1 APHC010260842023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] WEDNESDAY ,THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA WRIT PETITION NO: 13599/2023 Between: Kodukula Subramanyam ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. MATCHA HARIKA Counsel for the Respondent(S): 1. GP FOR MUNCIPAL ADMN URBAN DEV 2. A S C BOSE (SC FOR MUNICIPAL CORPORATIONS AP) 3. V V RAVI PRASAD The Court made the following: 2 ORDER: This Writ Petition is filed by the petitioner, under Article 226 of the Constitution of India seeking Mandamus, for the following relief: “…to issue an order or direction more in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in passing the impugned order E-Office No.331930/2022/ACP-VIII/G1(e- 331930), dated 10.05.2023, directing the petitioner to remove the alleged deviations within 15 days from the date of the order without assigning any reasons is illegal, arbitrary, unconstitutional and contrary to the Provisions of the A P M C Act 1955…” 2. The petitioner obtained building permission for the construction of stilt + G+2 floors on 16.04.2022 vide B.A.No.1086/1696/B/Z8/BAR/2022 for the property situated at Prahladapuram, Visakhapatnam situated in Plot No.131, Sy.No.151/1B, Vepagunta, Visakhapatnam District. After obtaining the said building permission, the petitioner started construction without making any deviations. 3. While the construction was in progress, the 5th respondent made a complaint in Spandana to the 2nd respondent complaining that the construction undertaken by the petitioner was causing disturbance for him and thereafter the 2nd respondent inspected the site and found that there was no disturbance because of the petitioner’s construction and the same was informed to the 5th respondent also. 3 4. Inspite of the same again, the 5th respondent made another complaint on 28.07.2022. In pursuance of which, the 2nd to 4th respondents has informed the 5th respondent about the action initiated against the petitioner herein. But however, the 5th respondent has filed W.P.No.30963 of 2022 and the same was disposed of on 22.09.2022 with the following directions:- “It is provided that the 2nd respondent shall consider and pass appropriate orders on the petitioner’s representation/Spandana Application dated 22.08.2022 in accordance with law, after affording opportunity of hearing to the respondents 4, 5 and 6, within a period of two months from the date of receipt of copy of this order along with fresh copy of the Spandana application dated 22.08.2022 before the 2nd respondent.” 5. In pursuance of the said order, a notice was issued to the petitioner under Section 452(1) and 461(1) of A.P.M.C Act, 1955 on 19.10.2022 and another notice dated 30.11.2022, for which, the petitioner has submitted an explanation. But however, the petitioner has also filed W.P.No.39958 of 2022 before this Court questioning the said notice dated 30.11.2022, which was partly allowed by this Court vide orders dated 13.12.2022 with the following directions:- “1. The petitioner, is granted liberty to file additional reply as requested by the petitioners counsel, within a period of one (1) week from the date of receipt of a copy of this order before the 2nd respondent. 4 2. The 2nd respondent i.e., GVMC shall pass fresh reasoned order after considering the petitioner’s reply dated 30.11.2022 as also the additional reply if any filed as aforesaid in accordance with law, within a period of four (4) weeks from the date of receipt of a copy of this order. 3. Till passing of the final order, no coercive steps shall be taken against the petitioner. 4. Till passing of the final orders, the petitioner shall not raise any further construction in view of the provisional order dated 19.10.2022 by which the petitioner was directed to stop the construction.” 6. Thereafter, the 5th respondent filed the Contempt Case No.6059 of 2022 alleging willful disobedience of the orders passed by this Court on 22.09.2022 in W.P.No.30963 of 2022, which was rejected by this Court vide orders dated 15.12.2022. Thereafter, the 5th respondent again filed another W.P.No.187 of 2023 and this Court was pleased to disposed of the same on 04.01.2023 with the following directions:- “i) The respondent No.2 shall pass appropriate orders as per the direction in W.P.No.30963/2022. ii) The petitioner’s reply dated:30.11.2022 for the show cause notice dated:18.04.2022 shall also be considered and final order shall be passed pursuant to the notice dated:18.04.2022. iii) Till the final decision is taken by the authority, no coercive action will be taken pursuant to the impugned notice. 5 iv) Till the final decision is taken, the petitioner shall neither raise any further construction nor shall create any right, title or interest in favour of any third party with respect to the subject matter of the impugned notice.” 