AI Insights
The case involves two writ petitions challenging the regularization of unauthorized constructions and the grant of building permission for additional floors in a nursing home located in a residential zone of Karimnagar. The petitioners argued that the constructions violated the A.P. Revised Common Building Rules, 2008, and the master plan of Karimnagar. The court examined the legal provisions under the A.P. Fire Service Act, 1999, and the National Building Code of India, along with the specific zoning regulations of Karimnagar. The court concluded that the constructions complied with the legal requirements and that the appellate committee's decision was not biased, leading to the dismissal of the petitions.
Appeal Details
Counselvise Citation
[2013] 140 COUNSELVISE.COM (IT) 727478 (HC-ANDHRA_PRADESH)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
30-04-2013
Assessment Year
misc
Judgement Text
" THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NOS.27542 OF 2009 AND 10204 OF 2011 COMMON ORDER As the issues involved in both the writ petitions are interlinked and the parties are common, the writ petitions are being disposed of by this common order. 2. The unofficial respondents 3 to 5 purchased the plot in an extent of 629 sq. mtrs. situate at Christian Colony, Karimnagar in the year 2000 under registered sale deed and obtained permission from the 1st respondent – Municipal Corporation Karimnagar, represented by its Commissioner, under proceedings No. BA/60/G2/340/2002 dated 10-5-2002 for construction of the building G + 2 floors with plinth area of 191.75 sq. meters for hospital and 124.33 meters for residential purpose in each floor over the said plot area of 629.96 mtrs. The said construction was allotted house No.3-1-395, Christian Colony, Karimnagar. As there were deviations from the sanctioned plan, they filed application for regularization of such deviations under G.O.Ms.No.901 MA & UD (M1) Department dated 31.12.2007. The 1st respondent – Commissioner, by proceedings No.137/14/2008/KNC dated 29-07-2009, regularized the deviations. The unofficial respondents made application for building permission for construction of 3rd and 4th floors on the existing house bearing no.3-1-395, Christian Colony, Karimnagar. The 1st respondent by proceedings No.G2/558/09 dated 6-11-2009 granted permission for construction of 3rd and 4th floors. Aggrieved by the said permission, W.P.No.27542/2009 has been filed, to declare the proceedings dated 6.11.2009 issued by the 1st respondent as illegal, arbitrary, without authority of law and contrary to the A.P. Revised Common Building Rules, 2008. 3. This court while ordering notice before admission on 17.12.2009, ordered that “Pending further orders, it is directed that in case the construction of the third and fourth floors has not been commenced by respondents 3 and 4, status quo obtaining as on today shall be maintained till that time.” Subsequently, by interim order dated 31.12.2009, this court passed the following order: “the respondents have filed a counter-affidavit. The matter can be disposed of at the admission stage. Post immediately after vacation. The order of status quo passed by this Court on 17.12.2009 shall remain in force until further orders.” 4. The docket proceedings reveals that the unofficial respondents filed WVMP.No.4398/2009 seeking to vacate the interim order granted by this court. On 13.9.2011, the learned counsel for the petitioner and the respondents advanced their submissions and for further arguments, the matter was adjourned. Subsequently, on 21.9.2011, for want of instructions, the learned counsel appearing for the unofficial respondents sought adjournment and submitted that in obedience to the interim order, his clients have not started any construction even though they have obtained building permission. The matter was adjourned to 13.10.2011 and thereafter, it underwent several adjournments from time to time. In the meanwhile, the petitioners filed the other writ petition in W.P.No.10204/2011. 5. As noted above, the deviations of the unofficial respondents were regularized by the 1st respondent by proceedings dated 29.7.2009. Challenging the regularization proceedings dated 29.7.2009, the petitioners filed appeal No.898/2011/A1 under Rule 11 of Andhra Pradesh Regulation and Penalization of Unauthorizedly constructed buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007 (for short 2007 Rules’), which rules were made under G.O.Ms.No.901. By order dated 10.03.2011 in Appeal No.898/2011/A1, the Regional Director – cum – Appellate Commissioner and Chairman of the Appellate Committee, dismissed the appeal. Aggrieved by the order of dismissal, the W.P.No.10204/2011 has been filed to declare the proceedings dated 10.3.2011 as illegal, unreasonable, without jurisdiction and contrary to the provisions of the 2007 Rules, the Rules made under National Building Code of India and Articles 14 and 21 of the Constitution of India. 6. On 28.3.2012, both the writ petitioners were heard together at the stage of admission. 7. Since the 1st writ petition in W.P.No.27542/2009 has been filed challenging the proceedings dated 6.11.2009 issued by the 1st respondent therein in granting permission to the unofficial respondents 3 to 5 to construct 3rd and 4th floors and the 2nd writ petition in W.P.No.10204/2011 has been filed challenging the proceedings 10.3.2011 of the 1st respondent therein in dismissing the appeal filed by the petitioners, the contentions raised by the petitioners, official respondents and unofficial respondents, in both the writ petitions, are being dealt with simultaneously. 8. The case of the petitioners, as per the averments made in the affidavit filed in support of the writ petition in W.P.No.10204/2011, is that they are the owner of the house bearing No.3-1-396, Christian Colony, Karimnagar and the same is a residential house. The said house was constructed more than forty years back and is situated in between Ambedkar Chowk, where the statue of Dr. Ambedkar is erected, and civil hospital cross road of Karimnagar Town. According to the master plan for Karimnagar Town, either side of the said road is earmarked as residential zone. The respondents 3 to 5 purchased an open plot next to the house of the petitioners towards Ambedkar Chowk in the year 2000. They have obtained municipal permission in the year 2002 bearing proceedings No.BA/60/G2/340/2002 dated 10-05-2002 for construction of residential house. The respondents 3 to 5 constructed a cellar, ground plus 2 floors and started running a nursing home illegally. The said respondents constructed large area over and above the sanctioned area, but however, the 2nd respondent – Municipal Corporation, did not take any action in the matter, except being a mute spectator. At present, the respondents 3 to 5 are running a nursing home with 51 beds under the name of M/s Venkateshwara Nursing Home. Under 2007 Rules, the respondents 3 to 5 filed an application dated 9-5-2008 before the 2nd respondent for regularization of the illegally constructed area. The 2nd respondent i.e., the Commissioner, Municipal Corporation, Karimnagar, issued proceedings No.137/14/2008/KNR 29-7-2009 regularizing residential area of 6122 sq. fts and nursing home area of 9,027 sq. fts. illegally constructed in premises bearing H.No.3-1-395, Christian Colony, Karimnagar under 2007 Rules. The petitioners being neighbouring owners, filed appeal before the 1st respondent – authority against the proceedings dated 29-7- 2009 passed by the 2nd respondent – Municipal Corporation, regularizing illegally constructed area contrary to the rules on various grounds. The grievance of the petitioners is that the 1st respondent without considering the grounds raised by them, rejected the appeal. Hence, the writ petition in W.P.No.10204/2011. The unofficial respondents were also granted permission for construction of 3rd and 4th floors. Aggrieved by the same, W.P.No.27542/2009 has been filed on the ground that the said permission is contrary to the A.P. Revised Common Building Rules, 2008. 9. The learned counsel appearing for the petitioners in both the writ petitions contended that as per the notification by the Government under G.O.Ms.No.760, Housing Municipal Administration and Urban Development, 22nd September, 1983, applicable to Karimnagar Municipality, under 3.1. which is a residential zone, nursing home is not permissible. It is contended that as per the dictionary meaning of ‘nursing home’, it is an establishment where persons suffering from illness, injury or infirmity whether of body or mind are usually received and accommodated for the purpose of nursing and treatment. But in the present case, the unofficial respondents are running a super-specialty hospital in residential zone, which is having 50 beds strength and is enrolled as network hospital for Rajiv Aarogyasri Scheme and the same is contrary to the land use under Town Planning Scheme of Karimnagar Municipality under G.O.Ms.No.760. Further under revised building rules, health facilities with not more than 20 beds are only permissible in residential zone as provided in Annexure-I of the said building Rules and hence regularizing the deviations contrary to the land use and in granting permission for construction for 3rd and 4th floors, is illegal and contrary to the building rules. 10. It is further contended that the major portion of the building is being utilized for hospital and for construction of any building in a plot of above 500 and up to 750 sq. meters, set back of 6 meters in front and 3.5 meters on the remaining sides is required under Rule 7.1 (i) of Table II and balcony projections is also not allowed to extend on the minimum set backs and in the present case, there are no set backs. 