Edarlapalli Bala Subrahmanyam Vs the State of Ap

EDARLAPALLI BALA SUBRAHMANYAM, S/O E. S. RAJU, AGED ABOUT 58 YEARS, OCC. BUSINESS, R/O M.I.G 2A/90, GOLLAPALEM COLONY, SRIHARIPURAM, MALKAPURAM POST, VISAKHAPATNAM.

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NADIMPALLI SRI DIVYA DURGA MADHULIKA @ VEMULAMANDA SRI DIVYA DURGA MADHULIKA,, W/O V. SIVA KUMAR RAJU, AGED ABOUT 40 YEARS, OCC. HOUSEWIFE, R/O FLAT NO. 1411, TOWER-1, MARINA SKIES, HARIRAM HILLS ROAD, OPPOSITE I.D.L MOOSAPETA, SANATHNAGAR, HYDERABAD, TELANGANA STATE.

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...PETITIONER(S)

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AND

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THE STATE OF AP, REP.BY ITS PRINCIPAL SECRETARY MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT DEPARTMENT, SECRETARIAT BUILDINGS, VELAGAPUDI, GUNTUR DISTRICT.

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THE GREATER VISAKHAPATNAM MUNICIPAL CORPORATION, REP BY ITS COMMISSIONER, O/O THE GREATER MUNICIPAL CORPORATION, TENNETI VISWANADHA BHAVAN, ASILMETTA, VISAKHAPATNAM.

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THE ZONAL COMMISSIONER ZONEIII, GREATER VISAKHAPATNAM MUNICIPAL CORPORATION, VISAKHAPATNAM.

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WP.No.1743 of 2025

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THE TOWN PLANNING OFFICER, ZONE-ILL, GREATER VISAKHAPATNAM MUNICIPAL CORPORATION, VISAKHAPATNAM.

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MADHURI MAHOR FLAT OWNERS WELFARE ASSOCIATION, REP BY ITS PRESIDENT K.CHANDRA SEKHAR RAO, REGD NO.1003 OF 2001 6-2024, EAST POINT COLONY, VISAKHAPATNAM 530017. R5 IS IMPLEADED AS PER THE COURT'S ORDER DT.31.01.2025 IN I.A.NO. 02 OF 2025.

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...RESPONDENT(S):

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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 to. It is therefore prayed that the Honble Court may be pleased to issue Writ order or direction more particularly one in the nature of Writ of Mandamus declare Notice No.163/1086/GVM/UC/2024 dated 12-12-2024 and Notice No.163/1086/GVMC/UC/2024 dated 3.1.2025 the notice vide dated 20-01-2025 issued by the 2nd respondent directed the petitioner to remove constructions within 24 hours at Door No 6-20-24 Madhuri Manor Apartments at East Point Colony Visakhapatnam without considering the approved building permission plan vide B.A.No.184/97/ACP2 dated 07-06-1998 and explanation made by the petitioner as illegal arbitrary violation of principles of natural justice and contrary to provisions of Andhra Pradesh Metropolitan Region and Urban Development 2016 and violation of Articles 14, 21 and 300A of the Constitution of India and consequently set aside the NoticeNo.163/1086/GVMC/UC/2024 dated 12-12-2024 and Notice No.163/1086/GVMC/UC/2024 dated 3.1.2025 notice dated 20-01-2025 issued by 2nd respondent for demolition of subject shop rooms to an extent of 500 sq feet and 1000 sq feet respectively at Door No 6-20-24 Madhuri Manor Apartments at East Point Colony Visakhapatnam pass such other order or orders as this Honble Court may deem fit and proper in the circumstances of the case. Prayer is amended as per the Court's Order dt.14.10.2025 in I.A.No.04 of 2025

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IA NO: 1 OF 2025

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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 may be pleased of all further proceedings in pursuant to notice dated 20-012025 issued by the 2nd respondent for demolition of shop rooms to an extent of 500 sq.feet (2 shop rooms) and 1000 sq.feet (4 shop rooms) respectively

