1

* HON’BLE SRI JUSTICE B.KRISHNA MOHAN

+ WRIT PETITION Nos.8753 of 2018, 11408 of 2018 and 37393 of 2018

% 17.08.2023

W.P.No.8753 of 2018:

# 1. M/s.Dasapalla Constructions, D.No.10-50-8, Waltair Main Road,

Visakhapatnam, rep. by its Managing Partner, Sri Vemulapalli Koteshwar

Rao, S/o.Late V.Nagaiah, aged about 55 years.

2. V.Koteshwar Rao, S/o.Late V.Nagaiah, aged about 55 years, R/o.P-2,

Sunny Side Homes, Waltair Main Road, Visakhapatnam.

… Petitioners

Vs.

$ 1. The Union of India, rep. by its Joint Secretary, Ministry of Defence,

South Block New Delhi.

2. The Eastern Naval Command, Naval Base, Visakhapatnam-530 014, rep.

by its Commander in Chief.

3. The 32 Wireless Expermental Unit, Headquarters, C/o.Fleet Mail Office,

Visakhapatnam – 530 014, rep. by its Captain Officer Commanding.

4. The Commander, Command Aviation Office,r (AOL) FOR Flat Officer

Commanding – in –Chief, Eastern Naval Command, Naval Base,

Visakhapatnam.

5. Greater Visakhapatnam Municipal Corporation, rep. by it sCommissioner,

GVMC Building, Visakhapatnam.

6. The District Collector of Visakhapatnam, Collectors Office, Maharanipeta,

Visakhapatnam – 01.

…. Respondents

Counsel for the petitioners: SRI N.ASHWINI KUMAR

Counsel for the respondents: SRI PELLETI RAJESH KUMAR

Central Government Counsel

2

W.P.No.11408 of 2018:

# 1. M/s.Dasapalla Constructions, D.No.10-50-8, Waltair Main Road,

Visakhapatnam, rep. by its Managing Partner, Sri Vemulapalli Koteshwar

Rao, S/o.Late V.Nagaiah, aged about 55 years.

2. V.Koteshwar Rao, S/o.Late V.Nagaiah, aged about 55 years, R/o.P-2,

Sunny Side Homes, Waltair Main Road, Visakhapatnam.

… Petitioners

Vs.

$ 1. Greater Visakhapatnam Municipal Corporation, rep. by its

Commissioner, GVMC Building, Visakhapatnam.

2. The District Collector of Visakhapatnam, Collectors Office, Maharanipeta,

Visakhapatnam – 01.

3. The State of Andhra Pradesh, rep. by its Principal Secretary, Dept. of

Municipal Admn & Urban Dev., AP Secretariat, Velagapudi, Amaravati,

Guntur District.

…. Respondents

Counsel for the petitioners: SRI N.ASHWINI KUMAR

Counsel for the respondents: SRI PELLETI RAJESH KUMAR

Central Government Counsel

W.P.No.37393 of 2018:

# 1. The Union of India, rep. by its Joint Secretary, Ministry of Defence,

South Block New Delhi.

2. The Eastern Naval Command, Naval Base, Visakhapatnam-530 014, rep.

by its Commander in Chief.

3. The 32 Wireless Experimental Unit, Headquarters, C/o.Fleet Mail Office,

Visakhapatnam – 530 014, rep. by its Captain Officer Commanding.

3

4. The Commander, Command Aviation Officer (AOL) for Flat Officer

Commanding – in –Chief, Eastern Naval Command, Naval Base,

Visakhapatnam.

… Petitioners

Vs.

$ 1. The State of Andhra Pradesh, rep. by its Prl. Secretary, Deptt. Of

Municipal Admn & Urban Development, AP Secretariat, Velagapudi,

Amaravathi, Guntur District.

2. Greater Visakhapatnam Municipal Corporation, rep. by its Commissioner,

GVMC Building, Visakhapatnam.

3. The District Collector, Visakhapatnam, Collectors Office, Maharanipeta,

Visakhapatnam – 01.

4. M/s.Dasapalla Constructions, D.No.10-50-8, Waltair Main Road,

Visakhapatnam, rep. by its Managing Partner, Sri Vemulapalli Koteshwar

Rao, S/o.Late V.Nagaiah, aged about 55 years.

