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Andhra Pradesh High Court – Amravati
Banka Suresh Babu Yadav vs The State Of Ap on 30 June, 2025
APHC010321452025
IN THE HIGH COURT OF ANDHRA
PRADESH
[3460]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY,THE THIRTIETH DAY OF JUNE
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO: 16018/2025
Between:
1. BANKA SURESH BABU YADAV, S/O KONDAIAH, AGED
57, R/O D.NO. 15/465, VENKATRAM PURAM, REVENUE
WARD 15, NELLORE, SPSR NELLORE DISTRICT.
2. THANIKONDA SHARMILA KRISHNA,, W/O BANKA
SURESH BABU YADAV, AGED 51, R/O D.NO. 15/465,
VENKATRAM PURAM, REVENUE WARD 15, NELLORE,
SPSR NELLORE DISTRICT.
...PETITIONER(S)
AND
1. THE STATE OF AP, REP. BY ITS PRINCIPAL
SECRETARY, DEPARTMENT OF MUNICIPAL
ADMINISTRATION AND URBAN DEVELOPMENT,
SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATI.
2. THE NELLORE MUNICIPAL CORPORATION, REP. BY ITS
COMMISSIONER, NELLORE.
3. THE COMMISSIONER, NELLORE MUNICIPAL
CORPORATION.
4. THE DEPUTY CITY PLANNER, NELLORE MUNICIPAL
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CORPORATION, NELLORE.
...RESPONDENT(S):
Petition under Article 226 of the Constitution of India praying
that in the circumstances stated in the affidavit filed therewith, the
High Court may be pleased topleased to issue Writ of Mandamus,
declaring action of the 3rd respondent in issuing final order dt.
27-6-2025 vide Roc No. 09/1031/NLR/UC/2024 and illegally
taking steps to demolish the Petitioners property situated at
D.No. 15/465, Venkatram Puram, Ward No. 15, Nellore, SPSR
Nellore District as wholly illegal, arbitrary, unlawful and in
violation of principles of natural justice and Articles 14 and 300A
of the Constitution of India and consequently set aside the
impugned final order dated 27-6-2025 vide Roc No.
09/1031/NLR/UC/2024 and to pass
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the
circumstances stated in the affidavit filed in support of the
petition, the High Court may be pleased pleased to stay all further
proeeedings pursuant to final order dated 27-6-2025 vide Roe
No. 09/1031/NLR/UC/2024 by 3rd respondent pending disposal
of the present writ petition and pass
Counsel for the Petitioner(S):
1. P VIVEK
Counsel for the Respondent(S):
1. GP FOR MUNCIPAL ADMN URBAN DEV
The Court made the following:
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THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
W.P.No.16018 of 2025
O R DE R:
The present writ petition is filed seeking to declare the
order dated 27.06.2025 issued by Respondent No.3 vide
Roc.No.09/1031/NLR/UC/2024 under Sections 636, 452 (4) of
A.P.Municipal Corporation Act, 1955 and Sections 89(4), 90, 91
of A.P.MURDA Act, 2016 calling upon the Petitioners to remove
the unauthorized construction within 24 hours.
2. The facts leading to the filing of this writ petition are as
follows:
The Petitioners are the owners of an extent of 66
Ankanams and 23 sq. ft. in Venkatram Puram, Ward No.15,
Nellore Municipality, having purchased of the same under
registered sale deed bearing Document No.3284/2019 dated
10.04.2019. Pursuant to the purchase, the Petitioners applied for
building permission on 16.08.2021 for construction of individual
residential building and the same was approved by Respondent
No.3-Corporation vide proceedings dated 19.10.2022.
