IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL No.1206 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 09/06/2008 in WP NO : 623 OF 2007 on the file of the High Court.) Between: Sri A. Bhoopal Reddy, s/o. Sri A. Bhim Reddy, R/o. 1-3-149/1, Shastrinagar, Nirmal, Adilabad District. ..... APPELLANT AND 1 Commissioner, Nirmal Municipality, Nirmal, Adilabad District. 2 Town Planning & Building Officer, Nirmal Municipality, Nirmal, Adilabad District. 3 Sri A. Padmanabh Reddy, S/o. Sri A. Rajeswar Reddy, R/o. Adjacent to 1-2-388, Behind Zilla Parishad, Executive Engineer's Office, Mahadev Sitaram Petrol Bunk, Nirmal, Adilabad District. .....RESPONDENTS Counsel for the Appellant:MR.T.S.PRAVEEN KUMAR Counsel for Respondents 1&2: MR.POLISETTY RADHA KRISHNA(SC FOR MPL(TA)) Counsel for Respondent No.3: MR. V.M.M.Chary The Court made the following : JUDGMENT: (Per CVNR, J) At the interlocutory stage, the writ appeal is taken up for hearing and disposal with the consent of the learned counsel for the parties. The appellant in this writ appeal is the petitioner in W.P.No.623 of 2007, filed for a writ of mandamus to declare the inaction of respondents 1 and 2 in acting on representations, dated 24.11.2006 and 29.11.2006 filed by him as illegal and arbitrary. The appellant sought for a direction to the said respondents to ensure that respondent No.3 constructs building strictly in accordance with the sanctioned plan. The appellant and respondent No.3 are neighbours. The appellant gave representation, dated 24.11.2006 to respondents 1 and 2 complaining that respondent No.3 is proceeding with the construction in violation of the sanctioned plan. This was followed by another representation, dated 29.11.2006. As no action was forthcoming from respondents 1 and 2, the appellant filed the above mentioned writ petition. In the counter-affidavit filed by respondents 1 and 2, it is stated that respondent No.1 passed a provisional order under Section 228 of the Andhra Pradesh Municipalities Act, 1965 (for short ‘the Act’) and also a final order under Section 228(3) of the Act directing respondent No.3 to stop further constructions and that they have later filed O.S.No.8 of 2007 on the file of the Junior Civil Judge, Nirmal, seeking permission for demolition of unauthorized constructions made by respondent No.3. In the counter-affidavit filed by respondent No.3, he inter alia stated that he filed O.S.No.172 of 2006 in the Court of Junior Civil Judge, Nirmal, for injunction against the appellant and persuaded the said Court to grant an ad interim order on 13.11.2006. The learned Single Judge having considered the rival pleadings, disposed of the writ petition with a direction to respondents 1 and 2 to take further action in pursuance of the order of confirmation passed under Section 228(3) of the Act as soon as the suits were disposed of. At the hearing, Sri T.S.Praveen Kumar, learned counsel for the appellant, submitted that when once respondents 1 and 2 initiated action and passed final order under Section 228(3) of the Act, there was no necessity for them to file a civil suit for permission to demolish the illegal structure. He, therefore, submitted that the condition rider added by the learned Single Judge in the order that respondents 1 and 2 shall take action after disposal of the suits, cannot be sustained. Sri Pollisetty Radhakrishna, learned counsel for respondents 1 and 2 did not dispute existence of power in respondents 1 and 2 to take action without reference to the directions of the civil Court. Sri V.M.M.Chary, learned counsel for respondent No.3 submits that his client filed O.A.No.172 of 2006 against the appellant for injunction and that the civil Court granted injunction. We have carefully considered the submissions of the learned counsel for the parties. Section 228 of the Act reads as under: Demolition or alteration of building work unlawfully commenced, carried on or completed:- “(1) If the Commissioner is satisfied- (i) that the construction or reconstruction of any building or well- (a) has been commenced without obtaining the permission of the Commissioner or the Chairperson, as the case may be, or where an appeal has been made to the council, in contravention of any order passed by the council; or (b) is being carried on, or has been completed, otherwise than in accordance with the plans or particulars on which such permission or order was based; or (c) is being carried on, or has been completed, in breach of any of the provisions of this Act or of any rule or bye- law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or (ii) that any alterations required by any notice issued under Section 217 have not been duly made; or (iii) that any alteration of or addition to any building or any other work made or done for any purpose into or upon, any building, has been commenced or is being carried on or has been completed in breach of Section 227, he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as in the opinion of the said officer, has been unlawfully executed or to make such alterations as may, in his opinion, be necessary to bring the work into conformity with the Act, bye- laws, rules, direction or requisition as aforesaid, or with the plans and particulars on which such permission or order was based; and may also direct that until the said order is complied with, the owner or builder shall refrain from proceeding with the building or well”. (2) The said officer shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well, together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (3) If the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as he thinks fit to make, and such order shall ten be binding on the owner. A reading of the above reproduced provision clearly shows that the Municipality is vested the power of making a provisional order requiring the owner or the builder to demolish the work done or so much of it as in the opinion of the said officer, has been unlawfully executed or to make such alterations as may, in his opinion, be necessary to bring the work conformity with the Act, bye-laws, rules or etc. After confirmation of the provisional order under sub-section (3) of the Act, if the person, who raised illegal constructions, failed to remove the same, the municipality is entitled to demolish the illegal structures on its own. Therefore, in our opinion, there was no necessity for respondents 1 and 2 to file a civil suit seeking permission of the civil Court. Such a conduct on the part of respondents 1 and 2 appears to us to be suspicious, to say the least. In this view of the matter, the direction of the learned Single Judge that respondents 1 and 2 shall take action after disposal of the civil suits cannot be sustained. As regards the civil suit filed by respondent No.3, it is not in dispute that respondents 1 and 2 are not parties thereto. The only remedy left to respondent No.3 is to question the order passed under Section 228(3) of the Act by respondents 1 and 2, if he feels aggrieved, before appropriate forum. As the suit filed by respondents 1 and 2 is wholly misconceived, they cannot stall further action consequent on passing of order under Section 228(3) of the Act by taking shelter under the pendency of suit, which, as noted above was quite unnecessary. The order of the learned Single Judge is therefore modified by deleting the words ‘‘as soon as the suits are disposed of’’. Respondents 1 and 2 are directed to take action against the illegal construction subject to the right of respondent No.3 to avail appropriate remedy. The Writ Appeal is accordingly, allowed to the extent indicated above. As a sequel to disposal of the writ appeal, WAMP No.2350 of 2008 filed by the appellant for interim relief is disposed of as infructuous. __________________ T.MEENA KUMARI, J ________________________ C.V.NAGARJUNA REDDY, J Date:02.02.2009 sj