5. V.Koteshwar Rao, S/o.Late V.Nagaiah, aged about 55 years, R/o.P-2,

Sunny Side Homes, Waltair Main Road, Visakhapatnam.

…. Respondents

! Counsel for the petitioners: SRI PELLETI RAJESH KUMAR

Central Government Counsel

Counsel for the Respondents: GP FOR MUNICIPAL ADMINISTRATION

AND URBAN DEVELOPMENT

<Gist :

>Head Note:

? Cases referred:

4

HON’BLE SRI JUSTICE B.KRISHNA MOHAN

WRIT PETITION Nos.8753 of 2018, 11408 of 2018 and 37393 of 2018

Between:

W.P.No.8753 of 2018:

# 1. M/s.Dasapalla Constructions, D.No.10-50-8, Waltair Main Road,

Visakhapatnam, rep. by its Managing Partner, Sri Vemulapalli Koteshwar

Rao, S/o.Late V.Nagaiah, aged about 55 years.

2. V.Koteshwar Rao, S/o.Late V.Nagaiah, aged about 55 years, R/o.P-2,

Sunny Side Homes, Waltair Main Road, Visakhapatnam.

… Petitioners

Vs.

$ 1. The Union of India, rep. by its Joint Secretary, Ministry of Defence,

South Block New Delhi.

2. The Eastern Naval Command, Naval Base, Visakhapatnam-530 014, rep.

by its Commander in Chief.

3. The 32 Wireless Expermental Unit, Headquarters, C/o.Fleet Mail Office,

Visakhapatnam – 530 014, rep. by its Captain Officer Commanding.

4. The Commander, Command Aviation Office,r (AOL) FOR Flat Officer

Commanding – in –Chief, Eastern Naval Command, Naval Base,

Visakhapatnam.

5. Greater Visakhapatnam Municipal Corporation, rep. by it sCommissioner,

GVMC Building, Visakhapatnam.

6. The District Collector of Visakhapatnam, Collectors Office, Maharanipeta,

Visakhapatnam – 01.

…. Respondents

5

W.P.No.11408 of 2018:

# 1. M/s.Dasapalla Constructions, D.No.10-50-8, Waltair Main Road,

Visakhapatnam, rep. by its Managing Partner, Sri Vemulapalli Koteshwar

Rao, S/o.Late V.Nagaiah, aged about 55 years.

2. V.Koteshwar Rao, S/o.Late V.Nagaiah, aged about 55 years, R/o.P-2,

Sunny Side Homes, Waltair Main Road, Visakhapatnam.

… Petitioners

Vs.

$ 1. Greater Visakhapatnam Municipal Corporation, rep. by its

Commissioner, GVMC Building, Visakhapatnam.

2. The District Collector of Visakhapatnam, Collectors Office, Maharanipeta,

Visakhapatnam – 01.

3. The State of Andhra Pradesh, rep. by its Principal Secretary, Dept. of

Municipal Admn & Urban Dev., AP Secretariat, Velagapudi, Amaravati,

Guntur District.

…. Respondents

W.P.No.37393 of 2018:

# 1. The Union of India, rep. by its Joint Secretary, Ministry of Defence,

South Block New Delhi.

2. The Eastern Naval Command, Naval Base, Visakhapatnam-530 014, rep.

by its Commander in Chief.

3. The 32 Wireless Experimental Unit, Headquarters, C/o.Fleet Mail Office,

Visakhapatnam – 530 014, rep. by its Captain Officer Commanding.

4. The Commander, Command Aviation Officer (AOL) for Flat Officer

Commanding – in –Chief, Eastern Naval Command, Naval Base,

Visakhapatnam.

… Petitioners

Vs.

6

$ 1. The State of Andhra Pradesh, rep. by its Prl. Secretary, Deptt. Of

Municipal Admn & Urban Development, AP Secretariat, Velagapudi,

Amaravathi, Guntur District.

2. Greater Visakhapatnam Municipal Corporation, rep. by its Commissioner,

GVMC Building, Visakhapatnam.

3. The District Collector, Visakhapatnam, Collectors Office, Maharanipeta,

Visakhapatnam – 01.

4. M/s.Dasapalla Constructions, D.No.10-50-8, Waltair Main Road,

Visakhapatnam, rep. by its Managing Partner, Sri Vemulapalli Koteshwar

Rao, S/o.Late V.Nagaiah, aged about 55 years.