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3. As per the building permit, the Petitioners were permitted to
construct Ground floor + Stilt + three (3) upper floors. While so, a
notice dated 19.12.2024 was issued to the Petitioners pointing
out deviations in the construction in exercise of power under
Sections 452(1) and 461(1) of the A.P. Municipal Corporation Act,
1955 and under Sections 86, 89(1 & 2) of the A.P. MR & UDA
Act, 2016. As per the provisional notice, there is a violation in the
setbacks on all four sides of the building as additional four floors
were raised. However, deviations pointed out in the provisional
notice were that; (a) premises was being used for commercial
purpose and (b) there is a deviation of built-up area of 2380.1
square meters.
4. The Petitioners thereafter gave an explanation on
26.12.2024 without disputing the deviations and contended that
several buildings of similar nature are there in the vicinity, but the
Respondent-authority has not taken any action except against the
Petitioners. It is also stated that no objection was received by the
Respondent-authorities at the time of construction. After receipt
of the explanation from the Petitioners, the confirmation order
was passed on 02.01.2025 calling upon the Petitioners to bring
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down constructions within the scope of the building Rules within a
period of seven (7) working days.
5. Questioning the same, the petitioner filed W.P.No.423 of
2025 before this Court that personal hearing was not offered to
the Petitioners before passing the impugned order. This Court,
by following the order in W.P.No.6321 of 2024, by order dated
07.01.2025, disposed of W.P.No.423 of 2025 directing the
Respondent-authorities to provide an opportunity of hearing to the
Petitioners and thereafter pass appropriate orders within a period
of four(4) weeks.
6. Accordingly, a notice of hearing was issued to the
Petitioners on 17.06.2025 and after affording an opportunity of
hearing to the Petitioners, the impugned order was passed on
27.06.2025 vide Roc.No.09/1031/NLR/UC/2024. Hence, this writ
petition.
7. Heard Sri Posani Venkateswarlu, learned senior counsel
for the Petitioners and Sri A.C.Bose, learned Standing Counsel
for the Respondent-Corporation.
8. Learned senior counsel contended that the impugned order
dated 27.06.2025 specifies aspects which were not contemplated
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in the original show cause notice i.e. the non-applicability of the
building Transfer Development Rights as there are no set-backs
on all sides of the building, non-applicability of regularisation of
constructions under Section 455A of the Municipal Corporation
Act, 1955 and the building in question poses a danger. Learned
senior counsel would contend that these facts were not
mentioned in the provisional notice and therefore, relying on
those aspects for passing the impugned order cannot be
sustained.
9. Learned standing counsel on written instructions would
submit that contrary to the approved building plan, the Petitioners
constructed Cellar + Ground Floor + Seven (7) upper floors and
that the Stilt Floor was converted as a habitable floor. It is stated
that pursuant to the provisional notice dated 31.05.2024, the
Petitioners did not submit any explanation, consequently a
confirmation order was passed. It is stated that demolitions were
carried out thereafter in the first week of January, 2025.
However, pursuant to the orders of this Court in W.P.No.423 of
2025, a personal hearing was provided on 18.06.2025 to the
Petitioners. It is also mentioned that the nature of building of the
Petitioners has to be treated as a high-raise building and that the
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manner of construction reflects scant respect for building Rules
and demolition is necessary so that a message is sent to the
society. Photographs were also enclosed along with written
instructions showing the stage of construction as on date and
stated that there are absolutely no merits in the building
permission of the Petitioners.
10. Having heard the respective counsel, this Court reasons as
under:
The original building plan was for residential building, Stilt,
Ground + three (3) upper floors and contrary to the same, the
Petitioners in blatant violation constructed seven (7) upper floors
in an extent of 374.58 square meters (equivalent to 448 Sq.yards)
without providing any set-backs on any side. It would be apt to
refer to the violations pointed out in the provisional notice, which
are not seriously undisputed in the writ affidavit or in the reply
submitted to the provisional notice. The deviations pointed out in
the provisional notice are as under:
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As per Plan As on Ground Deviation
Setback Front (in
3 0.3 2.7
meters)
Setback Rear (in
2 0.3 1.7
meters)
Setback Side 1 (in
2 0.3 1.7
meters)
Setback Side 2 (in
2 0.3 1.7
meters)
No.of Floors 5 9 4
Land Usage RESIDENTIAL COMMERCIAL Deviation
Parking (in sqm) 216.02 350 0
Road Widening (in
0 0 0
sqm)
Built Up Area (in
1119.9 3500 2360.1
Sqm)
11. A reading of the above would show that not a single column
is in consonance with the building right from the change of usage
of land from residential to commercial, near zero set-backs on all
sides and laying (04) additional floors. The construction in
question reflects absolute disregard to building laws and law per
se. The photographs along with written instructions of the
standing counsel would reflect the gravity of the abuse of the
building plan given in favour of the Petitioners.
