that the Act provides for opportunity of hearing the person against whom action of removal is to be taken and only after consideration of reply, the Commissioner can take a decision.

However, “merely saying that the reply given is not satisfactory, is not sufficient. It’s no consideration at all, the Court said”, added the Bench.

Referring to the judgment of S. N. Chandrashekar and another vs. State of Karnataka and others [(2006) 3 SCC 208] wherein the Apex Court had held that it is well known that the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate, the Bench directed all Municipal Corporations through their authorities, that no order will be passed on the printed format by the Municipal Authorities under Sections 452 & 461 of the Municipal Corporation Act.

Hence, the petition was partly allowed and second Respondent was directed to pass fresh orders in accordance with law.

Cause Title: Ille Ratna Prasad v. State of Andhra Pradesh and Ors.

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