5. V.Koteshwar Rao, S/o.Late V.Nagaiah, aged about 55 years, R/o.P-2,

Sunny Side Homes, Waltair Main Road, Visakhapatnam.

…. Respondents

Date of Judgment Pronounced: 17.08.2023

Submitted for Approval:

HON’BLE SRI JUSTICE B.KRISHNA MOHAN

1. Whether Reporters of Local newspapers Yes/No

may be allowed to see the judgments ?

2. Whether the copies of judgment may be Yes/No

marked to Law Reporters/Journals

3. Whether Their Ladyship/Lordship wish to Yes/No

see the fair copy of the Judgment ?

______________________________

JUSTICE B.KRISHNA MOHAN

7

HON’BLE SRI JUSTICE B.KRISHNA MOHAN

WRIT PETITION Nos.8753 of 2018, 11408 of 2018 and 37393 of 2018

COMMON ORDER:

In W.P.No.8753 of 2018, the action of the respondents 2 and 3 in

issuing the proceedings No.54804/21/HQ 32 WEU dated 23.11.2017

requesting to stop further construction on the B-block and to restrict the

construction of ‘A’ block to a promulgated height of 26.5 AMSL (Above

Mean Sea Level) in the land in an extent of 7,800 square yards in Survey

No.363/A of Waltair Ward, Block No.20, VUDA Park, Jalaripeta,

Visakhapatnam, notwithstanding the building permission dated 13.11.2015

granted by the respondent No.5 Corporation is challenged as violative of

G.O.Ms.No.119 dated 28.03.2017 and G.O.Ms.No.168 dated 07.04.2012.

2. In W.P.No.11408 of 2018 the action of the respondent No.1 in

interfering with the title, possession, occupation and construction activity of

the petitioners pursuant to the building permission granted by the respondent

No.1 vide proceedings BA.No.14674/2013/DCP-1/G1 dated 13.11.2015,

revised vide proceedings B.A.File No.1087/0655/B/Z2/CIR/2017 dated

13.03.2018, in the land in an extent of 7,800 square yards situated in Survey

No.363/A, Waltair Ward, Block No.20, VUDA Park, Jalaripeta,

8

Visakhpaatnam, is under challenge on the ground that it is violative of

principles of natural justice and the provisions of the GHMC Act, 1955,

G.O.Ms.No.119 dated 28.03.2017 and G.O.Ms.No.168 dated 07.04.2012.

3. In W.P.No.37393 of 2018, a direction was sought to direct the

respondent No.2 to take action against the unofficial respondents 4 and 5 for

making construction illegally i.e., over and above the permissible height of

26.5m AMSL (Above Mean Sea Level) in the land in an extent of 7800

square yards situated in Survey No.363/A, Waltair Ward, Block No.20,

VUDA Park, Jalaripeta, Visakhpaatnam, in violation of the terms and

conditions mentioned in the no objection certificate in proceedings

No.AO/0177/NOC/Daspalla/2 dated 08.11.2016 issued by the petitioners.

4. The petitioners in W.P.No.8753 of 2018 are the petitioners in

W.P.No.11408 of 2018. The respondent Nos.5 and 6 in W.P.No.87563 of

2018 are the respondent Nos.1 and 2 in W.P.No.11408 of 2018. The

respondent Nos. 1 to 4 in W.P.No.8753 of 2018 are the petitioners in

W.P.No.37393 of 2018. The petitioners in W.P.No.8753 of 2018 are the

respondent Nos. 4 and 5 respectively in W.P.No.37393 of 2018.

The respondent Nos.5 and 6 in W.P.No.8753 of 2018 are the respondent

Nos.2 and 3 in W.P.No.37393 of 2018.

