IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 4863 of 2003 Between: 1 G. Subba Ratnamma W/o. Venkata Subbaiah D.No.518, Nearest Door No.15-4-20/1, Ward No.25 of Bapatla Town, Guntur District. 2 G. Rama Sitamma W/o. G. Subba Rao D.No.518, Nearest Door No.15-4-20/1, Ward No.25 of Bapatla Town, Guntur District. 3 G. Subba Rao S/o. Venkata Subbaiah D.No.518, Nearest Door No.15-4-20/1, Ward No.25 of Bapatla Town, Guntur District. ..... PETITIONERS AND Bapatla Municipality Rep., by its Commissioner, Bapatla, Guntur District. .....RESPONDENT 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 a Writ of Mandamus or any other appropriate writ declaring that the action of the respondent contained in the Notice in Rc.No.769/2003 dated 12.3.2003 directing demolition of the building complex of the petitioners under Section 340 of the A.P. Municipalities Act, 1965 is arbitrary, illegal and ultra vires the provisions of the Act and direct the respondent to forbear from demolition of any portion or part of the building complex of the petitioners by name Tirumala Towers Apartments in D.No.51, Bapatla Town, Guntur District. Counsel for the Petitioner: MR.V.VENKATARAMANA Counsel for the Respondent : MR.S.NAGESWARA REDDY The Court made the following : ORDER : In this Writ Petition the petitioners have questioned the validity of the notice, dated 12-03-2003, issued by the respondent municipality. Earlier, the petitioners herein filed W.P.No.1736 of 2003 seeking directions by way of Mandamus to the respondent herein to forbear from resorting to demolition of the building complex of the petitioners without following the due procedure of law. This Court by order, dated 14-02-2003, directed the respondent herein to take steps by following the procedure contemplated under law and issue notice before taking any action of demolition. By the impugned notice, on the ground that structures raised in cellar portion are in deviation to the sanctioned plan, petitioners were ordered to be removed such structures within a period of three days. In the impugned notice reference is made to Section 340 of the A.P. Municipalities Act, 1965 (for short, ‘the Act’). In the Writ Petition it is the grievance of the petitioners that the impugned notice is not preceded by any earlier notice giving opportunity. It is submitted that the notice impugned is not only in violation of the directions of this Court earlier, but also the provisions of the A.P. Municipalities Act, 1965. If constructions are made contrary to the sanctioned plan, Municipal Commissioner is empowered to order removal in exercise of powers under Section 228 of the Act. Before issuing directions under Section 228 (2) and (3) of the Act, there is a requirement to issue provisional order under Section 228 (1) of the Act, requiring the owner of the building to demolish the building, which is unlawfully executed, contrary to the sanctioned plan. Though it is a specific case of the petitioners that no such opportunity is given, no counter-affidavit is filed controverting the allegations made by the petitioners. At the stage of admission, this Court granted interim order as early as 20th March, 2003 and the said orders are in force during the pendency of the Writ Petition. Even on a perusal of the impugned proceedings, it is clear that no reference is made to any provisional order as contemplated under Section 228 (1) of the Act. In the absence of any counter-affidavit and as there is no reference to any provisional order in the impugned proceedings, as contemplated under Section 228 (1) of the Act, I dispose of the Writ Petition setting aside the Notice dated 12-03-2003 issued in Rc.No.769 of 2003 by the respondent. However, it is made clear that if any constructions are there, as alleged by the respondent, in the cellar portion, contrary to the sanctioned plan, this order will not preclude the respondent to issue provisional order under Section 228 (1) of the Act and take further actions in accordance with law. Accordingly, the Writ Petition is disposed of. No order as to costs. ___________________ R.SUBHASH REDDY, J. 30th June, 2009. skmr