IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 22656 of 2000 Between: D.Narasimha Rao, S/o. Kondaiah, Hindu, R/o. Lakshmipuram, Guntur ..... PETITIONER AND 1 Commissioner, Muncipal Corporation, Guntur. 2 The Government of A.P. Rep. by Secretary Dept. of Municipal Administration and U.D., Secretariat Buildings, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondent herein in directing the petitioner hereinto demolish any portion of the building including cellar portion in premises bearing No.12-25-180, situated at Kothapet, Guntur, belonging to the petitioner is illegal arbitrary without jurisdiction. Counsel for the Petitioner: MR.P.R.PRASAD Counsel for the RespondentNo.1: MR.V.VENKATA RATNAM Counsel for the Respondent No.2: GP FOR MUNICIPAL ADMN. AND URBAN DEV. The Court made the following: THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR Writ Petition No.22656 of 2000 ORDER: I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the first respondent. The subject matter of the writ petition is a building bearing No.12-25-180 situated at Kothapet, Guntur, which consists of 200 sq.mtrs., for which, the Municipality has granted permission for construction of cellar + 2 floors. According to the petitioner, the area falls under residential zone and there is no need to keep the cellar for parking, as is required for commercial zone. However, the stand of the respondents is that in the cellar area, commercial constructions were made, which are not permissible, and as such, the petitioner was asked to demolish the same. The petitioner, therefore, has filed this writ petition seeking a Mandamus against the threatened action of the respondents in demolishing the building, including the cellar. The other contention of the petitioner is that he has already applied for regularization under G.O.Ms.No.419, dated 30.07.1998, and that he has already paid substantial amounts towards regularization fee. While the said application is pending, the action for demolition has been threatened, which is liable to be declared as contrary to law. A counter affidavit is filed by the first respondent reiterating its stand that the approval of the building is to keep cellar for parking, but it is being actually used for commercial purpose by constructing a shop. It is also alleged that the construction of a shop is contrary to the building permission granted to the petitioner. However, to the extent of the petitioner’s application under G.O.Ms.No.419, M.A., dated 30.07.1998, with respect to regularization is concerned, the first respondents in para-6 of the counter affidavit admits that the petitioner was informed, vide B.R.S.No.4134/98/G3, dated 20.08.1999, to pay the balance penal amount. It is, therefore, clear that the BRS application of the petitioner is pending with the second respondent-Government. In addition to the above, the petitioner has filed additional affidavit along with W.P.M.P.No.32389 of 2007 on 16.11.2007 making a specific averment that the first respondent-Corporation under its notice in B.R.S.No.4134/98/G3, dated 10.04.2003, informed him that apart from Rs.75,205/- remitted by him with the aforesaid BRS application, a further sum of Rs.54,205/- is required to be remitted and accordingly, he was called upon to the remit the same within a period of three days from the date of receipt of the notice. A copy of the notice is produced along with the affidavit. The petitioner also avers that under a letter, dated 10.04.2003, he has paid the said amount of Rs.54,205/- vide a banker’s cheque bearing No.251456, dated 19.04.2003, drawn on City Union Bank, Guntur, and as such, the full amount as per the notice of the first respondent is paid. The aforesaid documents, therefore, clearly establishes that the petitioner’s BRS application is pending with the second respondent and that the penal amounts have been collected, but no action has been taken so far. In the fitness of things, it would be just and reasonable to direct the respondents to pass appropriate orders on the petitioner’s application for regularization, in view of the fact that entire penal amount has already been received by the Government. There is also another development, which is evident from the further affidavit filed by the petitioner in respect of W.P.M.P.No.32389 of 2007, and in para-5 thereof, the petitioner has specifically stated that after he remitted the penal amount as aforesaid, the offending portion of the cellar was demolished in the month of August, 2004 and therefore, he seeks appropriate relief to reconstruct the said demolished structure or alternatively to direct the respondents to refund the amount of penal charges paid by him with interest at 12% per annum. The said W.P.M.P.No.32389 of 2007 is already ordered, while hearing the writ petition and in view of the same, now it is for the respondents to take a decision in terms of G.O.Ms.No.419, dated 30.07.1998, on the application filed by the petitioner for regularization, especially in view of the fact that entire penal amount as called upon by the Corporation has been remitted by the petitioner. The respondents shall also take into consideration the subsequent events, which are mentioned above, and either permit the petitioner to reconstruct the demolished part of the building or to refund the entire penal amount with interest, in case the petitioner is found not eligible for regularization. In this context, the petitioner is also granted liberty to make further representation, if any, to the respondents within a period of two weeks from today, and the competent authority ultimately shall take an appropriate decision on the said aspects. With the above directions, the writ petition is disposed of. No costs. ____________________ Vilas V.Afzulpurkar, J Dt.01.12.2008. VGB