9

W.P.Nos.8753 and 11408 of 2018:

5. The counsel for the petitioners submits that the original owners

possessed with the full and absolute rights of the land in an extent of 7,800

sq.yards in Survey No.363/A, Waltair Ward, Block No.20, Visakhpaatnam,

approached the petitioners and executed a development agreement with GPA

in favour of the 1

st

petitioner for development of the said land by constructing

a multi storeyed building. The petitioner made an application for building

permission to the respondent No.5 Corporation and the respondent no.5

insisted for submission of no objection certificate from the defence authorities

i.e., the respondent Nos.1 to 4 on the ground that the subject land lies

adjacent to the HQ 32 involved with military operations. The petitioners

challenged the said action of the respondent No.5 Corporation in insisting for

no objection certificate though the said land falls within the exclusive limits of

the municipal corporation by filing the W.P.No.7916 of 2012 before the

erstwhile High Court of Andhra Pradesh. The same was disposed of vide

order dated 21.03.2012 directing the petitioner to submit all the relevant

documents and the respondents therein to consider the same in accordance

with law without insisting no objection certificate from the respondent

authorities. Then the 1

st

petitioner made an application to the Environment

10

Forests Science and Technology Department for grant of approval for

construction in the said land and the AP Coastal Zone Management

authority examined and opined that the permission can be accorded for

construction vide proceedings letter No.7149/CZMA/2012 dated 28.02.2013.

Thereafter the 1

st

petitioner made an application to the respondent No.5

Corporation for sanction of building permission with all the relevant

documents needed for examining the proposal for construction by also paying

the necessary fee applicable thereto. The respondent No.5-Corporation vide

proceedings BANo.14674/2013/DCP-I/G1, dated 13.11.2015 sanctioned

permission for construction of a residential apartment building consisting of

stilt floor for parking and ground + four upper floors. Then the 1

st

petitioner

upon sanction of building permission made an application to the respondent

No.3 (the 32 wireless experimental unit, Headquaters, C.o.Fleet Mail Office,

Visakhapatnam – 530 014) for issuance of NOC to undertake construction

activity basing upon the permission granted by the respondent No.5

Corporation. The respondent No.3 after examining the application, issued

NOC for construction of cellar stilt floor for parking and ground + four upper

floors for residential plots vide proceedings No.AO/0177/NOC/Daspalla/2

dated 08.11.2016. Similarly, the Defence Estate Officer, Visakhpatnam issued

NOC dated 02.07.2009 stating that it is not having any objection of

11

multistoreyed residential complex to be constructed by the petitioner No.1.

Thus after obtaining all the necessary permissions from the authorities

concerned the petitioner No.1 commenced the construction activity in the

said land and continued with the same for a period of one year. Thereafter to

its utter surprise and shock, the respondent Nos.2 and 3 (the Eastern Naval

Command and the 32 wireless experimental unit, Visakhapatnam) issued the

impugned proceedings dated 23.11.2017 to stop any further construction in B-

block and restrict the height to 26.5 metres AMSL in ‘A’ Block

notwithstanding the permission granted by the municipal authority which is

the statutory authority to regulate the construction and building activity in the

municipal limits and admittedly when the subject land falls within the

Municipal Limits of the respondent No.5-Corporation.

6. The counsel for the petitioners submits that the impugned proceedings

of the respondent Nos.2 and 3 dated 23.11.2017 is without jurisdiction and

the respondent No.5 corporation alone is the competent statutory body to

regulate the height of the building and any deviation or alteration illegally

would exclusively fall within the jurisdiction of the respondent No.5 and the

respondent Nos.2 to 4 are not empowered under any provision of law to

regulate the construction of a building. That apart, the respondent Nos. 2 and

3 erred in measuring the height of the building from the sea level instead of

12

measuring the same from the ground level and erroneously issued the above

said impugned proceedings stating that the construction has already reached

15.5 metres and requested to stop the same. Whereas, the building rules

issued under G.O.Ms.No.119 dated 28.03.2017 and G.O.Ms.No.168 dated

07.04.2012 by the Municipal Administration and Urban Development

Department specifically state that height is to be measured abutting the road

and in case of undulated terrain, height can be considered as an average of

ground level and additionally the said GOs also state that the buildings can be

constructed upto the height of 18 metres. The respondent No.5 Corporation

granted building permission with an approval of height at 14.95 metres and

the petitioners raised the building in accordance with the sanctioned building

plan. In view of the same, the impugned proceedings of the respondent No.3

dated 23.11.2017 is liable to be set aside in the interests of justice.

