M/S. Hayagrreva Farms And ... vs The State Of Andhra Pradesh
2023 Latest Caselaw 1137 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                WRIT PETITION No.4596 of 2023

ORDER:-

      This Writ Petition for a mandamus is filed to declare the

action of respondent Nos.2 and 3 in issuing the impugned Stop

Work Order, dated 15.02.2023, under Section 450 of the HMC

Act, 1955, (for short "the Act") as illegal and arbitrary and

consequently prayed to set aside the Stop Work Order.

2. Heard learned counsel for the petitioner, learned

Assistant Government Pleader for Municipal Administration &

Urban Development appearing for respondent No.1 and Sri K.

Madhava Reddy, learned Standing Counsel for GVMC appearing

for respondent Nos.2 and 3.

3. The petitioner is a partnership firm in the name and style

"M/s Hayagreeva Farms & Developers" which is a registered

firm under the Partnership Act. Earlier the State has conveyed

the land in an extent of Ac.12.51 cents in Endada Village,

Visakhapatnam Rural, under a registered deed of conveyance,

dated 04.10.2010 to the petitioner. Possession of the land was

also delivered to the petitioner under the aforesaid deed.

Thereafter, it appears that the petitioner has obtained a building

permission from respondent No.2 and has been constructing

villas and apartments in a gated community. Subsequently, the

State has initiated proceedings to resume the land in question.

The petitioner has challenged the same before the Common

High Court for the State of Telangana and Andhra Pradesh in

W.P.Nos.36413 of 2014 and W.P.No.26653 of 2015. Both the

Writ Petitions were allowed as per order, dated 19.12.2017,

setting aside the proceedings of the District Collector resuming

the said land and directed the respondents therein to restore

the possession of the land to the petitioner and also further

directed the District Collector to issue NOC to the petitioner.

The State has challenged the said order of the learned Single

Judge before a Division Bench. The said Writ Appeal in

W.A.Nos.363 and 370 of 2018 came to be dismissed confirming

the order of the learned Single Judge and also confirming the

direction to issue NOC. The Division Bench incidentally held

that mere grant of NOC by the District Collector does not

obligate the GVMC to grant permission for construction, as any

application, seeking permission for construction, is required to

be examined by the municipal authorities in accordance with

the provisions of GHMC Act.

4. After the said litigation came to an end, pursuant to the

above direction, it appears that NOC was issued to the

petitioner and building permission was also granted by the 2nd

respondent for construction of the said villas and apartments.

While the said construction is in process, earlier notice under

Section 450 of the Act was issued to the petitioner to stop work

by pointing out certain shortfalls. That was again questioned by

the petitioner before this Court in W.P.No.194 of 2022.

Considering the earlier judgment of High Court of Telangana

rendered in Kommareddy Sravan Kumar v. State of

Telangana1 wherein it is held that as per settled law that as

long as permission granted in favour of a party intact, there

cannot be any direction, pending enquiry under Section 450 of

the Act to stop construction, this Court has disposed of the said

Writ Petition with a direction to respondent No.2 therein to

consider the explanation submitted by the petitioner to the

show cause notice issued by the municipal authorities and pass

appropriate orders according to law within two weeks and till

the said explanation is considered and final orders are passed,

the Court ordered for suspension of the Stop Work Order.

Further, the Court held that if the petitioner proceeds with any

further construction, it will be at his own peril and ultimately, if

the permission is rejected by the Municipal Corporation, that

the Municipal Corporation is at liberty to demolish the

construction of the building by following due process of law.

5. It appears that pursuant to the said direction of this

Court, the explanation of the petitioner was considered and final

order was passed, which is now placed at page No.212 of the

material papers of the Writ Petition. According to learned

counsel for the petitioner, the final order is vague and it does

not specifically hold that there was any shortfall in the

construction by deviating from the building permission.

2020 SCC OnLine TS 2907

6. While so, again the impugned notice under Section 450 of

the Act to stop work came to be passed by respondent No.2 on

two grounds. i) that NOC from the District Collector is not

placed on record and ii) that the petitioner has to provide 60 ft.

road as per the master plan, dated 08.11.2021.

7. As regards the first ground of producing NOC is

concerned, it is stated that the petitioner has already produced

NOC that was issued by District Collector on 08.06.2018 itself.

Further the Division Bench of this Court while disposing of the

Writ Appeal, clearly held that mere issuance of NOC does not

obligate the Corporation from considering the application of the

building permission. Therefore, prima facie the said ground is

not a valid ground for issuance of Stop Work Order. It does not

amount to violation of building permission. As regards the

second ground is concerned, the very issuance of notice under

Section 450 of the Act to stop work suffers from the same

infirmity as pointed by this Court in W.P.No.194 of 2022. This

Court already held as discussed supra on the basis of the law

laid down in Kommareddy Sravan Kumar v. State of

Telangana2 that as per settled law that as long as permission

granted in favour of the party is intact that there cannot be any

direction pending inquiry under Section 450 of the Act to stop

the construction. Therefore, the impugned notice suffers from

2020 SCC OnLine TS 2907

the said infirmity as pointed out earlier in the previous order

passed in the Writ Petition.

8. In the said facts and circumstances of the case, this Writ

Petition is disposed of with a direction to the petitioner to

submit his explanation to the impugned notice within two weeks

from the date of this order. After the said explanation is

submitted, respondent No.2 is directed to consider the

explanation and pass a final order on it within three weeks from

the date of submitting the said explanation. Till the said

exercise is completed as directed supra, the impugned notice

under Section 450 of the Act to stop work, is suspended. But it

is made clear that any further construction by the petitioner

would be subject to the final order that may be passed by

respondent No.2 and it would be at the own peril of the

petitioner. No costs.

Miscellaneous petitions, if any pending, in the Writ

Petition, shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 24.02.2023

Note: Issue CC by 27.02.2023 B/o AKN

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

WRIT PETITION No. 4596 of 2023

Date: 24-02-2023

AKN