1 APHC010077292024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] WEDNESDAY ,THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 4171/2024 Between: Kona Raghupati, and Others ...PETITIONER(S) AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner(S): 1. V S K RAMA RAO Counsel for the Respondent(S): 1. GP FOR MUNCIPAL ADMN URBAN DEV 2. A S C BOSE (SC FOR MUNICIPAL CORPORATIONS AP) 3. G RAMA GOPAL WRIT PETITION NO: 4080/2024 Between: Barla Trinadha Rao, ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. G RAMA GOPAL 2 Counsel for the Respondent(S): 1. V S K RAMA RAO 2. A S C BOSE (SC FOR MUNICIPAL CORPORATIONS AP) 3. GP MUNCIPAL ADMN AND URBAN DEV AP The Court made the following: 3 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION Nos. 4171 & 4080 /2024 COMMON ORDER: W.P.No.4171 of 2024 is filed questioning the Endorsement dated 16.01.2024 vide Letter bearing No.EDS/1086/2023/3255 and the Stop Work Order bearing No. SWO/1086/2023/2486, dated 16.01.2024 issued by the Respondent No.4. 2. WP No.4080 of 2024 is filed to declare the action of Respondent No.2 in not preventing the illegal constructions being made by the Petitioners in W.P.No.4171 of 2024 over an extent of 105.5 Sq.yards in Town Survey Number 923, China Waltair Village, Visakhapatnam, in spite of the Complaint dated 05.02.2024 and consequently demolish the illegal constructions. 3. As both the Writ Petitions pertaining to the same building, a Common Order is being passed. 4. W.P.No.4171 of 2024 is taken as the lead Writ Petition and the facts in the said Writ Petition are narrated on the basis of the arrangement of parties in the said litigation. 5. The Petitioners claim to have entered into a registered General Power of Attorney-cum-Development Agreement on 20.12.2021 executed by the Petitioner No.1 in favour of Petitioner No.2 for 4 construction of a residential building in the property bearing Door No.8- 34-6/1 in Sy.No.923 admeasuring 228 Sq.Yards, Block No.29 situated at Kona Street, Chinawaltair, Visakhapatnam. Consequent to the above said registered Development agreement, the Petitioner No.2 applied for building permission to construct G+2 building in the proposed site. 6. Initially, the Respondent No.2 granted building permission vide Permit No.1086/3009/B/Z3/CIR/2022, dated 09.09.2022 for construction of G+2. On 21.09.2022, a Show Cause Notice was issued by the Respondent No.2 calling upon the Petitioners as to why the building permission should not be cancelled in view of the inconsistency in the measurements shown in the document. In the said notice, there was a reference about dismissal of O.S.No.1903 of 2006 and W.P.No.19153 of 2006 in favour of Respondent No.2 Corporation. 7. Thereafter, a Writ Petition was filed by the Petitioners vide W.P.No.17034 of 2023 questioning the said Show Cause Notice. The said Writ Petition was disposed off on 13.07.2023 directing the Respondent No.2 to consider the Explanation dated 26.09.2022 submitted by the Petitioners pursuant to the impugned Show Cause Notice therein and pass appropriate orders within a period of two months. 8. It appears from the record that the building permission granted in favour of the Petitioners referred above was revoked on 5 05.12.2022 on the ground that the Petitioners did not submit any explanation to the Show Cause Notice either by himself or through Licensed Technical Person (LTP). Though Revocation of the building plan appears to be in contravention with the Order of this Court in W.P.No.17034 of 2023, the Petitioner No.2, rather than pursuing the building order of revocation, made a fresh application for building plan through online and the same was granted vide B.A.No No.1086/3009/B/Z3/CIR/2022, dated 14.11.2023. 9. While the construction was being made by the Petitioners in pursuance of the subsequent building plan, the impugned Endorsement and the Stop Work Order were issued by the Respondent No.4 on the ground that there are several litigations in the subject site regarding the ownership and therefore, the Petitioners are called upon to re-submit the proposal after getting the outcome of the legal issues. Hence, W.P.No.4171 of 2024 was filed. 10. In the Counter Affidavit filed by the Respondent No.2, it was stated that a complaint was received from Respondent No.5 stating that unauthorized construction is being undertaken by the Petitioners in the site at T.S.No.923 of China Waltair Ward, Block No.29 in an extent of 185.87 Sq.mts by showing his site of 105.5 Sq.yards along with their site of 106 Sq.Yards. It was further stated that Respondent No.2 got the complaint verified on ground and found that no construction had started 6 in the subject site. 11. It was also stated that the building plan originally granted on 13.09.2005 in favour of the Petitioners was revoked on 11.08.2005 by the Respondent No.2. It was mentioned in the Counter Affidavit that the building approval granted in favour of the Petitioners for the second time i.e., in the year 2018, was also revoked on 12.04.2018 as there was no proper explanation from the Petitioner No.1. For the third time, the building permission was granted on 21.09.2022 and the said application was also revoked as narrated supra. 