- (1.)The scope and ambit of Rule 9(4) of the Building Rules in Schedule III of the Andhra Pradesh Municipalities Act, 1965 (here in after referred to as the Building Rules) fall for consideration in this second appeal.
(2.)The facts relevant for the purpose of this case shortly stated are these: Telu Nagaratnamma (hereinafter referred to as the Plaintiff) is the owner of the building, bearing Municipal Door No. 41-1-35 situated in Rangaiahnaidu street, Kakinada. She purchased the building in the year 1964. Then it had tiled roof. In the year 1966 she obtained permission of the Kakinada Municipality (hereinafter referred to as the defendant) and changed the tiled roof into terraced roof. To construct a first-floor on the existing terraced building she submitted an application on 7-6-1971 along with a plan requesting permission from the defendant. On 29-6-1971 the defendant refused permission for the proposed construction on the ground that the proposed construction violates sub-rule (4) of Rule 9 of the building rules. But the plaintiff, nevertheless constructed the first floor and made extensions also to the ground-floor. Thereupon a criminal case was filed by the defendant against the plaintiff in the second class Bench Magistrate's Court in B.C.No. 6071/71. Later a notice was also issued to the plaintiff for the removal of the unauthorised construction made in gross violation of the provisions of the Building rules. The plaintiff thereupon filed an application before the Director of Town planning for exemption, but the Director of Town Planning refused the exemption sought on 29-3-1972. Thereupon the defendant issued a notice to the Plaintiff to remove the construction made in violation of the building rules under the A. P. Municipalities Act. But the Plaintiff failed to comply with the notice given by the defendant. Therefore the defendant gave a notice of demolition to the plaintiff on 10-5-1972. Questioning this notice of demolition plaintiff filed the present suit for declaration that the notice issued by the defendant is illegal, and for a permanent injunction restraining the defendant from demolishing any part of the plaintiff's building.
(3.)The learned District Munsif on an evaluation of the entire evidence, adduced in the case held that there can be no dispute that the plaintiff constructed the first floor without obtaining the prior permission of the defendant. But however he held relying upon a decision of this Court in Kakinada Municipality V. Duvvuri Satyanarayana (1)1955(1) An.W.R. 384 that it was not open to enforce demolition of the building. He held that the defendant was at liberty to proceed against the plaintiff for the unauthorised construction in violation of the building rules, but it was not open to the municipality to order demolition for the simple reason that the plaintiff has constructed the first floor without leaving sufficient space, which was an impossible thing in the case on hand. Accordingly he decreed the suit as prayed for.