11. The further contention of the learned counsel for the petitioners is that under Section 13 of A.P. Fire Service Act, 1999 for construction of building of public congregation like Nursing Home with a height of 6 meters and above in a plot area of more than 500 sq. meters, a ‘No Objection Certificate’ (NOC), from the Director General or any member of the service duly authorized, is required. The building approving authority shall not accord approval except on production of NOC. In the present case, no NOC from the competent authority is obtained. It is contended that the hospital is having more than 50 beds and there are no set backs and in case of fire accidents, there will not be any space for fire engine to move and it would adversely affect the inpatients. Therefore, the learned counsel contended that as there is no prior clearance from the competent authority under Section 13 of the A.P. Fire Services Act, 1999 and as the building is not in conformity with the land use approved in the Master Plan Zonal Development Plan, the deviations cannot be regularized under G.O.Ms.No.901 MA & UD (M1) Dept dated 31.12.2007 and the leaner counsel referred to Rules 4 and 9 in G.O.Ms.No.901, in support of their contentions. 12. The learned counsel contended that the unofficial respondents are using the subject building for a hospital of more than 50 beds and the same could be regularized only in case the requirements of area required for a hospital is fulfilled as per the existing rules. The National Buildings Code of India is applicable for all the buildings not specifically covered by the existing building rules in force with regard to land area requirement. The requirement of plot size of a hospital is not covered by the existing building rules and the same is governed by the National Buildings Code of India. As per Section 5.5.2 of the National Buildings Code of India, the minimum area required for a hospital of 50 beds and more, is one hectare. The subject building is constructed in an area of less then 1000 sq. meters and hence the illegal construction cannot be regularized contrary to the minimum plot area prescribed in the National Buildings Code of India. 13. The learned counsel further contended that the Floor Area Ratio (F.A.R.), required under the rules published in G.O.Ms.No.422 & UD (M-1) (M.A.) dated 31.7.1998 as amended by G.O.Ms.No.669 dated 6.9.2007 and G.O.Ms.No.737 dated 3-10-2007, for buildings located on the side of road over 18 meters width is 1.75 and maximum height permissible for the building is 15 meters. In the instant case, the plot area is 629.96 sq. mts. The maximum F.A.R. permissible under the rules is 629.96 x 1.75, which comes to about 1102.43 sq meters. The floor area already constructed is 1648.46 sq. mts, which works out to F.A.R. 2.61, which is already more than the permissible construction. The further permission granted for 3rd and 4th floors is 445.5 sq. mts. Thus the total construction would be 2093.96. The F.A.R. then works out to 3.32. The earlier construction itself was contrary to Rule 2 of G.O.Ms.No.422 dated 31.7.1998 and hence the present permission of 3rd and 4th floors further violated the said F.A.R. Rules and hence not permissible under the law. 14. The learned counsel appearing for the petitioners contended that since the unofficial respondents are running hospital under the guise of nursing home in residential area, contrary to the land use in town planning scheme and also made deviations of the sanctioned plan and no setbacks as required under the rules were maintained and thereby they are affecting the public interest and public safety and hence even under G.O.Ms.No.901 Rule 9(i), such buildings cannot be regularized. In support of their contentions that buildings constructed in violation of the building regulations and master plan and zonal development and Floor Area Ratio, and further causing hardship to the public and endangering public safety and public interest cannot be regularized, the learned counsel relied on the judgments reported in SHANTI SPORTS CLUB v. UNION OF INDIA[1], FRIENDS COLONY DEVELOPOMENT COMMITTEE v. STATE OF ORISSA[2], STATE OF RAJASTHAN v. H.V. HOTELS (P) LTD.[3], S.N.CHANDRASHEKAR v. STATE O F KARNATAKA[4], MUNICIPAL CORPN. SHIMLA v. PREMLATA SOOD[5] and R.K.MITTAL v. STATE OF U.P.[6] 15. The learned counsel appearing for the petitioners submitted that the deviations made by the unofficial respondents contrary to the sanctioned plan, were regularized by the 2nd respondent – Municipal Corporation, represented by its Commissioner, through proceedings dated 27.9.2009. Aggrieved by the same, the petitioners filed appeal before the 1st respondent - authority, under Rule 11 of 2007 Rules. The Commissioner, who regularized the deviations, is one of the members of the 1st respondent – appellate committee and hence, he cannot sit in appeal over the orders passed by him and this amounts to violation of the principles of natural justice and it is against the well settled principle that ‘a person cannot be a judge in his own case’ and if it is allowed, there will be an element of bias hence the impugned order is liable to be set aside on this ground alone. It is contended that justice should not only be done, but seems to be done. In support of these contention, the learned counsel relied on the judgments reported in CANTONMENT EXECUTIVE OFFI ER v. VIJAY D. WANI[7], AMAR NATH CHOWDHURY v. BRAITHWAITE & CO. LTD. [8] , INSTITUTE OF CHARTERED ACCOUNTANTS v. L.K. RATNA [9] , ELECTION COMMISSION OF INDIA v. DR. SUBRAMANIAM SWAMY [10] , S.PARTHASARATHI v. STATE OF A.P. [11] , J. MOHAPATRA AND CO. v. STATE OF ORISSA[12], P.D.DINAKARAN (1) v. JUDGES INQUIRY COMMITTEE[13], NOIDA ENTERPRENEURS ASSN. v. NOIDA[14], A.U. KURESHI v. HIGH COURT OF GUJARAT[15], MOHD. YUNUS KHAN v. STATE OF U.P.[16], S.MAHESWAR RAO v. STATE OF ORISSA[17], ASHOK KUMAR YADAV v. STATE OF HARYANA[18] and S.P. KAPOOR v. STATE OF H.P.[19]. 16. The learned counsel appearing for the petitioners contended that the petitioners are the neighbouring owners of the nursing home, to which permissions were granted contrary to the rules, and it is causing lot of inconvenience, since people are gathering there and it is causing air pollution in the locality. Hence, he sought for cancellation of the permission granted to 3rd and 4th floors and set aside the regularization proceedings with regard to cellar, ground + two floors and remove the illegal deviations. 17. One R.Sambasiva Rao, s/o Venkateshwarlu, the Regional Director – cum – Appellate Commissioner, Municipal Administration for 1st respondent filed counter affidavit in W.P.No.10204 of 2011. In the counter affidavit it is stated that the building bearing no.3-1-395 was constructed duly obtaining permission from the 2nd respondent – Municipal Corporation, vide proceedings No.BA/60/G2/340/2002 dated 10-5-2002. As there are violations in constructions, respondents 3 to 5 applied for penalization and regularization under Building Penalization Scheme and the 2nd respondent has issued proceedings in Roc.No.137/14/2008/KNR dated 29-7-2009 penalizing and regulating the building after collecting the penal amount of Rs.71,700/- as per the orders of the Government vide G.O.Ms.No.901, MA & UD (M1) Dept. dated 31-12-2007. The petitioners filed an appeal before the Committee constituted under the G.O.Ms.No.395 M.A. dated 17-6-2009. The Committee in its meeting held on 18-1-2011 observed that the action of the 2nd respondent is in accordance with rules in force. Accordingly, the appeal was dismissed vide proceedings No.898/2011/A1 dated 16-3-2011. 18. It is further stated that the 2nd respondent accorded permission in favour of the respondents 3 to 5 for construction of Nursing Home and Residential building with ground, first and second floors vide proceedings in Roc.No.BA/60/G2/340/2002 dated 10.5.2002 and they have constructed the building for the purpose of residential and nursing home long back. The said site falls under residential use zone as per the sanctioned master plan of Karimnagar and the nursing home and residential buildings are permissible in residential use zone. It is true that the respondents 3 to 5 have constructed cellar, ground + two floors in the premises bearing no.3-1-395, out of which 6122.88 sq. fts. extent of area is used for residential and 9027.30 sq. fts of area is used for nursing home. 19. Respondents 3 to 5 have applied on 9-5-2008 for regularization of the building constructed in deviation to the sanctioned plan in the premises bearing H.No.3-1-395, Christian Colony situated at court to Government Hospital road, Karimnagar, Vavilalapally, Karimnagar Town, under the 2007 Rules. Accordingly, the 2nd respondent has issued proceedings Roc.No.137/14/2008/KNR, dated 29-7- 2009, regulating the residential area of 6122.88 sq. fts and nursing home area of 9027.30 sq. fts. Out of the total built up area as per the sanctioned plan, 4778.88 sq. fts is for residential and 7982.40 sq. ft is for nursing home and the extent of built up area in deviation to the sanctioned plan is 1344.00 sq. fts for residential and 1044.90 for nursing home. It is also a fact that the petitioners preferred appeal before the 1st respondent as per G.O.Ms.No.395 dt 17-6-2009 against the proceedings dated 29.7.2009 passed by the 2nd respondent. In the said Committee, the 1st respondent is the Chairman and the Regional Deputy Director of Town and Country Planning, Warangal, Superintending Engineer (Public Health Circle), Warangal are the members of the Appellate Committee and the Municipal Commissioner, Municipal Corporation, Karimnagar is the Member (Convener). And the said appeal has been dismissed by the Appellate Committee vide its order in Roc.No.898/2011/A1, dated 10-3-2011, since the proceedings Roc.No.137/14/2008/Knr dated 29-7-2009 issued by the 2nd respondent was as per the zoning regulations of the Karimnagar Master Plan and in accordance with G.O.Ms.No.901 M.A. dated 31-12-2007. It is also a fact that it was noticed by the Committee that a shed was constructed encroaching the Public Road to an extent of 7 fts. In this connection, the Committee instructed the respondents 3 to 5 on 16-3-2011, to remove the said encroachment and immediately the respondents 3 to 5 have removed the encroachments as instructed by the Committee. In the further counter affidavit, the 1st respondent reproducing the grounds for rejection of the appeal, sought for dismissal of the writ petition. 