12. As rightly contended by the standing counsel for the
Respondent- corporation, even after ignoring the observations in
the impugned order, non-applicability of Transfer Development
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Rights and post construction regularisation under Section 455A of
the A.P.Municipal Corporation Act, there is absolutely no
justification on the part of the Petitioners in seeking to sustain
such constructions.
13. It would be appropriate to refer to a judgement of Hon'ble
Supreme court in Priyanka Estates International (P) Ltd. v.
State of Assam1, where unauthorised floors were constructed
contrary to the building plan. Even though flats in the
unauthorised floors were sold, the Hon'ble Supreme Court
refused to halt demolition and held that illegal constructions
should be dealt firmly. The paragraphs 55 and 56 thereof are
extracted below:
55. It is a matter of common knowledge that illegal and
unauthorised constructions beyond the sanctioned plans are
on rise, may be due to paucity of land in big cities. Such
activities are required to be dealt with by firm hands
otherwise builders/colonisers would continue to build or
construct beyond the sanctioned and approved plans
and would still go scot-free. Ultimately, it is the flat owners
who fall prey to such activities as the ultimate desire of a
common man is to have a shelter of his own. Such unlawful
constructions are definitely against the public interest and
hazardous to the safety of occupiers and residents of
multistoreyed buildings. To some extent both parties can be
said to be equally responsible for this. Still the greater loss
1
(2010) 2 SCC 27
10
would be of those flat owners whose flats are to be
demolished as compared to the builder.
56. Even though on earlier occasions also, under similar
circumstances, there have been judgments of this Court
which should have been a pointer to all the builders that
raising unauthorised construction never pays and is against
the interest of society at large, but, no heed has been given
to it by the builders. Rules, regulations and bye-laws are
made by Corporations or by Development Authorities, taking
in view the larger public interest of the society and it is a
bounden duty of the citizens to obey and follow such rules
which are made for their benefit. If unauthorised
constructions are allowed to stand or given a seal of
approval by court then it is bound to affect the public at
large. An individual has a right, including a fundamental
right, within a reasonable limit, it inroads the public rights
leading to public inconvenience, therefore, it is to be curtailed
to that extent.
14. A similar view was expressed in Dipak Kumar Mukherjee
v. Kolkata Municipal Corporation.,2 declaring that there should
be zero tolerance to illegal constructions and persons who treat
law to be sub-servient. The paragraphs 8 and 9 are extracted
below;
8. What needs to be emphasised is that illegal and
unauthorised constructions of buildings and other structures
not only violate the municipal laws and the concept of
planned development of the particular area but also affect
various fundamental and constitutional rights of other
persons. The common man feels cheated when he finds that
2
(2013) 5 SCC 336
11
those making illegal and unauthorised constructions are
supported by the people entrusted with the duty of preparing
and executing master plan/development plan/zonal plan. The
reports of demolition of hutments and jhuggi jhopris
belonging to the poor and disadvantaged section of the
society frequently appear in the print media but one seldom
gets to read about demolition of illegally/unauthorisedly
constructed multi-storeyed structures raised by economically
affluent people. The failure of the State apparatus to take
prompt action to demolish such illegal constructions has
convinced the citizens that planning laws are enforced only
against poor and all compromises are made by the State
machinery when it is required to deal with those who have
money power or unholy nexus with the power corridors.