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at Door No.6-20-24, Madhuri Manor Apartments at East Point Colony, Visakhapatnam pending disposal of above Writ Petition and pass such

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IA NO: 2 OF 2025

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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 pray that this Honorable Court to permit Proposed person/Respondent to implead in the above Writ petition No. 1743 OF 2025 as Respondent No.5, and also permit Proposed person/Respondent to file the counter in IA and in the main Writ petition No. 1743 OF 2025, or else he will be put to irreparable loss and hardship

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IA NO: 3 OF 2025

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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 may be pleased to vacate the stay order passed in I.A. no. 1/2025 in Writ Petition no. 1743 of 2025 dt: 24.01.2025 ,in the interest of Justice and pass

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IA NO: 4 OF 2025

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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 may be pleased to permit the Petitioner to amend main prayer by incorporating “Notice No.163/1086/GVMC/UC/2024 dated 12-12-2024 and Notice No.163/1086/GVMC/UC/2024 dated 3.1.2025 after 'Writ the of Mandamus declare’ and before ‘the notice vide dated 20-01-2025’ and "Notice No 163/1086/GVMC/UC/2024 dated 12-12-2024 and Notice NO.163/1086/GVMC/UC/2024 dated 3.1.2025 and" after ‘consequently setaside the’ and before ‘the Notice, dt.20.1.2025’ in W.P.No. 1743/2025 and pass IA NO: 5 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 to receive the documents annexed to this lA as documents in W.P.No.1743/2025 and pass

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IA NO: 6 OF 2025

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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

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may be pleased to grant leave to file the Reply Affidavit in W.P.No. 1743/2025 and pass

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Counsel for the Petitioner(S):

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1.BANKA NAGESWARA RAO

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2.CHERUVU CHAITANYA BHARGAVA SARMA

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Counsel for the Respondent(S):

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1.A S C BOSE (SC FOR MUNICIPAL CORPORATIONS AP)

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2.M SOLOMON RAJU

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3.GP MUNCIPAL ADMN AND URBAN DEV AP

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The Court made the following:

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THE HONOURABLE SRI JUSTICE HARINATH.N

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WRIT PETITION No.1743 OF 2025

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ORDER:

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Heard Sri.P.Veera Reddy, the learned Senior Counsel for the 1^st petitioner, the learned counsel for the 2^nd petitioner, the learned Standing Counsel for the respondent Nos.2 to 4 and the learned counsel for the 5^th respondent.

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The learned Senior Counsel for the 1^st petitioner submits that the petitioners were issued notice under Section 452(1) and 461(1) read with Sections 428 and 429 of the Andhra Pradesh Municipal Corporation Act, 1955, dated 12.12.2024. It is submitted that the petitioners are bonafide purchasers of shop rooms constructed on the cellar/stilt floor of Madhuri Manor Apartments, East Point Colony, Visakhapatnam. It is submitted that the 1^st petitioner purchased two shop rooms vide a registered sale deed dated 11.10.1999. The father of the 2^nd petitioner also purchased four shops vide a registered sale deed dated 17.03.1998. It is further submitted that the 2^nd petitioner’s father executed a gift deed in favour of the 2^nd petitioner on 06.02.2007.

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It is submitted that the petitioners are assessed for property tax and have been paying property tax ever since the purchase of the shops. It is also submitted that the petitioners have let out the shops to their tenants, who are carrying on their business without any interference. The petitioners have relied on the sanctioned plan filed along with the

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writ petition as Ex.P6 and submit that they are in legal possession and enjoyment of the said property. It is submitted that at the behest of the 5^th respondent, the 2^nd respondent issued the impugned notice. It is further submitted that the 1^st petitioner submitted an application for regularization of the shops and that even as per the latest G.O.Ms.No.225 dated 12.11.2025, the State Government has introduced a scheme for regularizing unauthorized constructions.