20. The Commissioner of the 2nd respondent – Municipal Corporation Karimnagar, Mr. D.Amoy Kumar, filed counter affidavit in W.P.No.10204/2011. In the counter affidavit it is stated that it is true that the Appellate Authority passed orders in Appeal No.898/2011/A on 10-3-2011, but there is no illegality or irregularity committed by the appellate authority in passing the orders in the appeal preferred by the petitioners. It is true that the area where the petitioners and respondent nos.3 to 5 constructed houses, is coming under residential zone. It is true that the respondents 3 to 5 obtained municipal permission vide proceedings No.BA/60/G2/340/2002 dated 10.5.2002 from this respondent no.2 for construction of nursing home as well as residential house with G + 2 floors. The respondent nos. 3 to 5 also constructed the cellar floor and also made additional built up area as against the sanctioned plan and same has been regulated by this respondent no.2 vide proceeding no.137/14/2008/Knr dated 29.7.2009. It is not correct to say that this respondent didn’t take any action in the matter. It is true that the respondents are running M/s Venkateshwara Nursing Home in the said premises on the front side and respondent no.3 to 5 are also residing in the same building on the northern side portion. Respondents 3 to 5 filed application dated 9.5.2008 for regulation of unauthorizedly constructed area and this 2nd respondent regulated the additional residential built up area to the extent of 1344 sq. ft. and additional nursing home area to an extent of 1044.9 sq. ft vide proceeding no.137/14/2008/KNR dated 29.7.2009. The orders passed by 2nd respondent regulating the building constructed by the respondents 3 to 5 is as per rules and not contrary to the provisions of 2007 Rules. The appellate authority i.e., the respondent no.1 herein, passed orders dated 10-3- 2011 rejecting the appeal preferred by the petitioners questioning the regulation of building belonging to respondent nos.3 to 5. It is true that this 2nd respondent is one of the members convener of the 1st respondent committee and participated in the proceedings while deciding the appeal filed by the petitioners. The respondent no.2 is a member-convener of the 1st respondent appellate committee appointed by Government as per G.O.Ms.No.395 M.A. dated 17.6.2009. The petitioners have not challenged the said G.O. before any authority and the petitioners also never protested or objected during the enquiry made by the appellate committee. It is true that in the orders passed in appeal by the 1st respondent committee, it is found that the respondent nos.3 to 5 built one shed encroaching public road to the extent of 7.’0’ and there is direction to remove the same. As per the orders, respondent no.3 to 5 removed the 7. ‘0’ shed and informed the same to the 2nd respondent vide letter dated 30.3.2011. It is not correct to say that the respondents 3 to 5 have not removed the encroachment till today. The grounds raised against the orders passed by the 1st respondent committee are not correct and untenable in law. The contention that the 2nd respondent is part of the committee which decided the appeal, cannot be a judge in his own case is not correct. The 2nd respondent is a member - convenor, but he did not decide the appeal as stated. The 2nd respondent is made as member because his presence is required to review the orders passed by him before the appellate committee during the enquiry. Moreover, the petitioners have not challenged the constitution of committee by the Government. The presence of the respondent no.2 in the committee did not influence the 1st respondent – appellate committee in any manner in passing orders dated 10-3- 2011. It is stated that there is no requirement to maintain certain set backs while regulating the building as per the G.O.Ms.No.901 M.A. dated 31.12.2007. It is not correct to say that the building requires the front set back of 4.5 mts. and 3 mts or ¼ of the height of the building whichever is more for side set backs in considering the building regulation as per the said G.O. It is further stated that it is not mandatory to produce No Objection Certificate from the fire services department at the time of regulation of the building of the respondent nos.3 to 5, since the height of the building is less than 15 mts. The orders regulating the building of the respondents 3 to 5 is not contrary to any rules under A.P. Fire Service Act and Rules. It is stated that the contention of the writ petitioner that as per the master plan, the notified land use for the subject building is residential and therefore, the regulation orders of illegally constructed area for use of hospital is contrary to Rule 9(i) is not correct. The construction of nursing home and residential building is permissible in residential land use as per zoning regulation of Karimnagar Town. The building constructed by respondent nos.3 to 5 is for use of nursing home cum residential building as per the office records. Hence, the contention of the petitioners that the requirements of the hospital are not fulfilled, cannot be accepted. With these averments, the writ petition was sought to be dismissed. 21. One Yemineni Satyanarayana, s/o Sambasiva Rao, Commissioner, Municipal Corporation, Karimnagar, filed counter affidavit on behalf of the 1st respondent in W.P.No.27542/2009. In the counter affidavit it is stated that the permission was granted by this respondent vide proceedings No.G2/558/09 dated 6-11-2009 in favour of the respondents 3 and 4 for construction of 3rd and 4th floors over the existing house bearing no.3-1-395 in accordance with building rules and zoning regulations by exercising the powers conferred under the law and by following the provisions therein. It is true that either side of the Civil Hospital road from Ambedkar Chowk, is earmarked as residential zone as per sanctioned (master plan) GTP No.2/97 of Karimnagar Town. The allegation of the writ petitioners that this respondent has granted the permission for construction of nursing home in violation of Rule 6.B4 (iv) of A.P. Revised Building Rules, 2008, is not correct. As per the said rule all the buildings shall be constructed in conformity with the zoning regulations. As per zoning regulations within the jurisdiction of the Karimnagar town, permission can be accorded for nursing home in residential zone under rule 3(1) of zoning regulations and the local authorities are competent to grant permission. 22. It is stated that unofficial respondents herein have obtained the permission for construction of the building G + 2 floors with plinth area of 191.75 sq. meters for hospital and 124.33 meters for residential in each floor over a plot area of 629.96 mts. under the proceedings No.GF2/340/02 dated 10-2-2002 from this respondent. While constructing the building the unofficial respondents have deviated the sanctioned permission including construction of the cellar. It is pertinent to mention here that this respondent accorded the permission by following rules under G.O.Ms.No.422 M.A dated 31.7.1998. As per the said rules, the unofficial respondents have to maintain set backs as 4.5 mts on front side and 3.0 mts. on rear side (east), 2.25 mts. on (west). The cellar has to be used for the purpose of parking and there should not be any construction in the cellar. Whereas the unofficial respondents deviated the set backs and proceeded with the construction including the cellar for the purpose of parking. After knowing the same, this respondent have initiated proceedings against the unofficial respondents, then they have filed an application for regularization of the deviations in construction against the sanctioned plan in the prescribed form under the provisions of G.O.Ms.No.395 M.A. dated 17.6.2005. This respondent having collected the penalization amount and on physical enquiry regularized the said deviations by issuing proceedings No.137/14/2008/KNC dated 29-7-2009. 23. It is further stated that the unofficial respondents have submitted their application seeking permission for construction of 3rd and 4th floors over the existing building. This respondent has taken note that the set backs which were violated by the unofficial respondents was already regularized as per G.O.Ms.No.395 M.A. dated 17.6.2005 and for consideration of the sanctioning of the permission for 3rd and 4th floors, this respondents verified the feasibility for grant of such construction permission over the existing building. The A. P. Revised Common Building Rules 2008 were issued under G.O.Ms.No.302 dated 15.4.2008 and Rule 6(ii) provides that: “In case of existing buildings approved prior to these rules further additions of floors on the earlier permitted buildings may be considered either as per these rules or the then rules in force in respect of set backs, which ever the applicant opts for. This will not apply for building extensions or redevelopment ventures on such sites.” It is submitted that since the permission sought for by the unofficial respondents is only with regard to construction of 3rd and 4th floors over the existing buildings, that too as per the then rules in force, this respondent considered the same under rule 3(i) of the then rules and granted the permission vide proceedings G2/558/2009 dated 6.11.2009, as such this respondent has not violated any of the provisions, as alleged in the petition. It is denied that the stair case of the unofficial respondents encroached upon the public road. 24. It is further stated that the nursing home / hospital, is classified institutional building and the height of the building is within the permissible limit of 15 mts. and as per Section 13 of A.P. Fire service Act, 1999, any person proposing to construct a building of more than 15 mts. house for commercial / business purpose and 18 mts. height and above for residential building and building of public congregation like schools, cinema halls, function halls, religious places which are more than 500 sq. metes of plot area or 6 meters and above in heights shall apply to the Director General or any member of the service duly authorized by him in his behalf before submission of such building plan to the authority or officer competent to approve the same under relevant law for the time being in force, No Objection Certificate, along with such fee as may be prescribed. Hence, the contention of the writ petitioner that No Objection Certificate from the authority concerned is required for the grant of permission of construction in favour of the unofficial respondents, is not tenable. In spite of that, the unofficial respondents have submitted provisional No Objection Certificate from the District Fire Officer vided letter dated 17.7.2009 and as such there is no irregularity in granting permission by this respondent. 