THE HONOURABLE SRI JUSTICE N.V. RAMANA WRIT PETITION No.12992 of 2009 DATED: 06.10.2009 Between: Gavini Rajendra Rao and another .. Petitioners And Government of Andhra Pradesh, Rep. by its Principal Secretary, Municipal Administration Department, Secretariat Buildings, Hyderabad, and another. .. Respondents ORDER: Petitioners, represented by their General Power of Attorney Holder Mr. Koduru Sambasiva Rao, are questioning the notice dated 23.06.2009 issued by the 2nd respondent- Commissioner, Tenali Municipality, Guntur District, whereunder the petitioners were directed to remove certain portions of the building constructed by them, as indicated therein, within seven days from the date of receipt of the notice, on the ground that those portions were constructed in deviation of the sanctioned plan. The petitioners state that they obtained permission from the 2nd respondent, for construction of a Community Hall in the premises situated in Ward No.1, Block No.9, T.S. No.192/1, 196/2, near Door No.11-2-3, Chenchupeta, Tenali, Guntur District. That in pursuance of the said permission, when they were constructing the Community Hall, the unofficial respondents alleging that the said construction is being made in deviation of the sanctioned plan and the area where the Community Hall is being constructed, is a residential area and that no commercial activity can be permitted therein, filed writ petition in W.P. No. 5117 of 2008 before this Court, and the same was dismissed, by order dated 22.12.2008. The petitioners state that the persons who filed the aforesaid writ petition are inimical towards them, and that they having failed in their attempt to stop the construction work, submitted a representation to the 2nd respondent Municipality, complaining that the constructions being made by the petitioners are in deviation of the sanctioned plan, and acting on the said representation, the 2nd respondent issued the impugned notice. The 2nd respondent Municipality filed counter-affidavit stating that the petitioners constructed the building in deviation of the sanctioned plan, in spite of the direction by this Court to strictly adhere to the sanctioned plan. Therefore, as per the orders of this Court, they have issued the impugned notice for removal of the deviated portions. Further, certain complaints were received about running of Kalyana Mandapam in the subject building, which is causing traffic problem in the vicinity, and in view of the same, the Municipality issued notice to the petitioners not to erect any temporary/permanent structures on the road margins at the time of meetings being conducted in the subject building and some of those structures were also removed by the Municipality. It is also stated that the petitioners have applied for regularization of the building on 29.04.2008 as per G.O.Ms.No.901 dated 31.12.2007, however, their request cannot be considered as the construction of the building has not been completed as on the cutoff date i.e. 15.12.2007. It is further stated that the petitioners have categorically stated in their affidavit filed in support of the writ petition that they will set right the variations, if any, but till today, they have not taken any action, and they are liable to remove the deviated portions at any rate. The case of the unofficial respondents i.e. respondents 3 and 4, who were impleaded on their filing an application, is that the petitioners obtained permission for construction of a Community Hall for the benefit of the residents of the locality; whereas they constructed Kalyana Mandapam, and running the same in the name and style ‘Padmavathi Kalyanamandapam’, and leased out the same to the deponent of the affidavit filed in support of the writ petition. It is their further case that the petitioners made constructions in deviation of the sanctioned plan, that the generator installed at the subject building has been causing noise pollution and generating heat, that the organizers of the Kalyana Mandapam are pumping the waste material into the open drainage, which is emanating fowl smell and creating unhygienic condition in the area, that at the time of marriages, the residents of the locality are not in a position to reach their houses due to traffic congestion, and, therefore, themselves and the local residents submitted representations to the 2nd respondent, pointing out the constructions made by the petitioners in deviation of the sanctioned plan and construction of Kalyana Mandapam for commercial use instead of Community Hall, pursuant to which the impugned notice is issued. Learned counsel for the petitioners, reiterating the case of the petitioners, submits that the petitioners have applied for regularization of the subject building and, therefore, it is not proper for the 2nd respondent to issue the impugned notice. On the other hand, the learned Standing Counsel appearing for the 2nd respondent advanced arguments supporting the impugned notice and while the learned counsel appearing for the unofficial respondents, reiterated the case of the unofficial respondents. There is no doubt that the petitioners obtained permission from the 2nd respondent for construction of a Community Hall. While the petitioners having obtained construction permission, were constructing the Community Hall, the unofficial respondents, complaining that the petitioners herein are constructing the Community Hall in deviation of the sanctioned plan, filed writ petition in W.P. No. 5117 of 2008. This Court by order dated 22.12.2008 dismissed the said writ petition, holding that the construction of Community Hall cannot be said to be a commercial activity, but however, it made clear that the petitioners herein shall strictly adhere to the sanctioned plan, and if any deviations are noticed, the same may be brought to the notice of the official respondents, who, in turn, shall immediately take necessary action. As the petitioners are said to have made constructions in deviation of the sanctioned plan, the 2nd respondent issued the impugned notice calling upon the petitioners to remove the constructions made in deviation of the sanctioned plan. Though the petitioners questioned the impugned notice contending that since the application filed by them for regularization of the subject building is pending consideration before the 2nd respondent, the impugned notice for removal of the deviated portions could not have been issued, the fact remains, it is the specific case of the official respondents that the application of the petitioners cannot be considered because the petitioners made constructions much after the cut off date, and thereafter, made the application for regularization. This stand taken by the official respondents is not disputed by the petitioners. On the other hand, it is the admitted case of the petitioners, that they have made constructions in deviation of the sanctioned plan, and this is evident from the very stand taken by them in the affidavit filed in support of the writ petition, wherein they have stated that they being the N.R.Is., don’t have the complete particulars of the constructions raised, however, they undertake to look into the matter deeply and set right the variations, if any, for if any damage is caused to the building constructed at a huge cost, they will suffer irreparable loss and hardship. Thus it is clear that the petitioners have themselves admitted that they made constructions in deviation of the sanctioned plan. The petitioners having themselves undertaken to remove the constructions, if any, made in deviation of the sanctioned plan, now cannot contend that since the application made by them for regularization of the constructions is pending, the official respondents could not have issued the impugned notice, and more so when it is the specific case of the official respondents that the petitioners are not entitled to regularization of the constructions made in violation of the sanctioned plan, because they were made much after the cut off date. Be that as it my, it is also the complaint of the unofficial respondents that the petitioners are using the subject building as Kalyana Mandapam, which is creating noise pollution, traffic congestion, drainage problem etc. in the area. This version of the unofficial respondents is also supported by the stand taken by the 2nd respondent in the counter, wherein they have stated that some complaints were received about running of Kalayana Mandapam in the subject building which is resulting in traffic problem in the vicinity, and that the Municipality have directed the petitioners not to erect any temporary/permanent structures on the road margins and have also removed some of those structures. Thus, from the above, that in spite of specific directions by this Court directing the petitioners to adhere to the sanctioned plan, they have made constructions in deviation of the sanctioned plan, and the petitioners not being entitled to regularization of the constructions made in deviation of the sanctioned plan since they have made the constructions much after the cut off date, no exception can be taken to the action of the 2nd respondent in issuing the impugned notice, directing the petitioners to remove the constructions made in deviation of the sanctioned plan. There is no merit in the writ petition, and the same is accordingly dismissed with a direction to the petitioners to remove the deviated portions, as indicated in the impugned notice, within a period of two weeks from today, failing which the 2nd respondent is at liberty to take necessary action, in accordance with law, for removal of those portions. No order as to costs. ____________________ JUSTICE N.V. RAMANA 6th October, 2009 IBL/KSR