THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.1702 OF 2010 O R D E R: This writ petition is filed seeking to issue writ of Mandamus declaring the action of respondent No.1 in not taking action on the representations submitted by the petitioners for not removing the illegal construction made by respondent No.2 in part of Plot No.884 in S.No.618/2 of Bit-I Nellore Municipal Corporation as illegal and arbitrary and consequently direct respondent No.1 to consider the representations of the petitioners and remove the illegal construction made by respondent No.2 in the said premises. 2. The brief facts, stated in the affidavit filed in support of the writ petition, are that one Sri M.Nagesh Reddy purchased house Plot Nos.869, 870, 871, 884 and 885 in the aforementioned premises to an extent of 266.22 ankanams. The said Nagesh Reddy applied for construction of apartment in the above said house plots. The building plan was approved by respondent No.1 for the total site area of 266.22 ankanams vide proceedings, dated 14.05.1997, under Building Plan No.29/97. On the eastern side of the apartment, there is 60 feet road namely Kondayapalem Donka Road. For ingress and egress into the apartment, six gates were open towards 60 feet road. At the time of construction of apartment, an extent of 19.80 Ankanams were set apart as front open space for the purpose of parking and vastu and the said open space is part and parcel of building plan No.29/97. The builder fraudulently sold the said front open space to his father-in-law P.Radhakrishna Reddy on 14.11.1997, who in turn sold an extent of 11.11 ankanams to Smt N.Sujana leaving the remaining 8.69 ankanams. She sold the said site to respondent No.2 on 10.04.2002. After knowing these transactions, petitioners filed O.S.No.103 of 2009 on the file of V Additional District Judge, Nellore against respondent No.2 and others to declare that the sale deeds executed in their favour as null and void, and the same is pending. Respondent No.2, without submitting the building plan, started construction of a building (G+3) in the site admeasuring an extent of 74.31 sq.mts in the site, which was set apart as front open space in the said building plan. The building under construction has no approved plan and respondent No.2 claim that no plan is required for site area upto 100 sq.mts as per G.O.Ms.No.423 M.A. & U.D., dated 31.07.1998. The exceptions provided under the said G.O. are only for individual residential buildings in the plot upto 100 sq.mts. Respondent No.2 purchased the said site even after issuance of the said G.O. The site in which respondent No.2 is constructing the building is part of Plot No.884 in Sy.No.618/2 in the aforementioned premises. He has not obtained any permission from the Director of Town Planning. Moreover, Vaibhav Apartment Plan was sanctioned for the entire extent of Plot No.884 along with the other plots. Respondent No.2 made construction of the building in total deviation of the Rules by encroaching into the land. Though the petitioners made several representations to respondent No.1, no action has been taken by him and hence, they filed the present writ petition. 3. Respondent No.1 filed counter-affidavit stating that respondent No.2 submitted plans seeking permission for construction of a building consisting of Ground Floor and First Floor in B.A.No.829/2009, but the same was returned unapproved, as the proposals are in violation of Building Rules. Respondent No.2 commenced construction and constructed the building with RCC columns and a slab in an extent of 74.31 Sq.Mts in part of Plot No.884 in L.P.No.101/95 without obtaining permission from the Corporation for which the Town Planning staff of the Corporation stopped the construction work and issued a notice under Sections 461 and 452 of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’). Action will be initiated for unauthorized constructions and deviations as per law against respondent No.2 and prays to dismiss the writ petition. 4. Respondent No.2 filed counter-affidavit stating that he did not proceed with any construction after passing of the interim order, dated 03.03.2010 by this Court and that the allegation of the petitioners that his constructions are illegal are not true and hence, prays to dismiss the writ petition. 5. Learned counsel for the petitioners stated that respondent No.2 made illegal constructions for which, several representations were made by the petitioners to respondent No.1, but respondent No.1 has not taken any action and hence, prays to issue a direction to respondent No.1 to consider the representations of the petitioners. 6. On the other hand, learned Standing Counsel appearing for respondent No.1 stated that the petitioners have taken permission for construction of the apartment to an extent of 1781.37 sq.mts.; but respondent No.2 is making constructions illegally in an extent of 74.31 sq.mts. without obtaining permission from the Corporation. 7. Learned counsel for respondent No.2 contended that as the area of the plot in which the construction is being made is less than 100 sq.mts., no permission from the Corporation is required and hence, prays to dismiss the writ petition. 8. It is not in dispute before this Court that respondent No.2 constructed RCC columns for ground plus three floors and laid the RCC with stair case and brick work, but he stopped the construction after stay was granted by this Court. Respondent No.2 submitted the plans to respondent No.1, but they were returned for certain objections. But without submitting the plans, respondent No.2 started the construction. Therefore, a notice under Sections 461 and 452 of the Act has been issued. Even though no permission is required for construction of the building in a site where the area is less than 100 sq.mts., at the same time, the building must be constructed in accordance with the building bye laws. Whether the building in question is being constructed by respondent No.2 in accordance with the building bye laws or not has to be considered by respondent No.1. Therefore, respondent No.1 is directed to take appropriate decision after giving a reasonable opportunity to the petitioners as well as respondent No.2 and pass necessary orders in accordance with law. 9. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs. _______________ K.C.BHANU, J 29th December, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.1702 OF 2010 Date:29.12.2011 AMD