25. It is stated that this respondent provided necessary information as sought by the writ petitioner under Right to Information Act, being a responsible officer and there is no truth in the allegation of the writ petitioners in this regard. Further, obtaining of legal opinion by the writ petitioners is not concerned to this respondent and it is not necessary to act as per the opinion obtained by the writ petitioners for cancellation of the permission granted in favour of the unofficial respondent by this respondent. The permission of construction of 3rd and 4th floors in favour of the unofficial respondents, clearly shows the set backs in front and rear sides maintained by the unofficial respondents and they are in conformity with the rules of revised building rules, 2008. The allegation of granting permission to the unofficial respondents will cost air pollution and nuisance in the area and locality where the writ petitioners are residing, is not correct. With these averments, the writ petition is sought to be dismissed. 26. The unofficial respondents, in both the writ petitions, filed counter affidavits with almost similar averments. Hence, for convenience sake, the averments made by the 3rd respondent in the counter affidavit filed in W.P.No.10204/2011 are being noted. In the counter affidavit while denying the writ averments, it is stated that the writ petition itself is not maintainable either in law or on facts, as there is no pleading with regard to existence of vested legal right in the writ petitioners as neighbours and infringement there of by these respondents. The respondent no.3 is a doctor by profession having completed MS and M.CH. after MBBS. He is a Genito Urinary Surgeon and has twelve years of experience. In the counter affidavit, the 3rd respondent also made allegations against the writ petitioners with regard to their building use. However, the same are not being referred to, as they are not required for resolving the issue involved in the writ petitions. It is stated that he along with his wife and mother purchased the subject property in or about 2002 and constructed building for the purpose of nursing home and for their residence and while making construction, certain minor deviations took place and such deviations neither affect the public or the neighbour, more particularly, the petitioners, who are his eastern side neighbours. It is stated that he made application for further construction and the same was granted after complying with all formalities by the respondent no.1 vide permit no.342/558/2009 dated 6.11.2009. Under 2007 Rules, they filed application before the respondent no.2 for regularization of deviations and the same were regularized after following the procedure and the petitioners filed appeal. In fact, the appeal itself is not maintainable, on the point of jurisdiction, under G.O.Ms.No.901 MA & uyd (M1) Department dated 1.12.2007. It is stated that the construction of ground + I floor + II floor were over by 2003, but the after a period of six years, the petitioners filed the present writ petition in the year 2009. With regard to the averment of the writ petitioners that the appeal proceedings are vitiated by bias and violation of principles of natural justice, since the Commissioner who regularized the deviations is part of the appellate committee, the unofficial raised the following averments: a) That the multi-member high power appellate committee is constituted under Rule 14 vide G.O.Ms.No.395 M.A. & UD dated 17.6.2009 to review the order of approving regularization. That the appellate committee in so far as the respondent no.2 is concerned, falling under Rule 5(B) (2) category, which comprises of: (i) Regional Deputy Director, Town Planning – Member. (ii) Regional Director, Municipal Administration – Member. (iii) Superintendent Engineer (Public Health) member, (iv) Municipal Commissioner – Member - Convener b) The jurisdiction of the appellate committee is defined as the appellate authority for reviewing the decisions of the competent authority which is provisional in nature if appeal is preferred under Rule 11 of Rules 2007, by the applicant / objector or a third party. c) It is submitted that in law when review is permissible by the same authority, it cannot be stated that it cannot be part of wider multi-member high power appellate committee examining the objections to review or reconsider the decision to regularize the deviations. That the office of Municipal Commissioner cannot be dispensed with, since it is only competent and authorized according to parent Act either to grant or reject permission for construction and carry out duties and functions in accordance with law, thereby it is a necessity to include it in the appellate committee. No quorum could function effectively in its absence as there is no other authority to fill in its place in the entire scheme of the Parent Act and hence it is authorized and obliged to hear the objections which are before the Appellate Committee for the first time. d) That the office of Municipal Commissioner has no conflicting interest with that of the applicant / Objector / third party. In the case on hand, there is no such pleading also. e) That the statutory office of Municipal Commissioner is made as member-convener of the appellate committee only with a view to be part of reviewing the order as to whether there was any suppression of facts contemplated under Rule 4 or Rule 9 of 2007 Rules i.e., G.O.Ms.No.901 MA & UD (M1) Department dated 1-12-2007. That the third party is entitled to raise objections before the appellate committee only to the extent of violations or criterion mentioned in Rules 4 and 9 of 2007 Rules. f) That the objections of the third party are heard for the first time by the appellate committee seeking review of decision to regularize the deviations. Those objections raised by the third party are not entertained by the competent authority at the time of passing orders under Rule 6. Thus there is exclusion of bias by the statute itself, is evident. g) That the Municipal Commissioner as a member of the appellate committee has not decided any of the objections raised by third party / writ petitioner at any point of time. h) That the discretion vested is as per law and within the four corners of 2007 Rules. i) That there is no violation of any of the principles of natural justice in the facts and circumstances of the case more particularly when the writ petitioners themselves had nothing in their mind while submitting themselves to the jurisdiction of the appellate committee. j) That the contention of bias is without any basis since the decision of the appellate committee is only as reviewing authority or in the nature of reconsideration of the order under Rule 6 passed by the Municipal Commissioner, who is designated as competent authority. k) That the likelihood of bias is excluded from the fact that neither the competent authority nor the appellate committed allowed any violation of Rules 4 and 9 of 2007 Rules. l) That the areas which fall within the encroachment and which are not regularized are directed to be removed itself is evidence of just decision of the appellate committee. m) That without challenging the rules constituting appellate authority, the writ petition is not maintainable on the plea of bias and is without any basis and devoid of merits. n) The objections for regularizing deviations made in 2003 cannot be entertained in the year 2009. The silence amounts to waiver or acquiescence on the part of the petitioner. 27. With the above grounds and justifying the orders of official respondents in regularizing the deviations and in dismissing the appeal and in granting building permission for construction of 3rd and 4th floors, the writ petitions were sought to be dismissed. 28. The petitioner filed reply affidavits to the counters filed by the official and unofficial respondents and denied the averments made in the counter affidavits. Since the averments made in the reply affidavits, were already noted while noting the case of the petitioners and the contentions on their behalf, they are not being reproduced. 29. The learned Government Pleader for Municipal Administration, Standing Counsel appearing for the Municipal Corporation, Karimnagar and the counsel appearing for the unofficial respondents, reiterating the averments made in their respective counter affidavits, sought for dismissal of the writ petition. 30. In view of the above rival contentions and the material on record, the issues that arises for my consideration are (1) Whether the appellate committee is justified in dismissing the appeal filed by the petitioners against the regularization proceedings of the competent authority - Commissioner? and (2) whether the competent authority – Commissioner is justified in granting permission to the unofficial respondents for construction of 3rd and 4th floor over the existing building, which was regularized? 