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The submissions of the learned Senior Counsel are two fold, and it is submitted that the impugned proceedings dated 12.12.2024 were issued by the Town Planning Officer, Zone-III, GVMC. It is submitted that as per Sections 452(1) and 461(1) of the APMC Act, the competent authority to issue such proceedings would be the Commissioner. It is also submitted that the impugned proceedings do not detail as to what exactly is the deviation in the stilt floor and the extent of such deviation.

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It is submitted that,inpursuance of the impugned proceedings, the 2^nd respondent issued subsequent notices dated 03.01.2025 and 20.01.2025 requiring the petitioners to pull down the alleged unauthorized construction in the stilt floor. It is submitted that the petitioners are in continuous possession for the last 26 years and that the sanctioned plan, which was furnished to them by their vendor prior to their purchase, clearly indicated the existence of six shop rooms in the stilt floor. As such, the purchase of the shops by the 1^st petitioner

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and the gift devolving upon the 2^nd petitioner were entirely based on the plan relied upon by the petitioners and filed along with the writ petition.

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It is submitted that the petitioners are the bonafide purchasers and are paying maintenance to the 5^th respondent since the last two and half decades.The 5^th respondent cannot now turn around and reclaim the area of the shops purchased by them for the purpose of parking by citing inconvenience to the apartment owners.

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The learned Senior Counsel submits that Section 455-A of the APMC Act would facilitate the petitioners to seek regularization of unauthorized construction, if any, and that the competent authority to consider such application is the Commissioner. It is also submitted that the regularization application of the 1^st petitioner is under active consideration by the 2^nd respondent. It is therefore submitted that a direction may be issued to the 2^nd respondent to consider the case of the 1^st petitioner for regularization of the shops and to enable the petitioners to apply afresh under G.O.Ms.No.225, leaving it open to the 2^nd respondent to regularize the alleged unauthorized construction in terms of the G.O. It is also prayed that, consequently, the impugned proceedings deserve to be set aside.

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The learned Standing Counsel for the 2^nd respondent and the learned counsel for the 5^th respondent have filed their counters. The 5^th respondent disputes the genuineness of the sanctioned plan filed by the petitioners along with the writ petition. The 2^nd respondent also

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disputed the genuineness of Ex.P6 (sanctioned plan) relied upon by the petitioners. This Court called for furnishing of the original sanctioned plan as available in the office of the 2^nd respondent. The learned Standing Counsel for the 2^nd respondent produced the attested copy of sanctioned plan as available in their office on 04.04.2025 before this Court. The 2^nd respondent, in its counter, stated that the officials visited the subject property and found ten shops constructed in the stilt floor of the apartment, and accordingly issued the impugned notice dated 12.12.2024.The learned counsel for the 5^th respondent submits that the father of the 2^nd petitioner is the vendor of the 1^st petitioner.

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The vendor of the 1^st petitioner executed a sale deed conveying title and interest over two shops in the stilt floor, together with 20 square yards of undivided share of land. It is further submitted that the 2^nd petitioner’s father executed a gift deed conveying 45 square yards of undivided share of land along with four shop rooms to the 2^nd petitioner. It is submitted that the vendor of the 1^st petitioner, has title only to an extent of 45 square yards of undivided share. He could not have conveyed land beyond his holding. By virtue of execution of sale deeds for the shops in favour of the petitioners the vendor of the 1^st petitioner has transferred title to an extent of 65 square yards of undivided share.

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The learned counsel appearing for the 5^th respondent submits that the petitioners cannot claim any equities on account of continuous usage of the said shops for the last two and half decades. It is submitted that the

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petitioners ensured that they are always part of the management of the residents welfare association and never let any other residents of the apartment to become the part of managing committee. As such, they never let anyone know about the illegal construction. It was only after a thorough enquiry the 5^th respondent came to know about the illegal activities of the petitioners.

