1 APHC010048072025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] MONDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA WRIT PETITION NO: 2415/2025 Between: Kandunuri Pothuraju, ...PETITIONER AND The State of Andhra Pradesh and others ...RESPONDENT(S) Counsel for the Petitioner: 1. M K RAJ KUMAR 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 an order, writ or direction more particularly in the nature of Writ of Mandamus declaring the action of the respondents in issuing the notice No.01-225/2024/VMC dated 28.01.2025 U/s 636 of AP MC Act, 1955 without considering the explanation submitted by the petitioner dated 29.01.2025 for demolishing of deviation portion in the property bearing D.No.18-11/2-5 situated at Kedareswarapet, 5th Line, CPM, Grandalayam Road, Vijayawada as illegal, arbitrary and violative of Article 14, 19(1)(g), 21 and 300A of Constitution of India and also against the Rules of AP MC Act, 1955 and consequently direct the respondents not to demolish the above said property without considering the explanation submitted by the petitioner dated 29.01.2025…...” 2. The brief facts of the case are as follows: a) The petitioner is the absolute owner and possessor of the property bearing D.No.18-11/2-5, situated at Kedareswarapet, 5th line, CPM, Grandalayam Road, Vijayawada, which was purchased from one Bhrugubana VenkataNarasimha Rao on 12.01.2015. b) The case of the petitioner is that originally the property belonged to one KallaBalaBabu, and when it was put up for auction, the petitioner’s vendor has purchased the said property through Court auction in E.P.No.198 of 2009 in O.S.No.722 of 2007 on the file of I Additional Senior Civil Judge, Vijayawada vide Sale Certificate No.3 of 2013. Thereafter, the petitioner purchased the same through a registered sale deed dated 12.01.2015. When third parties tried to interfere into the petitioner’s possession of the scheduled 3 property, the petitioner was constrained to file O.S.No.595 of 2023 before the learned II Additional Junior Civil Judge, Vijayawada seeking permanent injunction to restrain the defendant from disturbing the peaceful possession and enjoyment of the scheduled property. The petitioner was also granted ad interim injunction vide orders dated 22.12.2023. The petitioner also applied for building permission to construct stilt + Ground + two upper floors building, and the same was granted by the 2nd respondent vide permission No.1073/0427/B/VMC/KED/2024, dated 29.04.2024. After obtaining the approval from the 2nd respondent, the petitioner started construction as per the approved building plan. c) While the matter stood thus, a third party who is JDR and defendant in the suit filed by the petitioner herein, raised a complaint before the 2nd respondent, alleging that the petitioner was constructing the building by deviating the building plan granted by the 2nd respondent. As such, the 2nd respondent issued a notice under Section 452(1) and 461(1) of the APMC Act, 1955, on 25.11.2024, calling for an explanation from the petitioner within seven days from the date of receipt of that notice. d) The further case of the petitioner is that, as the petitioner was held up at Hyderabad taking care of his old aged parents, he could not submit an explanation to the initial notice dated 25.11.2024. Subsequently, the 2nd respondent issued second notice on 04.01.2025, which was not served on the petitioner for the same reason that he was held up at Hyderabad. However, in pursuance of the final notice issued by the 2nd respondent on 28.01.2025, 4 which was served on the petitioner through his mobile phone, under Section 636 of APMC Act 1955, giving 24 hours time to remove the deviated portion, the petitioner has submitted a detailed explanation on 29.01.2025 stating that a civil suit with regard to scheduled property is pending for adjudication before the competent Civil Court and also that ad interim injunction is in force and requested to grant some more time to submit the relevant documents in pursuance of the said notice. But, in spite of the same, as the 2nd respondent is trying to interfere with the petitioner’s possession over the schedule property, the petitioner filed the present writ petition. 3. Heard learned counsel for the petitioner and the 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. Today, when the writ petition came up for admission, the learned Standing Counsel representing the 2nd and 3rd respondents furnished a copy of instructions of the 2nd respondent dated 30.01.2025, wherein it is stated that as the petitioner has commenced construction in deviation to the approved building permission in respect of setbacks and as well as by encroaching upon the road widening portion of 5.13 sq.meters, which was in fact surrendered by the petitioner at the time of sanctioning the building permission. A show-cause notice under Sections 452(1) and 461(1) was issued to the petitioner on 25.11.2024, giving seven days time to explain as to why the deviated portion should not be removed or pulled down. In spite of receiving the said notice, 5 the petitioner failed to submit any explanation. Thereafter, a second notice dated 04.01.2025 was issued to the petitioner, granting seven days time to submit his explanation. Since the said notice was returned unserved, a final notice under Section 636 was issued to the petitioner, which was served on 28.01.2025. It is further stated that as the petitioner has committed major deviations without maintaining statutory setbacks on all sides and has also encroached upon the road widening portion by exceeding the built up area permitted to him, as such, the respondents have initiated action in accordance with law. 5. On perusal of the petitioner’s affidavit and as well as the instructions submitted by the learned Standing Counsel, it is clear that the petitioner could not submit an explanation to the initial notice dated 25.11.2024 and the subsequent notice dated 04.01.2025, as the petitioner was out of station taking care of his old aged parents, and admittedly the notice dated 04.01.2025 was returned unclaimed. It is also admitted fact that the petitioner has submitted an explanation on 29.01.2025 to the final notice dated 28.01.2025. But, in spite of considering the said explanation the 2nd respondent was trying to interfere into the petitioner’s possession. 6. In view of the same, the 2nd and 3rd respondents are directed to consider the explanation submitted by the petitioner on 29.01.2025 and if necessary conduct enquiry after giving appropriate notice to the petitioner herein and then proceed in accordance with the law. Till such time, the 6 respondents are directed not to interfere with the possession of the petitioner over the subject property. 7. Accordingly, the Writ Petition is disposed of. No costs. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed. __________________ JUSTICE V.SUJATHA Date: 03.02.2025 KGR