31. With regard to first issue, the preliminary objection raised by the petitioners is that the Commissioner of the Municipal Corporation, Karimnagar, who passed the proceedings No.137/14/2008/KNR dated 29.7.2009 regularizing the deviations, is part of the committee, which decided the appeal and hence the same is vitiated by bias and hit by the principles of natural justice, since it is settled position that ‘no person can be a judge in his own case’. 32. In order to consider the above objection, it is necessary to note Sections 455-A and 455-AA of the Greater Hyderabad Municipal Corporation Act, 1955, G.O.Ms.No.901, MA & UD (M1) Dept dated 31.12.2007, and G.O.Ms.No.395, MA & UD (M1) Dept., dated 17.6.2009. In the Ordinance No.15 of 2007, the Government have amended the H.M.C. Act, 1955, A.P. Municipalities Act, Municipal Corporation Act and A.P. Urban Areas (Development) Act, 1975, duly authorizing the Municipal Commissioners/Vice Chairmen of all Urban Development Authority areas (in case of gram panchayats falling under Urban Development Authorities) to penalize the unauthorized constructions/deviations as a one time measure and consequently Government issued the 2007 Rules under G.O.Ms.No.901. Sections 455-A and 455-AA deal with the power of the Commissioner to regularize the unauthorized constructions and constructions made in deviations of the sanctioned plan, subject to certain conditions. Under 2007 Rules, Rule 6 deals with scrutiny, rejection and approval by the competent authority with regard to applications for penalization and Rule 11 deals with Appeal and subsequently the Government made amendments to 2007 Rules in G.O.Ms.No.901, by issuing G.O.Ms.No.395 dated 17.6.2009 and under this G.O., appellate committees were constituted. The said provisions, for better appreciation, are extracted as under: Greater Hyderabad Municipal Corporation Act, 1955 455-A. Regulation of Buildings constructed without sanctioned plan:- The Commissioner may regularize constructions made without obtaining sanctioned plan, subject to fulfilling the following conditions: (a) submission of building plans to the competent authority duly paying all categories of fee and charges; (b) the construction shall be subject to the condition that parameters laid down in the relevant statutes, Master Plan, Zonal Development Plan, Building Bye-Laws, Building Rules and other relevant Government Orders including Andhra Pradesh Fire Services Act, 1999 and National Building code are satisfied; (c) payment of penalty equivalent to thirty three percent (33%) of the various categories of fees and charges payable by the applicant for obtaining building permission in addition to the regular fee and other charges payable. 455-AA. Regulation and Penalization of construction of buildings in deviation of sanctioned plan:-- Notwithstanding anything in the Act, the Municipal Commissioner may regulate and penalize the constructions of buildings, made by the owners, or by an individual as the case may be, unauthorisedly or in deviation of the sanctioned plan as on the date of commencement of the Andhra Pradesh Municipal Laws and Urban Areas (Development) (second Amendment) Act, 2008 as a one time measure, as per the procedure and by levying such penal amount as may be prescribed and action of enforcement shall be deemed to have been withdrawn and the competent authority shall issue Occupancy Certificate to the owner or the individual as the case may be. G.O.Ms.No.901, MA & UD (M1) Dept dated 31.12.2007, 2. Definitions:-- (1). . . ( 2 ) “Competent Authority” means the Municipal Commissioner in case of areas falling in the Municipal Corporation and Municipal limits; the Vice Chairman of the Urban Development Authority in case of areas falling outside Municipal Corporation or Municipality in the Urban Development Authority area. (3). . . (4) “Unauthorized construction” means any building that has been construction in violation of the sanctioned building plan or without obtaining a building permission from the sanctioning authority. 6. Scrutiny, Rejection and Approval by the Competent Authority:- After receipt of the Application for Penalization in the prescribed Format along with required documents and plans, the Competent Authority shall scrutinize the applications and after carrying out necessary site inspections, communicate it’s approval or rejection to the applicant as early as possible but not beyond 13-12-2010 from the last date of receipt of Applications. The Competent Authority may engage the services of licensed technical personnel for scrutiny of the applications and for field inspections. Mere receipt of application or any delay in communication of final orders in the matter will not imply the approval of the applications. 11. Appeal:- (1) Any applicant / objector or a third party aggrieved by an order passed by the Competent Authority under Rule 6, may prefer an appeal to the Committee constituted by the Government within thirty days from the date of receipt of the order provided the applicant has paid all the necessary charges and submitted documents as specified in Rule 3 of these rules. G.O.Ms.No.395 dated 17.6.2009: 5. Constitution of Committees: Under Rule 14, issued vide G.O. 1st read above and in super session of G.O. 3rd read above, Government hereby constitute State Level Monitory Committee and Appellate Committee comprised with the following officials namely: (A) . . . (B) Appellate Committees: (1) (a) For GHMC Area:. . . (2) For other Municipal Corporations/Municipalities: (i) Regional Deputy Director, Town Planning – Member (ii) Regional Director, Municipal Administration – Chairman (iii) Superintending Engineer (Public Health) – Member (iv) Municipal Commissioner – Member – Convener. (3) Other UDAs: … The Appellate Committee is the appellate authority for reviewing the decisions of the competent authority and disposal of objections received under Rule 11. 3. All the Commissioners of Municipal Corporations / Municipalities and Vice-Chairmen’s of UDAs are requested to follow the above orders while disposing the applications received under Building Penalization Scheme. 33. From a reading of the above 2007 Rules, it could be seen that the rules are made to penalize the unauthorized constructions / deviations as one time measure. For regularization of unauthorized construction envisaged under Rule 2(4), application for penalization has to be made under Rule 6, which contemplates scrutiny, rejection and approval by the competent authority. At this stage, no provision is made for receiving objections from any thirty party and it is for the competent authority to scrutinize the applications by taking the services of licensed technical personnel. The appeal is provided under Rule 11. At this stage, opportunity is given to any applicant / objector or a third party to file appeal against the order passed by the Competent Authority under Rule 6, within thirty days from the date of receipt of the order, before the Committee constituted by the Government. Under G.O.Ms.No.395, Rule 5 deals with Constitution of Committees. Under sub rule 2 of Rule 5, appellate Committee, is provided, since the present Karimnagar Municipal Corporation comes under other Municipal Corporations, the said provisions is applicable. Under clause (2) of Rule 5(5), the Appellate Committee, consists (i) Regional Deputy Director, Town Planning – Member (ii) Regional Director, Municipal Administration – Chairman, (iii) Superintendent Engineer (Public Health) – Member and (iv) Municipal Commissioner – Member – Convener. The functions of the appellate authority are mentioned in the Rules, which are to the effect that the Appellate Committee is the appellate authority for reviewing the decisions of the competent authority and disposal of objections received under Rule 11. From this it is clear that the duty of the appellate authority, is to review the decisions taken by the competent authority and dispose of the objections received under Rule 11. It is to be conspicuously noticed that though the Appellate Committee is appellate authority, its duty is only to review the decision taken by the competent authority. Therefore, when the appellate authority is exercising the jurisdiction of review of the decision taken by the competent authority, the presence of such authority is necessary, since the competent authority is the authority who scrutinizes the application by carrying out the necessary site inspections by taking the services of licensed technical personnel. The Competent Authority is a fact finding authority. Therefore, when the decision taken by the competent authority is being reviewed by the appellate committee, his presence cannot be dispensed with. Hence, the Government rightly constituted appellate committee under G.O.Ms.No.395, by making him as a member – convener. Further under the parent Act also, the Commissioner is the competent authority to regularize the unauthorized constructions and the constructions made in deviation of the sanctioned plan, subject to certain conditions. Hence, his presence in the appellate committee, as a fact finding authority, cannot be dispensed with. 34. As already noted above, the power of the appellate committee, in the present case, is to review the decision taken by the competent authority under 2007 Rules and further even under the parent Act, the power is vested on the competent authority who is the Commissioner, to accord building permission on verification of facts. Further, either under the parent Act, or under the G.O.s., issued by the Government, nowhere, it is held that the competent authority shall not be the member of the appellate committee. When there is no such limitation, the contention that competent authority shall not be member of the appellate committee, cannot be countenanced. It is also to be noticed that there is no challenge to G.O.Ms.No.395 constituting the appellate committee and there are also no allegations of bias on the competent authority in the writ averments. 