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It is also submitted that the vendor of the 1^st petitioner was one of the partners of the developer who constructed the complex and was therefore aware of the permissions granted. It is submitted that construction of the shops in the stilt floor was completely unauthorized. It is further submitted that the complex consists of 38 flats, and the residents are being forced to park their vehicles in the common passage area as a major portion of the parking area has been converted into shops. It is submitted that two additional shops were also constructed in the area earmarked as open to sky, which are in occupation of third parties.It is submitted that construction of shops in the area earmarked for parking cannot be considered for regularization even under the latest G.O. issued by the State.

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Insofar as the competency of the Town Planning Officer to issue notices under Section 452 is concerned, the learned Standing Counsel for the 2^nd respondent places reliance on G.O.Ms.No.49 dated 01.02.2018, under which the Town Planning Officer has been delegated the power to issue notices under Section 452 of the APMC Act.

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The point for consideration is:

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Whether the shops constructed in the stilt floor and purchased by the 1^st petitioner and gifted to the 2^nd petitioner would satisfy the statutory parameters for permitting such activity in the stilt floor.

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As seen from the building permission granted in 1998, the permission was sanctioned only for a residential building. The plan relied upon by the petitioners does not tally with the sanctioned plan furnished by the 2^nd respondent. The 5^th respondent has also placed the sanctioned plan on record, and the plans submitted by respondent Nos.2 and 5 are one and the same. The alleged copy of the sanctioned plan relied upon by the petitioners would have to be discarded as a manufactured document filed for the purpose of maintaining the writ petition.

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The petitioners have filed a plan showing eight shops in the stilt floor, which they claim was furnished by their vendor. It is also relevant that the vendor of the 1^st petitioner and the father of the 2^nd petitioner was a partner of the builder. This Court therefore has no hesitation to note that the petitioners are guilty of filing a fabricated document before this Court.

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The law is clear that unauthorized constructions in the cellar, stilt floor, or any area earmarked for parking cannot be subjected to regularization by any authority. As per Section 9 of the Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987, which deals with common areas and facilities, clearly recognizes the parking area as a common area available for use by the apartment owners and dwellers.

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Insofar as the stand of the petitioners with regard to the issuance of the impugned notice dated 12.12.2024 by the Town Planning Officer is concerned, G.O.Ms.No.49 adequately clarifies the legal position, and this Court finds no ground to interfere with the impugned proceedings. The construction of shops in the stilt floor is a clear deviation from the sanctioned plan. The continuous enjoyment and possession of the said shops for a period of twenty-six years, as claimed by the petitioners, shall not rectify the error committed nor regularize the unauthorized construction by any means.The applicable Government Orders also do not permit regularization of shops constructed in the stilt floor which is earmarked for parking. GOMs.No.225, dated 12.11.2025 would also not permit regularization of such unauthorized construction.

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It is pertinent to refer to the land mark judgment of the Hon’ble Supreme Court in the matter of NahalchandLaloochand P.Ltd vs Panchali Co-Op.Hng.Sty.Ltd¹ , held that the area ear marked for parking cannot be converted for any other purposes, much less for the purpose of carrying out commercial activity. The Hon’ble Supreme Court held that open to the sky parking area or stilted portion usable as parking space is the area which is specifically ear marked for use of the apartment dwellers and cannot be converted and sold as individual units for carrying out commercial activity.

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1AIR 2010 SUPREME COURT 3607

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On these considerations, this Court is of the considered view that the parking area in the stilt floor has to be reclaimed by the respondent Nos.2 to 4 forthwith.The petitioners cannot claim any equities by placing reliance on a fabricated document. They have derived rents by leasing the shops all these years and at the same time putting the other flat dwellers to hardship. The respondents shall demolish the unauthorizedly constructed shops in the stilt floor and handover the area to the 5^th respondent for allotting / use it for parking for the benefit of the residents of the apartment within a period of four weeks from the date of receipt of this order.

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