Kota Lovananaji, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 5798 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               WRIT PETITION No.22840 of 2022

JUDGMENT:-

1.    Heard Sri A.Rama Krishna, learned counsel, representing

Sri V.Krishna Swaroop, learned counsel for the petitioner and

Sri V.Surya Kiran Kumar, learned counsel for the respondent

Nos.2 and 3 and Sri G.Naresh Kumar, learned counsel,

representing Sri M.Manohar Reddy, learned Standing Counsel

for the respondent No.4.

2. With the consent of the learned counsels for the parties,

the petition is being disposed of at this stage finally.

3. This writ petition under Article 226 of the Constitution of

India has been filed for the following relief:-

"I therefore pray that this Hon'ble Court may be pleased to issue a writ or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.3 in issuing Lr.No.SW0/1137/2022/0021 Dated 09.06.2022, whereby directing the petitioner to stop further construction immediately and threatening to demolish the construction carried out by the petitioner in respect of land site admeasuring 610.47 Mts in RS.No.233-1B, premises No. 1-1, ward No.5, Teruvupally village, Yelamanchili Mandal and Municipality, Anakapally District without any basis as illegal, arbitrary, unconstitutional, without following

due procedure of law, violative of principles of natural justice besides voilative of Article 14 and 300-A of the Constitution of India contrary to the provisions of HMC Act and consequently set-a-side the same by directing the respondents Nos.2 to 4 not to interfere with the ongoing construction and existing structures of the above petitioner's property and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

4. The petitioner has challenged Lr.No.

SWO/1137/2022/0021, dated 09.06.2022, whereby the

petitioner has been directed by the respondent No.3 to stop

further construction until further orders on the ground that the

building permission was obtained through online DPMS by

suppressing certain facts. In the column of "Inspection Remarks

and Recommendations Shortfall", it is mentioned that 30 mts

wide Water Body Buffer has been observed along with the

Sarada River and 2 mts Water Body Buffer has been observed

along the gedda in the Sanctioned Master Plan for the year

2014. As per the stop work order dated 09.06.2022 the

permission for construction was granted as this fact was not

disclosed that the construction area falls within the buffer zone

and when the same came to the notice the order dated

09.06.2022 has been passed.

5. Sri V.Surya Kiran Kumar, learned counsel for the

respondent Nos.2 and 3 submits that in view of Rule 54 (11) (a)

of the AP Building Rules 2017, no building/development activity

shall be allowed in the bed of water bodies like river or nala and

in the Full Tank Level (FTL) of any lake, pond, cheruvu or

kunta/shikam lands and as per clause (b), the above water

bodies and courses shall be mentioned as Recreational/Green

Buffer Zone and no building activity shall be carried out within:

(i) 50m within the limits of the Local Authorities. The

Boundary of the river shall be as fixed and certified by

The Irrigation Department and Revenue Department.

(ii) 30m from the FTL boundary of Lakes/Tanks/Kuntas

of area 10Ha and above.

(iii) 9m from the FTL boundary of Lakes/Tanks/Kuntas

of area 10Ha/shikam lands;

(iv) 9m from the defined boundary of Canal, Vagu, Nala,

Storm Water Drain of width more than 10m.

(v) 2m from the defined boundary of Canal, Vagu, Nala,

Storm Water Drain of width up to 10m.

6. Sri V.Surya Kiran Kumar submits that the petitioner

should have approached the respondent No.3 raising his

grievance but has approached this Court directly.

7. Learned counsel for the petitioner submits that the

permission was granted on the petitioner's application who did

not conceal or suppress any fact. He further submits that the

construction at the place the sanction has been granted, does

not fall within the 30 mts of water body as mentioned in the

stop work order, but lies beyond the prescribed distance. There

is immediate threat of demolition.

8. This dispute whether the area over which the petitioner

was granted permission for building construction falls within 30

mts wide Water Body Buffer or not, is a disputed question of

fact which, at the first instance, cannot be determined by this

Court in the exercise of writ jurisdiction.

9. However, it is for the respondent No.3 to consider the

petitioner's plea as raised in this writ petition, after affording

opportunity of hearing to the petitioner, if it does or does not fall

within the prohibited area of water buffer zone as per Rule 54

(11) and such other rule, as may be applicable.

10. The writ petition therefore is being disposed of finally,

providing that the petitioner, if so advised, may approach the

respondent No.3 by filing representation/reply raising his

grievance against the stop work order impugned herein, within

a period of three (03) weeks from today along with copy of this

order, and if the petitioner so approaches, the respondent No.3,

shall, within a further period of three (03) weeks take

appropriate decision in accordance with law, on such

representation/reply.

11. Till the decision is taken by respondent No.3 or for a

period of six (06) weeks from today whichever is earlier, the

existing constructions shall not be demolished.

12. The petitioner shall also not raise any further

construction and shall comply with the stop work order dated

09.06.2022, till final decision is taken as aforesaid.

13. The impugned order, shall abide by the final order to be

passed by the respondent No.3.

14. The writ petition is disposed of finally with the above

observations & directions.

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 30.08.2022

NOTE:-

Issue C.C. by 06.09.2022 B/o SCS

455554646

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.22840 of 2022

Date: 30.08.2022

Scs