35. At this juncture, it is necessary to note down the facts and law laid down by the Apex Court in the decision reported in UNION OF INDIA v. VIPAN KUMAR JAIN [20] . The facts of this case reveal that on certain dates, the premises of the respondents therein was searched under Section 132 of the Income Tax Act, 1961 and the search party was headed by one Harinder Kumar, who has been appointed as the authorized office for the purpose of Section 132 of the Act by the Commissioner of Income Tax and subsequently when the assessments of the respondents were sought to be completed, the respondents filed writ petition not only questioning the search, but also assailing the authority of the assessing officer to carry out the assessments and the High Court though did not accept the challenge to the search, but quashed the assessments on the ground that the assessing officer was the same Harinder Kumar who conducted the search. Thus the High Court invoked the principle that a person could not be a judge in his own case. The Apex Court while setting the judgment of the High Court, held that when the provisions of the I.T. Act, 1961 do not impose limitation that the assessing office and the authorized officer conducting the search, cannot be same, the courts cannot read in limitations to the jurisdiction conferred by the statutes, in the absence of a challenge to the provisions itself when the language of the Act clearly allows for an ostensible violation of the principles of natural justice including the principle that a person cannot be a judge in his own case. The Apex Court further held that question of bias has to be decided on the facts of each case and where it is established that the assessing officer was involved or interested in his personal capacity in the outcome of assessment or the procedure for assessment, then it would be a good ground for setting aside the assessment order. The relevant contentions and the discussion to arrive at the above conclusions by the Apex Court, are extracted as under for better appreciation: 5. According to the appellants the decision of the High Court should not be sustained on the ground that the High Court had failed to take into account, the entire scheme of the Act and several provisions which permitted the assessing officer to discharge the functions of a fact-finding authority. Particular reference has been made to Sections 120, 124, 131(1), 132(8), 132(9), 133-A, 133-B and Section 142. It is pointed out that the High Court having expressly found that there were no mala fides attributed should not have interfered with what was a question of jurisdiction and discharge of statutory duties. The decision of the High Court, according to the appellants apart from their running contrary to the scheme of the Act, would amount to a limitation on the powers conferred statutorily on the assessing officer. The appellants contend that there is no “structural bias” in the sections of the Act and that in any event the appellants have not impugned any provision of the Act as being constitutionally invalid on the ground that it opposed the basic principles of natural justice. 6. In our view, this appeal must be allowed. The several sections which have been cited by the appellants would show that the assessing officer has, either directly or by virtue of his appointment or authorisation by a superior authority under the Act, been given the power of gathering information for the purposes of assessment. The mode of gathering such information may vary from the mere issuance of a notice under Section 142 to the more intrusive method of entry and search envisaged under Sections 133- A and 133-B and seizure under Section 132. The appellants are also correct in their submission that in the absence of any challenge to any of these provisions, it was not open to the High Court to have disabled the assessing officer from discharging his statutory functions. What the High Court has done is to read limitations into the Act and to qualify the jurisdiction of the assessing officer and the powers of the authorities empowered to appoint the assessing officer as an authorised officer under Section 132 without any foundation for such conclusion being laid in any manner whatsoever by the writ petitioners. 7. Apart from the absence of any challenge to the provisions of the Act relating to the jurisdiction of the assessing officer to carry out the search under Section 132, subject to his being appointed as an authorised officer thereunder, we are of the view that there is no question of imputing or presuming a bias where action is followed under the section. The assessing officer is required to assess the income on the basis of facts as found. Such finding may be through any of the provisions referred to above. The only limitation on his drawing a conclusion from the facts as found is the requirement of allowing the assessee an opportunity of explaining the material. Even though it could be said that in a sense since the assessing officer was acting on behalf of the Revenue, in discharging the functions as an assessing officer, he was a party to the dispute, nevertheless there is no presumption of bias in such a situation. As said in H.C. Narayanappa v. State of Mysore1, SCR at p. 753: “It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government.” 8. There is nothing inherently unconstitutional in permitting the assessing officer to gather the information and to assess the value of the information himself. The issue as to the constitutional validity of a provision which permitted an examining board not only to hold an inquiry but also to take action against doctors was raised before the Supreme Court of the United States in Harold Withrow v. Duane Larkin2. In negating the challenge the Court said: (US p. 47) “The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individual poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” 9. It is true that there may be cases where the outcome of the assessment may be influenced by the fact that the raiding assessing officer had himself in the course of the raid been witness to any incriminating material against the assessee. The assessing officer's decision on the basis of such material is not the final word in the matter. The assessment order is appealable under the provisions of the statute itself and ultimately by way of judicial review. 10. Finally, the courts cannot read in limitations to the jurisdiction conferred by statutes, in the absence of a challenge to the provision itself when the language of the Act clearly allows for an ostensible violation of the principles of natural justice including the principle that a person cannot be a judge in his own cause. In Union of India v. Tulsiram Patel3 in recognition of this principle this Court held: (SCC p. 479, para 101) “101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa4.” 11. The learned counsel also drew our attention to the fact that the assessments on the basis of material recovered under Section 132 had to be completed within a period of limitation prescribed under Sections 158-B and 158-E(1)(b). The last date for completion of the assessments in the present case was 31-10-2000. The prayer of the respondents for transfer of the case from the assessing officer on 11-10-2000 to a new assessing officer in the circumstances was unacceptable and the assessment by the said Harinder Kumar was unavoidable given the limited period left for completing the assessment proceedings. The High Court has observed that this plea had not been raised by the appellant. Perhaps the appellants are correct in submitting that the fact speaks for itself. However, it is not necessary for us to give any final view in the matter having held that the sections in the Act impose no limitation on the assessing officer or the authorised officer, being the same person, and that it could not be said that action taken pursuant to such statutory empowerment was coloured, only by reason thereof, by any bias. 12. Ultimately, the question of bias will have to be decided on the facts of each case. If the assessee is able to establish that the assessing officer was in fact biased in the sense that he was involved or interested in his personal capacity in the outcome of the assessment or the procedure for assessment, no doubt, it would be a good ground for setting aside the assessment order. But to hold, as the High Court has that bias is established only because the authorised officer under Section 132 and the assessing officer are the same person is, in our view, an incorrect approach. 36. Coming to the case on hand, as already noted above, under Sections 455-A and 455-AA of the Act, the Commissioner is the competent Commissioner to regularize the unauthorized constructions and constructions made in deviations of the sanctioned plan, subject to certain conditions. The Government floated the penalization scheme for regularization of unauthorized constructions and constructions made in deviation of the sanctioned plan, as a one time measure and under the scheme envisaged under G.O.Ms.No.901, Rule 6 empowers the Commissioner, who is the competent authority, to scrutinize the applications and to either reject or approve the applications for penalization and under Rule 11, opportunity is provided to the third parties to file objections before the appellate authority and under G.O.M.No.395 appellate committee is constituted for reviewing the decisions taken by the competent authority and either under the parent Act or under the 2007 rules, there is no prohibition that the competent authority shall not be a member of the appellate committee, which is conferred with review jurisdiction and there is no challenge to the appellate committee, to which the competent authority is only a member – convener. Therefore, when there are no such limitations, this court cannot take exception to the appellate committee, to which the competent authority is only a member – convener. 