9. We have prefaced disposal of this appeal by taking
cognizance of the precedents in which this Court held
that there should be no judicial tolerance of illegal and
unauthorised constructions by those who treat the law
to be their subservient, but are happy to note that the
functionaries and officers of Kolkata Municipal Corporation
(for short "the Corporation") have been extremely vigilant and
taken steps for enforcing the provisions of the Calcutta
Municipal Corporation Act, 1980 (for short "the 1980 Act")
and the Rules framed thereunder for demolition of illegal
construction raised by Respondent 7. This has given a ray of
hope to the residents of Kolkata that there will be zero
tolerance against illegal and unauthorised constructions and
those indulging in such activities will not be spared.
15. Lastly, in Rajendra Kumar Barjatya and another v. U.P.
Avas Evam Vikas Parishad and others3 after referring to all the
3
2024 SCC Online SC 3767
12
judgements regarding illegal constructions, the Hon'ble Supreme
Court at paragraph 19 held as follows;
19. In a catena of decisions, this Court has categorically
held that illegally of unauthorized construction cannot
be perpetuated. If the construction is made in
contravention of the Acts/Rules, it would be construed
as illegal and unauthorized construction, which has to
be necessarily demolished. It cannot be legitimized or
protected solely under the ruse of the passage of time or
citing inaction of the authorities or by taking recourse to
the excuse that substantial money has been spent on
the said construction.
16. Further, the Hon'ble Supreme Court gave directions at
paragrapgh 21 to all the authorities regarding building
constructions. Among the directions given are that till
completion/occupancy certificate is produced, no water, sewage,
electricity connections etc., nor trade licence should be given.
17. Therefore, this Court considering the magnitude of
deviation in construction of the building in question is not inclined
to interfere with the order impugned. However, as held by the
Hon'ble Supreme Court, the 24 hours of time provided to the
Petitioners for carrying out the demolition is too short time and
reasonable time should be provided to the Petitioners to carry out
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the demolition and to bring the building within the scope of
A.P.Building Rules of 2017.
18. Therefore, the writ petition is disposed of with the following
directions:
(i) The Petitioners are provided time of three (3) weeks from
today to carry out the demolitions and bring the building within the
scope of A.P.Building Rules, 2017 and in accordance with the
building plan approved in favour of the Petitioners vide permit
No.1031/1364/B/NMC/VKTPRM/2021 dated 19.10.2022.
(ii) In the time provided, the Petitioners shall remove the illegal
and unauthorised floors and also remove constructions on all
sides of the building in question and provide set-backs on all
sides of the building as per the building plan approved vide permit
No.1031/1364/B/NMC/VKTPRM/2021 dated 19.10.2022.
(iii) In default, the Respondent-corporation shall proceed with
demolition of the illegal and unauthorised floors in the building in
question and remove constructions on all sides and provide set-
backs on all sides of the building as per the approved building
plan as expeditiously as possible.
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(iv) No order as to costs.
As a sequel, pending applications, if any, shall stand
closed.
__________________
NYAPATHY VIJAY, J
Date: 30.06.2025
KLP
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//TRUE COPY//
NYAPATHY VIJAY,J
To,
1. THE STATE OF AP, REP. BY ITS PRINCIPAL
SECRETARY, DEPARTMENT OF MUNICIPAL
ADMINISTRATION AND URBAN DEVELOPMENT,
SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATI.
2. THE NELLORE MUNICIPAL CORPORATION, REP. BY ITS
COMMISSIONER, NELLORE.
3. THE COMMISSIONER, NELLORE MUNICIPAL
CORPORATION.
4. THE DEPUTY CITY PLANNER, NELLORE MUNICIPAL
CORPORATION, NELLORE.
5. Two CD Copies
16
HIGH COURT
VNJ
DATED:30/06/2025
ORDER
WP 16018/2025
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