7. In pursuance of the orders passed by this Court, the 2nd respondent has issued notice to the petitioner and also to the 5th respondent directing both of them to appear before him on 06.02.2023 at 03.00 p.m. in his chambers for conducting an enquiry. Accordingly, the petitioner has appeared before the 2nd respondent and explained that the constructions are being made as per Vaastu and further requested to take action against the 5th respondent for having constructed a building with deviations and also by encroaching the land belonging to Simhachalam Devasthanam. After due enquiry, the 2nd respondent passed the following orders on 10.05.2023:- “ Sri K.Subramanyam are Golla Narayanapuram, Vepagunta Village is hereby directed to remove the deviation portions constructing Stilt+G+2 floors residential building against the sanctioned plan vide BA No.1086/1696/B/ZB/BAR/2022m dt,06.04.2022 within 15 days, failing which department will initiate further course of action as per rules in force. Sri P.Santosh Surya Praveen is hereby directed to produce the existing building particulars i.e. approved plan by the GVMC or Panchayat, site documents along with link documents, LRC/NOC from Devasthanam within 7 days, failure to submit the above said documents action will be initiated as per rules in force.” 6 8. The said orders passed by the 2nd respondent are impugned in the present writ petition alleging that though the petitioner is ready to pay the penalization charges for the said minor deviations made by him, the 2nd respondent has directed the petitioner to remove the deviation portion constructed by him within a period of 15 days, failing which the department will initiate further course of action as per rules in force. 9. When the writ petition came up for admission on 25.05.2023, this Court was pleased to pass the following interim order. “…In the meanwhile, there shall be an order of status quo as on today to be maintained with respect to the subject building involved in so far as the petitioner is concerned as per the sanctioned plan vide B.A.No.1086/1696/B/Z8/BAR/2022 dated 06.04.2022 pending further orders.” 10. Heard learned counsel for the petitioner and learned counsel for the respondents. 11. Today when the matter came up for hearing, learned Standing Counsel representing respondent Nos.2 to 4 has furnished a copy of instructions dated 11.02.2025, wherein it is stated that as per G.O.Ms.No.119 M.A. Dt.28.03.2017, clause 33(g) allows for a maximum 10% penalty of deviations of setbacks, excluding front setbacks. However, the petitioner’s building set backs have exceeded this 10% limit, this deviation is not permissible under the existing rules. As the petitioner has deviated the sanctioned plan which is 7 against the rules, which cannot be regularized or penalized and has further stated that the 2nd respondent will take necessary action in accordance with law. The said instructions are also enclosed with a copy of G.O.Ms.No.119, dt.28.03.2017, wherein 4(g) speaks as under:- “(g) The Sanctioning Authority is empowered to compound the offence in relation to setbacks violation (other than the front setback) in respect of non-high rise buildings only up to 10% duly recording thereon the violations in writing. The rate of Compounding fee shall be equivalent to one hundred percent of the value of the land as fixed by the Registration Department at the time of compounding for the violated portion and the Government may revise this rate from time to time. Compounding of such violation shall not be considered for buildings constructed without obtaining any sanctioned plan.” 12. The unofficial respondent No.5 has also filed a counter in support of their case reiterating the facts as stated by respondent Nos.2 to 4. 13. Learned counsel for the petitioner relied upon the Judgment passed by this Court in W.P.No.13258 of 2024 and batch on 04.07.2024, wherein it is held that “the power of demolition should be exercised by the respondent authorities concerned only if the deviations made during the construction are not in public interest or cause public nuisance or hazardous or dangerous to the public safety including the residents therein and if the deviations are minor, minimal or trivial, or do not affect public at large the respondent authorities shall not resort to demolition. 8 14. The judgment relied by the learned counsel for the petitioner will not help the petitioner in view of the fact that the deviations made by the petitioner are major and are beyond the limit of 10%. 15. In view of the above facts and circumstances, though the petitioner is ready to pay the penalty for the deviations made by him, as the same are beyond the permissible limit by G.O.Ms.No.119, dated 28.03.2017, the respondents are at liberty to initiate further action in accordance with law. However, the same shall be initiated after giving notice to the petitioner and conducting an enquiry in the presence of the petitioner also. The petitioners are also directed to cooperate with the respondents. 16. In view of the same, the Writ Petition is disposed of. No order as to costs. Consequently miscellaneous applications pending, if any, in the Writ Petition, shall also stand closed. ___________________ JUSTICE V.SUJATHA Date : 12.02.2025 JLV