7. On the other hand, the learned Central Government counsel appearing

for the respondent Nos.1 to 4 in W.P.No.8753 of 2018 and the petitioners in

W.P.No.37393 of 2018 submits that NOCs were issued for the constructions

in the above said site for a maximum height of 26.5 mts Above Mean Sea

Level vide HQENC Letter No.AO/0177/NOC/Daspalla dated 08.11.2016,

due to the nature of the military operations being undertaken by the unit in

the adjacent land. The respondent No.3 being the closest and by the nature of

13

operations has been closely monitoring the construction activities as any

violation in the prescribed height in the No objection certificate would have

effected the operational capability and preparedness of the Indian Navy and

could have jeoparadised the national security. The proceedings of the

respondent No.3 dated 23.11.2017 was a gentle reminder to the petitioner

No.1 to respect the no objection certificate issued by the respondent No.4.

The respondent No.4 issued No Objection Certificate taking into account

minimum obstruction to the military operations that could impinge/intrude

the National Security. The No Objection Certificate issued vide letter dated

08.11.2016 has explicitly mentioned the height restrictions of 26.5 AMSL

(Above Mean Sea Level) that needs to be strictly imposed. The AMSL

restrictions are specifically mentioned to avoid any confusion with regard to

the building height. It is specified that the maximum height of the structure

from the ground level will be 15.50 metres.

8. On the other hand, the learned standing counsel appearing for the

respondent corporation submits in common that in case of any deviation of

the building permission granted to the petitioners vide proceedings, dated

13.11.2015 and revised proceedings dated 13.03.2018, the Corporation is

entitled to take appropriate action by following the due procedure.

14

9. In reply to the counter submissions of the respondents counsels,

the counsel for the petitioners submits that the respondent Nos.1 to 4 cannot

improve their case in the form of counter affidavit beyond the scope of the

impugned proceedings dated 23.11.2017. The respondents cannot put forth

any other reason in the form of jeo-paradising the national security which is

not there in the impugned proceedings dated 23.11.2017. Such contention

raised in paragraph 3 of the counter affidavit of the respondent No.3 is not

referred in the impugned proceedings of the respondent No.3 dated

23.11.2017.

10. Such an averment in the counter affidavit of the respondent Nos.1 to 4

is squarely contrary to the decision of the Hon’ble Supreme Court of India

reported in MOHINDER SINGH GILL VS. THE CHIEF ELECTION

COMMISSIONER, NEW DELHI

1

, wherein the five Judges of the Hon’ble

Apex Court held at paragraph 8 of the said judgement as under:

“The second equally relevant matter is that when a statutory functionary makes

an order based on certain grounds, its validity must be judged by the reasons so

mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or

otherwise. Otherwise, an order bad in the beginning may, by the time it comes to

court on account of a challenge, get validated by additional grounds later brought

,out. We may here draw attention to the observations of Bose, J. in Gordhandas

Bhanji {Cmmr. Of Police, Bombay v. Gordhandas Bhanji}

1

(1978) 1 SCC 405

15

Public orders, publicly made, in exercise of a statutory authority cannot be

construed in the light of explanations subsequently given by the officer making the

order of what he meant, or of what was in Ms mind, or what he intended to, do.

Public orders made by public authorities are meant to have public effect and are

intended to effect the actings and conduct of those to whom they are addressed and

must be construed objectively with reference to the language used in the order itself."

11. In view of the above said rival contentions and the decision of the

Hon’ble Apex court, the following issue would fall for consideration:”

“Whether the impugned proceedings of the respondent

No.3 vide No.54804/21/HQ/32 WU dated 23.11.2017 is

sustainable?”