12. In the counter Affidavit, it was further mentioned that the Petitioner No.1 had filed O.S.No.1903 of 2006 questioning the revocation of building plan and the said suit was dismissed for default on 17.04.2013 and the W.P.No.19153 of 2006 filed before the then High Court of A.P. at Hyderabad was dismissed as withdrawn. 13. As there was a complaint regarding the construction made by the Petitioners, it is stated that Respondent No.2 came to know about the civil litigation pending between the impleaded respondent and the Petitioners regarding ownership of the subject matter though the Respondent No.2 is not a party in those cases. It was stated that in that context, the impugned notices were said to have been issued. 7 14. In the Counter Affidavit filed by the Respondent No.5/ the Writ Petitioner in W.P.No.4080 of 2024, it was pleaded that the Respondent No.5 is the owner of an extent of 105.5 Sq.yards covered by Town Survey No.923 of China Waltair Village, Block No.29, Visakhapatnam, having purchased the same under registered document No.2564/2005, dated 1.06.2005. It was stated that the vendor of the Respondent No.5 had acquired the properties through his father Kona Rama Rao and the said Kona Rama Rao during his life time constructed a thatched house in the site of 105.5 Sq.Yards and gave it for rent to the father of Petitioner No.1. RCC No.96 of 1984 on the file of Rent Controller, Visakhapatnam, was also filed and the same was allowed and thereafter, the Respondent filed E.P.No.07 of 1996 and got evicted and secured the premises. 15. While the Rent Control Proceedings were pending, the father of the Respondent No.5 died and the vendor of the Petitioner Kona Venkata Radha Krishna was added as the Petitioner and legal heir. It was stated that the Petitioner had got the properties to an extent of 106 Sq.yards on the northern side of Respondent No.5 having secured the same under a registered Partition Deed dated 28.10.1983. Though the Petitioner No.1 is not having 228 Sq.Yards, the building plan was made for 228 Sq.Yards. As the Petitioners do not have any right over an extent of nearly half of the extent, it was in that context, the building plans were revoked by the Respondent No.2. 8 16. It was also mentioned in the Counter Affidavit that the Respondent No.5 and his vendor had filed O.S.No.859 of 2003 before the Principal Junior Civil Judge, Visakhapatnam, for permanent injunction and for mandatory injunction regarding the very same plot. Though the suit was dismissed, the Respondent No.5 had filed Appeal No.78 of 2018 before II Additional Senior Civil Judge, Visakhapatnam and the same is pending for disposal. 17. Respondent No.5 submits that there is a serious dispute of title and there is a bonafide pursuit of the establishment of his right right from 2003 and therefore, any construction being made by the Petitioners would make any decree in the principality of the success in the appeal would delay the benefit. 18. Having heard the respective counsel, the issue that falls for consideration is whether there is any justification on the part of the official Respondent Nos. 2 and 4 to issue Endorsement and Stop Work Order on the ground of pendency of the Civil Litigation. 19. As narrated above, the Civil Suit filed by the Respondent No.5 with regard the same property was dismissed by the trial Court and there is no reason for the Respondent authorities to issue the impugned Orders of stopping the construction merely because a civil 9 litigation is pending. Once, the Respondent authorities had issued the building plan, only and until there is any violation of the provisions of the building permission or the provisions of the A.P Building Rules, 2017, the Respondents are not supposed to issue any Stop Work Order and that would be contradicting their own building permission sanctioned plan and in excess of power conferred under the Act. 20. Therefore, as the claim of the Petitioners over the schedule property was negatived by the Civil Court, and though the said Judgment and decree of the Civil Court is the subject to the outcome of the appeal, at this stage, it is not proper for the Respondents to pass the impugned orders and stall the construction. Therefore, this Court is of the opinion that the Writ Petitions can be disposed of with the following direction: i) The impugned Orders are set aside. The Petitioners shall proceed with construction as per the building plan sanctioned vide permit No. BA No.1086/3009/B/23/CIR/ 2022, dated 14.11.2023. ii) As regards the claim of Respondent No.5, it is made clear that the constructions made by the Petitioners would be subject to outcome of A.S.No.78 of 2018 pending on the file of II Additional Senior Civil Judge, Visakhapatnam. 10 iii) The Petitioner shall not claim any equities or raise objections in the execution proceedings pursuant to the success of the claim by the Respondent No.5. No order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: 19-03-2025 eha 11 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WP Nos. 4171 & 4080 OF 2024 Dt.19-03-2025 eha U