37. Further, there cannot be any dispute, as laid down in the decisions relied on by the counsel for the petitioners that a person cannot be a judge in his own case, but the said principles cannot be made applicable in a straitjacket formula to the facts of the present case, and in view of the exceptional facts and circumstances, discussed above, the law laid down in the judgment of the Apex Court (20 supra), applies to the facts of the present case in all fours. Hence, the contention of the learned counsel for the petitioners based on the principle that ‘no person can be judge in his own case’, cannot be made applicable to the facts of the present case and the said contention is hereby rejected. 38. The next grievance of the petitioner is that the unofficial respondents have not maintained the set backs and violated the floor area ratio and are running the nursing home with more than 50 beds in residential zone and in fact, it cannot be treated as nursing home and it is a super specialty hospital and allowing the same in the residential zone amounts to violation of the land use under the master plan and zonal development plan and further, though the height of the building exceeds 6 mts., no prior clearance is obtained from Fire Services Department, by producing any ‘No objection Certificate’ and hence the same affects the public interest and safety and hence cannot be regularized by collecting the penal amount and though these grounds were raised in the appeal, the appellate committee without considering these objections, rejected the appeal and the same is liable to be set aside and consequently the building permission granted to 3rd and 4th floors, is also liable to be set aside. 39. To meet the above contentions, it is necessary to note relevant provisions under G.O.Ms.No.901; General Town Planning Scheme of Karimnagar Municipality under G.O.Ms.No.760, Housing, Municipal Administration and Urban Development dated 22.09.1983 and A.P. Fire Services Act, 1999. 40. As already noted above, the Government in exercise of powers conferred by Section 455AA of the Hyderabad Municipal Corporation Act, 1955, Section 218(A) of the A.P. Municipalities Act, 1965, Section 46(A) of the AP Urban Areas (Development) Act, 1975 made the 2007 Rules under G.O.Ms.No.901. These rules provide for penalization of unauthorized constructions/deviations, as a one time measure. Further, these rules made the penalization of unauthorized constructions/deviations compulsory under Rule 3. Relevant portions under Rules 4 and 9, G.O.Ms.No.760 and A.P. Fire Services Act, 1999 are necessary to be extracted as under; 4. Prior clearance from other Authorities/Departments in certain cases: (1) In the following cases, prior clearance shall be ensured by the Competent Authority before considering the application under these Rules: (a) In respect of cases of residential buildings 18 m and above in height, Commercial buildings 15 mts. and above in height, and buildings of public congregation like schools, Cinema theatres, function halls and other assembly buildings on plot area of 500 sq. mts., and above or of height above 6 mts as stipulated in Section 13 of the Andhra Pradesh Fire Service Act, 1999 from Fire Services Department. 3.1.4 of National Building Code of India part of 4 fire and life safety. (b) From Airport Authority of India wherever applicable. (c) For all buildings, irrespective of its height, necessary certificate of structural safety compliance of the said building shall be submitted from a licensed structural Engineer. (2) . . . 9. Penalization not to apply to certain sites:-- Penalization of unauthorized constructions shall not be considered in the following cases and in cases where public interest and public safety are likely to be adversely affected viz.: . . . (i) Buildings that are not in conformity with land use approved in Master Plan Zonal Development Plan; Andhra Pradesh Fire Services Act, 1999 Section 13. Issue of no objection certificate:-- (1) Any person proposing to construct a high-rise building or a building proposed to be used for any purpose other than residential purpose, or a building proposed to be used for residential purpose of more than 15 meters in height such as group housing, multi-storey flats, work-up apartments, etc., shall apply to the Director General or any member of the service duly authorized by him in this behalf, before submission of such building plans to the authority or officer competent to approve the same under the relevant law, for the time being in force, for a no objection certificate along with such fee as may be prescribed. (2) . . . (3) . . . (4) . . . General Town Planning Scheme of Karimnagar Municipality under G.O.Ms.No.760 dated 22.9.1983. Appendix XII (Zoning Regulations) 2.12 Institutional Buildings:-- These shall include any building or part thereof which is used for the purposes such as Medical or other treatment, or care of persons suffering from physical or mental illness, disease or infirmity, care of infants, convalescents or aged persons and for penal or correctional detention in which the liberty of the inmates is restricted. Institutional buildings ordinarily provide sleeping accommodation for the occupants. It includes hospitals, sanitoria, custodial institutions and penal institutions like jails, prisons, mental hospitals and reformatories. 3. Uses permissible in various land use zones: …. 3.0.1 The following regulations specify uses that are permissible in the normal course, uses that may be permitted on appeal to the competent authority through the Municipal Council and uses that are prohibited entirely in each use zone in the Planning area. These regulations shall guide the grant or refusal of the permission and shall be enforceable by the Municipal Council. 3.1 Residential Zone: (1) Uses permissible by the local authority: Dwelling, Detached, Semi-detached tenements, flats, dispensaries, community hall, post office, Police Station, fire station, electric sub-station, nursing home, schools offering general education courses, playgrounds and play fields, libraries, gardens, plant nurseries and customary homes occupations are cottage and other industries upt 3 H.P. as given in Annexure iii, public conveniences, swimming pools, boarding houses, bachelor quarters, clubs and cultural and philanthropic associations of non-commercial nature, professional establishments satisfying the requirements of the home occupations, bus-stands, poultry keeping for domestic use subject to a limit of 20 birds and ration shop. 41. A reading of the above provisions would show that for penalization of unauthorized construction/deviations, under Rule 4, if the buildings of public congregation like schools, cinema theatres, function halls and other assembly buildings on plot area of 500 sq. mts. and above or of height above 6 mts. as stipulated in Section 13 of A.P. Fire Services Act, 1999, prior clearance from Fire Services Department is necessary and that under Rule 9(i) the buildings that are not in conformity with land use approved in master plan zonal development plan, penalization will not apply to such buildings. 42. In the present, the unofficial respondents are running a nursing home. As per the master plan, the nursing homes / hospitals falls under the category of ‘institutional buildings’ under 2.12 and under the table given under residential zone in 3.1 ‘zoning regulations’ under Appendix XII, nursing home in residential zone is permissible. Therefore when, running of nursing home is permissible under residential zone as per the master plan and also does not come within the prohibitions contained in Rule 9 (i), regulating the deviations cannot be found fault with. Under Rule 4, prior clearance from Fire Service Department is essential for commercial buildings with the height of 6 mts and above, and residential buildings more than 15 mts. In the present case, as per the averments made by the official respondents in their counter affidavits, the height of the building is less than 9 mts. and hence no prior clearance from the Fire Services Department is required. In view of this factual position, the contention of the petitioners that unofficial respondents failed to produce No Objection Certificate from the Fire Services Department, while seeking regularization, cannot be sustained. As noted above, the running of nursing home in residential zone is permissible and hence it does not come within the prohibited conditions under Rule 9 (i) of G.O.Ms.No.901, since the running of nursing home is in conformity with the land use approved in master plan zonal development plan. 43. As already noted above G.O.Ms.901 has been issued for regularizing the unauthorized constructions and constructions made in deviation of the sanctioned plan by penalization, as one time measure. Under the said G.O., Rule 4 contemplates for obtaining prior clearance from other authorities / departments in certain cases and under Rule 9 penalization will not apply to cases enumerated in the said rule. The said G.O. does not contemplate maintenance of set backs. In the counter affidavit filed by the Commissioner, Municipal Corporation, Karimnagar in W.P.No.10204/2011 it is stated that the there is no requirement to maintain certain set backs while regulating the building as per G.O.Ms.No.901 MA dated 31.12.2007 and it is also denied that the building requires the front set back of 4.5 mts. and 3 mts. or ¼ of the height of the building whichever is more for side set backs in considering the building regulation as per the said G.O. The case of the unofficial respondents is that they have maintained set backs, as there were minor deviation to the sanctioned plan, got them regulated under the building penalization scheme, which is a one time measure. Further in the counter filed by the Commissioner in W.P.No.27542/2009 it is stated that the permission of construction of 3rd and 4th floors in favour of the unofficial respondents, clearly shows the set backs in front and rear sides maintained by the unofficial respondents and they are in conformity with the rules of revised building rules, 2008. It is further stated that the allegation of granting permission to the unofficial respondents will cost air pollution and nuisance in the area and locality where the writ petitioners are residing, is not correct. 