12. From the foregoing contentions and submissions, it is to be seen that

the petitioners entered into a development agreement cum general power of

attorney dated 07.03.2009 for the construction of a multi storied building in

the subject land in an extent of 7,800 square yards, in T.S.No.363A, Block

No.20 of Waltair Ward, Visakhapatnam. Then the petitioner made an

application for building permission to the respondent No.5-Corporation and

the respondent No.5 insisted for submission of No Objection Certificate from

the respondent Nos.1 to 4 (Naval authorities) on the ground that the subject

land lies adjacent to the headquarters 32 involved in military operations and

the same was challenged by the petitioners before the erstwhile High Court of

Andhra Pradesh in W.P.No.7916 of 2012 and the same was disposed of vide

16

order dated 21.03.2012 with a direction not to insist for no objection

certificate from the naval authorities. The petitioners also made an

application to the Environment Forests Science and Technology Department

for approval for construction in the subject land and the same was accorded

vide letter No.7149/CZMA/2012 dated 28.02.2013. Then the petitioner

made an application to the respondent No.5-Corporation for sanction of

building permission with all the relevant documents for examination and after

paying necessary fee, the permission was granted for residential apartment

building consisting of stilt floor for parking and ground + four upper floors

vide proceedings BA No.14674/2013/DCP1/G1 dated 13.11.2015. The

height of the building shown in the said building permit order dated

13.11.2015 is 14.95 metres. The said building permission was sanctioned

subject to the conditions mentioned therein. Subsequently, the petitioners

approached the respondent No.3 (Naval Authority) for issuance of NOC to

undertake the construction activity on the building permit order given by the

respondent No.5 as stated above. Accordingly, the NOC for construction was

given by the said naval authority for the purpose of the above said

construction vide proceedings Quoting: AO/0177/NOC/Daspalla/2 dated

08.11.2016. The Defence Estate Officer, Visakhapatnam also issued No

Objection Certificate dated 02.07.2009 for the purpose of construction of

17

multistoreyed residential complex by the petitioners. Accordingly, the

construction was commenced and at the final stage of the constructions the

respondent No.3 issued the impugned proceedings dated 23.11.2017 to stop

any further construction in ‘B’ block and restrict the height to 26.5 metres

AMSL in ‘A’ Block notwithstanding the permission granted by the

respondent No.5 Corporation. The said impugned proceedings of the

respondent No.3 dated 23.11.2017 reads as under:

“Reply to be addressed

The Officer Commanding

Headquarters

32 Wireless Experimental Unit

C/o Fleet Mail Office

Visakhapatnam 530 014

54804/21/HQ 32 WEU 23 Nov 17

Mr Koteshwar Rao

Managing Partner

G-4, Sunny Side Homes

Waltair Main Road

Opposite Apollo Hospital

Visakhapatnam – 530 003

CONSTRUCTION BEYOND PERMISSIBLE HEIGHT PRESCRIBED IN NOC

ROYAL PALACE RESIDENTIAL APARTMENTS”

1. Refer to HQENC letter AO/0177/NOC/Daspalla/2 dated 08 Nov 16.

2. It is brought to your notice that your firm has been issued NOC vide letter ibid

to construct multi-storey residential apartment upto a height of 15.5 M (26.5 AMSL) in

Survey No.363/a, Zone II, Ward 18 Block 10, Jalaripeta, Waltair which lies adjacent

to HQ 32 WEU involved in military operations. The unit has been closely monitoring

the construction activities of the aforementioned multi-storey building as any violation

18

of height restrictions mentioned in NOC will adversely affect the operational

efficiency/capability of the Indian Navy.

3. On 20 Nov 17, the Unit reps visited construction site and physically measured

the height of the building to confirm whether the height restrictions mentioned in NOC

is being maintained or not. It has come to light that the B Block of the building has

already reached a height of 15.5 M and as per the Site Engineer’s debrief construction

of top floor is yet to begin. The above statement of the Site Engineer violates the

restriction mentioned in para 1(h) and para 2 of letter mentioned ibid. Further, it is

brought to your notice that if at any stage it is established that the data as provided by

your firm is factually incorrect from one submitted, which could adversely affect the

military operations, the structure thereof in respect of the aforesaid building will have

to be demolished at your own cost as directed by the Headquarters Eastern Naval

Command.

4. In view of the above it is requested that any further construction/increase of

height on the B Block be immediately stopped and construction of A block be restricted

to promulgated height 26.5 m AMSL (above mean sea level).

(P.Hemanth Kumar)

Captain

Officer Commanding”

13. As per the above said impugned proceedings, the NOC is given by the

said respondent vide letter dated 08.11.2016 for the construction of multi

storeyed residential apartments upto a height of 15.5 mts (26.5 AMSL) in the

subject land situated adjacent to the respondent No.3 office. It has come to

light that the ‘B’ block of the building has already reached a height of 15.5

mts and as per the Site Engineer’s statement construction of top floor is yet to

begin. Hence, requested to stop further construction/increase of height of the

19

‘B’ block and construction of ‘A’ block be restricted to the promulgated height

of 26.5 metres AMSL. This impugned proceedings of the respondent No.3

dated 23.11.2017 does not indicate issuance of any notice to the petitioners

and conducting of any enquiry by the appropriate authority in order to see

whether the building permit order granted earlier was deviated in any manner

including the height of the said multi-storeyed building.

