THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.2618 OF 2010 ORDER: This writ petition is filed seeking to issue Writ of Mandamus declaring the proceedings of the 1st respondent in U.C.No.1/2010/BO1, dated 11-01-2010 and the Provisional Notice in U.C.No.1/2010/BO1, dated 02-01-2010 including the direction to demolish petitioner’s premises bearing Door No. 9-3-3/2, situated over an extent of 49.29 sq. meters, Ward No.12, Yernagudem road, Nidadavolu Municipality as illegal and void and consequently direct the 1st respondent not to interfere with the construction of the building. 2. It is stated in the affidavit filed in support of the writ petition that the petitioner is the absolute owner of a tiled house having purchased the same for valuable consideration under a registered sale deed. As the said house was in dilapidated condition, he applied for permission to 1st respondent for demolition of the same and for constructing a small residential building consisting of two rooms i.e. one room in the ground floor and another room in the first floor and 1st respondent granted permission on 18-08-2009 and thereafter, he started construction as per the approved plan. While so, on 04-01-2010 staff of 1st respondent called him and asked him to sign on two papers putting the dates as 04-01-2010 and 28-01-2010 on two papers. As he is an illiterate, he requested the staff to explain the contents, but they refused to do so. Thereafter, he came to know that one paper is provisional order, dated 02-01-2010 issued under Section 217 (1) (2) of the A.P. Municipalities Act, 1965 (for short ‘the Act’) directing him to stop construction stating that he contravened the conditions of the sanctioned plan in leaving the places on northern and southern sides. The proceedings, dated 02-01-2010 refers to a proceeding, dated 21-12-2009 wherein the notice said to have been issued. It is further stated that no notice was serviced upon him prior to 28-01-2010 and only provisional order and confirmation order were served on him on 28-01-2010. On coming to know about the contents of the papers, he submitted explanation and appealed to the Commissioner bringing to his notice that he did not receive any notice prior to passing orders under Section 228 (3) of the Act and further stated that nobody from the Municipality visited the premises and no measurements were taken. He also requested them to place the representation before the council, but the 1st respondent office has informed that all the orders were passed with the approval of council only. Therefore, action of the respondents in passing the orders, dated 02-01-2010 and 11-01-2010 directing him to demolish the building without any notice is illegal. Hence, the writ petition. 3. The 1st respondent filed counter-affidavit denying the averments made in the writ petition, but admitted about the application made by the petitioner for permission to construct a building and permission granted by the Municipality. The petitioner has not constructed the building in accordance with the permission granted. He commenced the construction in deviation to the actual approval given and deviated in respect of setbacks. For the violations, notice under Section 217 (1) (2) of the Act was issued directing him to stop construction and rectify the defects and to remove the deviations as pointed out and inform the same to Municipality. But the petitioner without preferring to comply with the notice, continued with further construction. In pursuance of indifferent attitude of the petitioner, further notice under Section 228 (3) of the Act was issued directing him to stop construction and remove the deviation portion or else prosecution action will be taken under the provisions of Section 340 of the Act. The provisional order and confirmation order were served on the petitioner and the same were acknowledged by him. The petitioner is unnecessarily making allegations against the staff of Municipality. The action taken by the municipality is strictly in accordance with rules and procedure and it is the responsibility of the Municipality to enforce the building rules and bring the construction in conformity with the sanction and approval given. In the course of enforcement, necessary notices and final order were issued for stopping the construction and removal of deviations. Hence, there is no irregularity of whatsoever in any manner. Hence, 1st respondent prays to dismiss the writ petition. 4. Learned counsel appearing for the petitioner contended that no order was passed under Section 228 (1) of the Act, that if the constructions are made contrary to the sanctioned plan, a preliminary order has to be passed, that without passing a preliminary order under Section 228 (1) of the Act, the respondents directly passed an order under Section 228 (3) of the Act and hence, he prays to allow the writ petition. 5. On the other hand, learned standing counsel appearing for the respondents contended that the impugned order was passed in accordance with law and the same needs no interference by this Court. 6. The factual matrix is not in dispute. The petitioner said to have made certain constructions contrary to the sanctioned plan. Therefore, in the first instance, the Municipality issued a notice under Section 217 (1) (2) of the Act on 02-01-2010 directing him to remove the constructions, which are in deviation. Thereafter, impugned notice was issued on 11- 01-2010 directing him to remove the constructions. In the entire counter- affidavit, it is not stated that notice as contemplated under Section 228 (1) of the Act was issued. A preliminary order has to be passed under Section 228 (1) of the Act. Thereafter, if the owner fails to remove the constructions deviating from the sanctioned plan, then that order has to be confirmed under Section 228 (3) of the Act. But, the 1st respondent Municipality straightaway passed order under Section 228 (3) of the Act without passing any preliminary order as required under Section 228 (1) of the Act. Therefore, the impugned order is liable to be set aside. 7. Accordingly, the Writ Petition is allowed setting aside the impugned order. However, this order will not preclude the 1st respondent-Municipality in passing a preliminary order as required under Section 228 (1) of the Act. No order as to costs. --------------------- K.C.BHANU, J DATED: 16-11-2011 Hsd