44. In view of the above circumstances, I am of the considered view, that the Appellate committee has rightly overruled the objections raised by the petitioners against the regularization proceedings and I do not find any reason to interfere with the order in Appeal No.898/2011/A1 dated 10.03.2011, in confirming the regularization proceedings of the Commissioner in proceeding No.,137/14/2008/Knr dated 29.7.2009. 45. In the judgments relied on by the counsel for the petitioners in support of their contention that that buildings constructed in violation of the building regulations and master plan and zonal development and Floor Area Ration, and further causing hardship to the public and endangering public safety and public interest cannot be regularized; cannot be made applicable to the facts of the present case, for the reason that as already noticed above, the nursing home of the unofficial respondents in residential zone, is not contrary to the zonal regulations and it is in conformity with the master plan and does not come within any of the prohibitions contained under Rule 9 of G.O.Ms.No.901. Further in the said judgments, there is no scheme for regularization and the regularization scheme, which was introduced as a one time measure, was upheld by a Division Bench of this court in the decision reported in K.V.H. PRASAD v. GOVT. OF ANDHRA PRADESH [21] . 46. As the building of the unofficial respondents with cellar, ground + 2 floors was regularized under G.O.Ms.No.901 M.A., dated 17.6.2009, it is stated by the official respondents that after verifying the feasibility of granting of such construction permission over the existing building under the A.P. Revised Common Building Rules 2008 issued under G.O.Ms.No.302, the 1st respondent – Commissioner granted permission vide proceedings No.G2/558/2009 dated 6.11.2009. In view of the above discussion, I do not find any justification to interfere with the said proceedings. 47. From the averments on record, it could be seen that the petitioners and the unofficial respondents, are neighboring owners and the petitioners are also having a medical college under the name and style “Chalmeda Anand Rao Medical College at Karimnagar. The unofficial respondents alleged that the petitioners are not residing in the house at Karimnagar at H.No.3-1-396, Christian Colony, Karimnagar and that they are mostly residing with their family at Gaganmahal, Domalguda, Hyderabad and using the premises at Karimnagr for guest house for college, without permission. The unofficial respondents also made allegations that the petitioners have been harassing them to see that they do not run the nursing home, though in the area in question number of hospitals, banks and other institutions are operating. The petitioner filed reply and denied the allegations made by the unofficial respondents. However, as the said allegations are not necessary for adjudication of these writ petitions, they are not being referred to. But from the averments made by the petitioners and the unofficial respondents, it prima facie appears that there is professional rivalry, and further at one breath the petitioner contends that running of nursing home is causing nuisance to them because of gather of patients and their attendants and on the other, complains public safety. 48. From the material on record, it could be seen that the unofficial respondents obtained permission vide proceedings No.BA/60/G2/340 dated 10.5.2002 for construction of nursing home as well as residential house with G + 2 floors and their case is that the construction was completed by 2003. As there were deviation, consequent to the introduction of building penalization scheme, the said deviations were regularized by the Commissioner vide proceedings No.137/14/2008/KNR dated 29.7.2009. The further case of the unofficial respondents is that though the construction was completed in the year 2003 and they have been using the premises, the petitioners never raised any objection and only for the time in the year 2009 i.e., after a period of about six years, filed objections to the regularization proceedings and hence, the silence of the petitioners amounts to waiver or acquiescence. 49. Further, in the counter affidavit while denying the writ averments, it is stated by the unofficial respondents that the writ petition itself is not maintainable either in law or on facts, as there is no pleading with regard to existence of vested legal right in the writ petitioners as neighbours and infringement there of by these respondents. A perusal of the affidavits filed in support of the writ petitions, it could be seen that there are no averments with regard to infringement of any legal rights affecting the petitioner. In similar circumstances, in the decision reported in ATLURI PURUSHOTHAM v. VIJAYAWADA-GUNTUR-TENALI- MANGALAGIRI URBAN DEVELOPMENT AUTHORITY [22] , the Division Bench of this court considering a public interest litigation filed by a neighbouring land owner challenging the G.O. issued for permitting constructing of building without maintaining set backs and sanctioned plan, held that as the G.O. issued relaxing set backs as a policy measure keeping in view of the larger interest of the public, cancellation of building permission issued under the said G.O., on the representation of neighbour without notice to builders is not legal. It is further held that neighbours cannot file such a petition as public interest litigation unless public would be affected bona fide by violation of building law. It is further held that neighbour has no locus standi to maintain action in relation to contravention of any law unless such contravention would affect his legal rights and that neighbours rights cannot be stretched too far so as to affect the rights of owners of property. 50. In another judgment in K.H.V.Prasad’s case (21 supra), amendment made to HMC Act, 1955 by inserting Sections 452-A, 455-A and 455-AA, which empower the Commissioner to regularize and penalize unauthorized construction and also G.O.Ms.No.901 fell for consideration before Division Bench of this court. The Division Bench held that in view of the amendment to the main statute, State is empowered to take up the scheme of regularization and it is well settled law that Executive has to follow the methodology laid down by the statute and the fundamental right to life of petitioners or neighbours under Article 21 of Constitution of India not violated by granting concessions under law for such constructions or for violation of set backs and that legal rights of neighbours against offending constructions neither taken away nor nullified by impugned provisions inserted by Amendment Act. It was further held that those provisions relating to regularization or penalization intended merely to secure the said offending constructions from drastic provisions of demolition etc., under Municipal Laws; that the apprehension of petitioners that their easementary rights are lost, held to be not fundamentally correct. 51. In view of the above judgments of this court, the relief sought for by the petitioners cannot be granted and the writ petitions are devoid of any merits and are liable to be dismissed and accordingly dismissed. 52. The learned counsel appearing for the unofficial respondents during the course of arguments submitted that the building of the unofficial respondents was regularized in the year 2009 and appeal was dismissed and permission for further construction of 3rd and 4th floors was also granted during the year 2009, and because of the unnecessary litigation thrusted by the petitioners and the status quo obtained by them, they could not commence construction and the period of building permission lapsed due to pendency of the writ proceedings and the interim orders and therefore, sought for a direction to the official respondents to extend the building permission by excluding the period of litigation. Having regard to the facts and circumstances, this court is of the view, that as this court granted interim order of status quo on 17.12.2009 and subsequently by order dated 31.12.2009, extended the said order until further orders and as submitted by the counsel for the unofficial respondents that these respondents did not proceed with the construction of 3rd and 4th floors as per the permission granted vide proceedings No.G2/558/09 dated 6- 11-2009, in obedience to the orders of this court, and eventually, as the writ petitions are dismissed, in the interest of justice, the Commissioner shall extend the period granted for construction in proceedings dated 6.11.2009, by excluding the period of litigation. 53. No order as to costs. 54. Miscellaneous petitions, pending, if any, stands dismissed. ------------------------------------ 30—04—2013 AVS [1] (2009)15 SCC 705 [2] (2004)8 SCC 733 [3] (2007)2 SCC 468 [4] (2006)3 SCC 208 [5] (2007)11 SCC 40 [6] (2012) 2 SCC 232 [7] (2008)12 SCC 230 [8] (2002)2 SCC 290 [9] (1986)4 SCC 537 [10] (1996)4 SCC 104 [11] (1974)3 SCC 459 [12] (1984) 4 SCC 103 [13] (2011)8 SCC 380 [14] (2011)6 SCC 508 [15] (2009)11 SCC 84 [16] (2010)10 SCC 539 [17] 1989 Supp (2) SCC 248 [18] (1985)4 SCC 417 [19] (1981) 4 SCC 716 [20] (2005)9 SCC 579 [21] 2009(4) ALT 71 (DB) [22] 2005(5) ALT 152 (D.B.) "
Other Referred Cases
SHANTI SPORTS CLUB v. UNION OF INDIA, FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA, STATE OF RAJASTHAN v. H.V. HOTELS (P) LTD., S.N.CHANDRASHEKAR v. STATE OF KARNATAKA, MUNICIPAL CORPN. SHIMLA v. PREMLATA SOOD, R.K.MITTAL v. STATE OF U.P., UNION OF INDIA v. VIPAN KUMAR JAIN, ATLURI PURUSHOTHAM v. VIJAYAWADA-GUNTUR-TENALI-MANGALAGIRI URBAN DEVELOPMENT AUTHORITY, K.H.V.Prasad v. GOVT. OF ANDHRA PRADESH
Laws Referred To
A.P. Revised Common Building Rules, 2008, Andhra Pradesh Regulation and Penalization of Unauthorizedly constructed buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007, A.P. Fire Service Act, 1999, National Building Code of India
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