1 APHC010583342024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] WEDNESDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA WRIT PETITION NO: 30378/2024 Between: Dontham Setty Vinay Kumar and others ...PETITIONER(S) AND The State of Andhra Pradesh and others ...RESPONDENT(S) Counsel for the Petitioner(S): 1. GRANDHI PRIYANKA Counsel for the Respondent(S): 1. GP MUNCIPAL ADMN AND URBAN DEV AP The Court made the following: 2 ORDER: This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:- “….to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the Notices vide Notice No.57/1031/NLR/UC/2024 dated 16.12.2024, Notice No.65/1031/NLR/UC/2024 dated 16.12.2024, Notice No.87/1031/NLR/UC/2024 dated 17.12.2024, Notice No.88/1031/NLR/UC/2024 dated 17.12.2024 issued by the 3rd respondent to the petitioners respectively as illegal, arbitrary and one without jurisdiction and to consequently set aside the same….” 2. The brief facts of the case are as follows: a) The petitioners herein are in peaceful possession and enjoyment of their respective houses bearing Door Nos.2-1-622, 3-227, 27-3-7/2, 5-3-309 situated in Sy.No.515/2, Ward No.9 in Rayapupalem Road, Nellore Mandal, SPSR Nellore District. By virtue of their possession, the Revenue authorities have issued Certificate of Residence to the petitioners vide document No.Rc.B.2789/2021, dated 21.12.2023. The petitioners have been in the possession of the properties and they are paying electricity bills and property tax. b) While the matter being so, the 3rd respondent issued Provisional Notices vide Notice No.57/1031/NLR/UC/2024 dated 16.12.2024 to the 1st petitioner, Notice No.65/1031/NLR/UC/2024 dated 16.12.2024 to the 2nd petitioner, Notice No.87/1031/NLR/UC/2024 dated 17.12.2024 to the 3rd petitioner and Notice No.88/1031/NLR/UC/2024 dated 17.12.2024 to the 4th 3 petitioner alleging that they are raising unauthorized constructions and directed them to stop further construction and show sufficient cause as to why the alleged unauthorized construction should not be removed within seven (7) days from the date of the receipt of the said notices. c) The impugned notices were issued under Sections 452(1) and 461(1) of Andhra Pradesh Municipal Corporation Act. Section 14 of Andhra Pradesh Municipal Corporation Act which adopts the provisions of Hyderabad Municipal Corporation Act 1955 into it. Section 452 empowers the Commissioner to initiate action against any building commenced or carried out contrary to the provisions of the Act. Similarly Section 461 also empowers the Commissioner to remove the unlawful work. Section 2(7) defines Commissioner as the one appointed as per Section 104 and Section 110 of the Act. Section 119 of the Act empowers the Commissioner to delegate his functions conferred under the Act to any Municipal Officer. d) The learned counsel for the petitioner argued that, in the present case, the Commissioner of 2nd respondent did not delegate his power under Section 452 and 461 to the 3rd respondent/Town Planning Supervisor, Nellore Municipal Corporation and thus the 3rd respondent has no power to issue the impugned notices by exercising powers under Section 452 and 461. The 2nd respondent has not issued any notices to the petitioners nor empowered the 3rd respondent to issue notice on his behalf. Therefore, the impugned notices issued by the 3rd respondent are illegal, arbitrary and without any jurisdiction. 4 e) Earlier when the Irrigation and Revenue authorities were interfering with the petitioners’ properties without issuing any notice, they filed W.P.No.29179 of 2024 challenging the action of the authorities in threatening to dispossess them from their land, wherein this Court on 10.12.2024 passed interim orders directing the parties to maintain status quo. Now, the 3rd respondent, at the behest of local leaders, issued the present impugned notices. Challenging the action of the 3rd respondent in issuing impugned notices, the present writ petition is filed. 3. Heard learned counsel for the petitioners, learned Government Pleader for Municipal Administration and Urban Development for respondent No.1 and Mr.A.S.C.Bose, learned Standing Counsel for respondents No.2 and 3. 4. The learned counsel for the petitioners submitted that the impugned notices are under challenge on the sole ground that though they are signed by the 2nd respondent, is issued by the 3rd respondent without having any jurisdiction. 5. The learned Standing Counsel representing for 2nd and 3rd respondents have submitted that the Government of Andhra Pradesh has issued G.O Ms. No.49, MA & UD Department, dated 01.02.2018 and as such delegating powers to different officers of the Municipal Corporation, the 3rd respondent is competent to issue the said impugned notices. 6. Per contra, learned counsel for the petitioners has brought to the notice 5 of this Court that the order dated 06.11.2020 copy in W.P.No.15789 of 2020 which was filed challenging the same G.O.Ms.No.49 dated 01.02.2018, wherein the powers of the Commissioner was delegated to Town Planning Supervisor, wherein initially this Court was pleased to pass an interim order, however, after considering the submissions made by the learned Standing Counsel appearing for the respondent Nos.2 and 3 should have fairly conceded that the Town Planning Supervisor does not have authority to issue the impugned notice, the said writ petition was allowed duly setting aside the impugned notice on the ground of jurisdiction. 7. The learned counsel for the petitioners submits that, under Section 452 of the APMC Act, 1955, the 2nd respondent is the competent authority to issue such impugned notices, dated 16.12.2024 and 17.12.2024. But, however, it was signed by the 3rd respondent without there being authorization under Section 119 of the Act. 8. In the case on hand, since the present impugned notice is also being challenged on the ground of jurisdiction, and in view of the fact that W.P.No.15789 of 2020, filed under similar circumstances, was allowed by this Court, this Court is of the considered opinion that the present impugned notice is liable to be set aside. 9. Accordingly, the Writ Petition is allowed by setting aside the impugned notices issued by the 3rd respondent vide Notice Nos.57/1031/NLR/UC/2024 dated 16.12.2024 issued to the 1st petitioner, 65/1031/NLR/UC/2024 dated 16.12.2024 issued to the 2nd petitioner, 87/1031/NLR/UC/2024 dated 6 17.12.2024 issued to the 3rd petitioner and 88/1031/NLR/UC/2024 dated 17.12.2024 issued to the 4th petitioner. However, the respondents are at liberty to take further action as warranted and ensure that notice, if any needed, is issued by the competent authority. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed. __________________ JUSTICE V.SUJATHA Date: 19.02.2025 KGR