14. The G.O.Ms.No.168, dated 07.04.2012 of the Municipal

Administration and Urban Development (M) Department deals with the

regulation of the Building activities. As per the Rule 2 sub clause (a), the

‘Competent Authority’ is the respondent No.5 Corporation in respect of the

subject building. Rule 2(e) defines the, “Height of Building” as under:

“2(e) ‘Height of Building’ means height measured from the abutting road and in

case of undulated terrain height can be considered as average of the corresponding

ground level. The parapet wall, staircase head room, lift room, water tank are

excludeds and architectural features in respect of other buildings are excluded.”

Similarly, Rule 2(f) defines the, “High-Rise Building” as under:

“2(f) ‘High Rise Building’ means a building with 18m or more in height.

However, chimneys, cooling towers, boiler rooms, lift machine rooms, cold storage

and other non-working areas in case of industrial buildings and water tanks and

architectural features in respect of other buildings are excluded.”

Admittedly, the subject building is not a High Rise Building.

20

15. Subsequent to the issuance of the above said impugned proceedings

dated 23.11.2017, the respondent No.3 (Naval Authority) caused report of

survey dated 27.11.2017 which determines the height of the construction of

the subject building as 15.3878 metres. In view of the said report,

dated 27.11.2017, the impugned proceedings by the respondent No.3

becomes imaginary and de horse from the truth even on the factual aspect of

the height of the subject building. By virtue of the interim orders of the

erstwhile High Court at Hyderabad for the State of Telangana and the State

of Andhra Pradesh in W.P.No.8753 of 2018 dated 16.03.2018, the

construction of the above said building was completed and so far no

appropriate authority questioned the same on the ground that there is a

deviation from the original building permit order dated 13.11.2015 and the

revised order dated 13.03.2018. Even as per the submissions made by the

learned standing counsel for the respondent No.5 – Corporation as on date no

proceedings are issued to the petitioners on the ground that it has violated the

above said building permit orders dated 13.11.2015 and 13.03.2018.

16. The respondent Nos.1 to 4 (Naval Authorities) also filed writ petition

No.37393 of 2018 seeking a direction to the respondent-Corporation to take

appropriate action against the unofficial respondent Nos.4 and 5 therein for

not making any construction illegally contrary to the above said building

21

permit orders and no objection issued by them dated 08.11.2016. But it is not

preceeded by any correspondence between the naval authorities and the

respondent-Corporation. It has not addressed any letter to the respondent

No.5 against the petitioner in that behalf. As observed above, the report of the

respondent No.3 naval authority itself runs contrary to the above said

proceedings of the respondent naval authorities and as such their attempt to

show that there was a deviation in the said building construction from that of

the permit orders shall fail.

17. Since there is no action initiated by the respondent Corporation so far,

no order can be passed in W.P.No.11408 of 2018 as it becomes infructuous

since the construction was already completed.

18. Accordingly, the W.P.No.11408 of 2018 is dismissed as infructuous.

No costs.

19. Since the violation of the building permit orders was not established,

the W.P.No.37393 of 2018 is also liable to be dismissed.

20. Accordingly, the W.P.No.37393 of 2018 is dismissed. No costs.

21. As the impugned letter of the respondent No.3 (Naval Authority) dated

23.11.2017 is proved to be contrary to the above said building permit orders,

22

dated 13.11.2015 and 13.03.2018, the report of the respondent No.3 itself

dated 27.11.2017 and contrary to the judgment of the Hon’ble Supreme Court

of India reported in the above said decision of MOHINDER SINGH GILL’s

case, the same is liable to be set aside. Accordingly it is set aside.

22. However it is open for the respondent No.5 Corporation to initiate

action in accordance with law in the case of any deviation of the subject

multi-storeyed building from the above said permit orders.

23. Accordingly, the W.P.No.8753 of 2018 is disposed of. No costs.

_______________________________

JUSTICE B.KRISHNA MOHAN

August 17, 2023

Note: LR Copy to be marked

{B/o}

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23

HON’BLE SRI JUSTICE B.KRISHNA MOHAN

WRIT PETITION Nos.8753 of 2018, 11408 of 2018 and 37393 of 2018

August 17, 2023

LMV