IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 21563 of 2007 Between: 1 Y.Babu Rajendra Prasad, S/o. Sri Y.Appa Rao, R/o.G-4, Uma Maheswari Gardens,Waltair Uplands, Visakhapatnam 2 Nitin Gupta, S/o.Chamanlal Gupta, Waltair Upstairs, Visakhapatnam ..... PETITIONERS AND 1 The Greater Visakhapatnam Municipal Corporation, Visakhapatnam Rep.by its Commissioner 2 M/s. Poojitaa Enterpries(P) Ltd a Company Incorporated Under the Indian Companies Act,1956,With its Regd Its Managing Director,Sri Koripalli Ramakrishna Rao, S/o.Late Sri K.Adinarayana Murthy,VFloor, Sunitha Enclave, Waltair Uplands,Kailash Metta, Visakhapatnam 3 M/s. Uma Maheswari Constructions rep.by its Proprietor, Sri P.Kasi Viswanadha Raju, S/o.Sri Venkatapathi Raju, V Floor,Uma Maheswari Gardens Appartments, Waltair Uplands,Visakhapatnam .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ a of Mandamus or any other appropriate writ, order or direction declaring the action of the Greater Visakhapatnam Municipal Corporation, Visakhapatnam-1st respondent herein in not taking any action of the for demolition of Two pent Houses constructed by the respondents 2 and 3 herein contrary to the approved plan in Uma Maheswari Gardens and Sunitha Enclave in S.Nos. 74,77A and 77C of T.P Layout No. 37/39-40 Waltair Ward, Waltair Uplands, Visakhapatnam in spite of the representation dt.17-9-2007 submitted by Uma Maheswari Gardens and Sunitha Enclave Owners's Welfare Association as illegal, arbitrary, unreasonable and violative of Article 14 of the Constitution of India and opposed to the very spirit and object of the provisions of the Hyderabad Municipal Corporation Act and consequently direct the 1st respondent herein to take appropriate actions for demolition of the said illegally constructed Two take appropriate action for demolition of the said illegally constructed Two Pent Houses and pass such other order or orders. Counsel for the Petitioners: MR.A.V.SESHA SAI Counsel for the Respondent No.: MR.N.RANGA REDDY (SC FOR MPL. CORP. VSP) The Court made the following : ORDER: This writ petition has been filed by the petitioners, who are two in number, assailing the inaction of the 1st respondent-Corporation in removing the unauthorized constructions made by the respondents 2 and 3. 2. Y.Babu Rajendra Prasad, who is the 1st petitioner in the writ petition, has sworn to the writ affidavit. It is averred in the writ affidavit that the petitioners 1 and 2 are the owners and possessors of residential flat bearing Nos.G-4 and C-2 of Uma Maheswari Garden Apartments comprising S.Nos.74, 77A and 77C, situated in Waltair Ward, Waltair Uplands, Visakhapatnam, having purchased under registered sale deeds dated 12.09.2002 and 14.06.2002 respectively from the respondents 2 and 3. Respondents 2 and 3 obtained permission for construction of ground plus four upper floors. The respondents 2 and 3 constructed two pent houses in the fifth floor contrary to the approved plan. The petitioners made representations to the 1st respondent- Corporation on 08.09.2007, 11.09.2007 and 17.09.2007 with regard to the unauthorized constructions made by the respondents 2 and 3. But, so far no action has been taken by the 1st respondent-Corporation against the respondents 2 and 3 with the regard to the unauthorized constructions made by them. 3. When the writ petition came up for admission, the learned Standing Counsel appearing for the 1st respondent-Corporation takes notice. 1st respondent-Corporation filed counter-affidavit. Notice sent to the respondents 2 and 3 returned un-served with an endorsement ‘addressee refused’. Hence, notice to respondents 2 and 3 deemed to have been served. 4. Counter-affidavit filed by the 1st respondent-Corporation, in brief, is: The respondents 2 and 3 put up constructions in deviation of the sanctioned plan in respect of the setbacks, coverage and F.S.I. In addition to the above deviations, respondents 2 and 3 constructed two pent houses in the 5th floor under the shade of interim orders passed by IV Additional Senior Civil Judge, Visakhapatnam in I.A.N.883/2003 in O.S.No.782 of 2003. The 1st respondent-Corporation is taking steps to get the said interim order vacated. Para.5 of the counter-affidavit needs to be noted and it is thus: “5. In this connection the first Respondent Corporation submits that while executing the work, the respondents 2 & 3 have deviated the sanctioned plan in respect of setbacks, coverage and F.S.I. In addition to the above deviations the respondents 2 & 3 unauthorisedly constructed two pent houses in fifth floor under the shade of interim orders passed by the Hon’ble IV Additional Senior Civil Judge, Visakhapatnam in I.A.No.883/2003 in O.S.No.782/2003 the matter is still pending and the interim orders are still in force. The respondent Corporation also addressed a letter to the Local Municipal Standing Counsel with a request to take appropriate steps for vacating the interim order against the Corporation so as to take further action against the unauthorized two pent houses. The application filed by the Respondent Corporation for vacation of interim orders is numbered and stands posted to 28.11.2007. Further the respondent corporation also issued notice u/s. 452 of HMCA, 1955 in U.C.No.2/07/ACP-III, Dt.3.9.07 calling upon the owner to show cause as to why action shall not be taken by granting stipulated time to comply the Notice. But the owner refused to receive the notice. Hence, the same was served by way of substitute service by affixing the same on the premises. A copy of the Notice also sent through courier. Hence, it is very clear that the first Respondent Corporation has taken necessary steps for vacating the interim orders. As such the allegations of the petitioner that the Respondent Corporation failed initiate any action is absolutely false and untenable. Therefore, there is no violation of Article 14 of Constitution of India on the part of the Respondent Corporation. Knowing very well about this said fact, the petitioners intentionally suppressed the same while presenting the writ petition. Hence, the Writ itself is liable to be dismissed on the sole ground of “suppression of material facts”. All these allegations might have been motivated by the petitioner for the purpose of this Writ Petition to satisfy the Hon’ble High Court in getting anticipatory orders.” 5. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for the 1st respondent-Corporation. 6. The factual matrix narrated above indicate that the first respondent- Corporation has already initiated proceedings against the respondents 2 and 3 with regard to the unauthorized constructions made by them and thereupon the respondents 2 and 3 approached the civil Court and obtained interim orders. 7. In that view of the matter, I deem it appropriate to dispose of the writ petition at the admission stage directing the 1st respondent-Corporation to continue the further proceedings pursuant to the notice issued under Section 452 of the Hyderabad Municipal Corporation Act, 1955 after disposal of the civil suit filed by the respondents 2 and 3 or vacation of the interim order. The petitioners are at liberty, if so advised, to get themselves impleaded as parties to the civil suit to get the proceedings therein expedited. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:10th July, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RS}