V. V. S. RAO, J. ( 1 ) THE petitioner claims to be the owner of house bearing Door No. 15/288 (new no. 15-4-325) situated at S. V. N. Road, Warangal. He became owner of the said house by reason of partition decree passed by the Court of the District Judge, warangal in O. S. No. 190/1 of 1951. The house is a tiled house. With a view to change the roof from country tiles to that of RCC (reinforced concrete construction), he applied for permission to the first respondent for construction of ground floor. At the relevant time, Warangal town was a selection grade municipality. As no orders were passed either granting or rejecting permission, he allegedly waited for 120 days and commenced construction. The Municipality issued provisional order of demolition on the ground that he did not obtain permission. He submitted explanation. But the municipality passed orders on 6-5-1993 ordering demolition for violation of Rule 9 (2) (i) (a) of the Building Rules contained in Schedule III of the A. P. Municipalities Act, 1965 ( the Act ). Aggrieved by the same, the petitioner filed O. S. No. 360 of 1993 on the file of the Court of the II additional District Munsif, Warangal seeking a declaration that the order dated 6-5-1993 is null and void and without jurisdiction. The petitioner alleged that without considering his explanation the first respondent passed the order dated 6-5-1993. He also obtained ad interim injunction. Still the suit is pending. Thereafter, the first respondent issued a show cause notice under Section 42 of the A. P. Urban Areas (Development) Act, 1975 to show cause as to why action for demolition of the house constructed by the petitioner should not be taken. The petitioner again filed a suit being O. S. No. 279 of 1994 on the file of the principal Senior Civil Judge, Warangal for permanent injunction restraining kakatiya Urban Development Authority (KUDA) from interfering with his possession. The application for interim injunction being I. A. No. 1776 of 1995 was rejected by the trial Judge whereupon the petitioner filed an appeal being c. M. A. No. 14 of 1995 and obtained ad interim injunction pending the appeal. Both the suits are pending. ( 2 ) IN the meanwhile, master plan was sanctioned for Warangal municipal corporation. The application for interim injunction being I. A. No. 1776 of 1995 was rejected by the trial Judge whereupon the petitioner filed an appeal being c. M. A. No. 14 of 1995 and obtained ad interim injunction pending the appeal. Both the suits are pending. ( 2 ) IN the meanwhile, master plan was sanctioned for Warangal municipal corporation. As per the master plan, S. V. N. Road was proposed to be widened to 50 feet. Having regard to Section 17 of the A. P. Urban Areas (Development) Act, the petitioner issued a notice to the Government of Andhra Pradesh calling upon them to acquire the land forming part of house No. 15/288 (New No. 15-4-325 ). But the government did not take any action to acquire the land and, therefore, it cannot be compulsorily acquired for road widening. ( 3 ) THE petitioner applied for permission for construction of first floor and made application on 1-1-1997. The petitioner alleges that in spite of approaching the Commissioner to know about the planning fees and development charges, the first respondent did not mention the amount. He also alleged that he issued a registered letter dated 29-1-1997 requesting to inform about the amount payable by him, in vain. Be that as it is, the respondent issued a memo rejecting the application for permission on 31-1-1997. This rejection notice is challenged by the petitioner in this writ petition. ( 4 ) THE impugned order/memo dated 31-1-1997 was issued rejecting the application on the following grounds. 1. Adjacent and behind site is contrary to building rules and zoning regulations. 2. Property tax receipts up to 31-3-1997 are not filed. 3. Building plan is not in accordance with regional development plan -R. D. No. 10/a/75. 4. Site covered by the road has not been properly shown in the plan (as per r. D. No. 10/a/75 ). 5. Building licence fee and KUDA development charges are not paid. Learned counsel for the petitioner, Sri Bankatlal Mandhani made submissions with reference to the five objections noticed hereinabove. I will consider these one after the other. ( 5 ) THE first ground on which the application was rejected is that the petitioner did not leave set backs in accordance with the building regulations. Learned counsel for the petitioner, Sri Bankatlal Mandhani made submissions with reference to the five objections noticed hereinabove. I will consider these one after the other. ( 5 ) THE first ground on which the application was rejected is that the petitioner did not leave set backs in accordance with the building regulations. Learned counsel for the petitioner submits that the set back rules do not apply to the first floor of the building as per Rules 9 (4) and 9 (8) of the Building rules of Schedule III of the Act. Secondly, he would urge that as per the draft variation issued by the Govt. of Andhra Pradesh in exercise of power conferred under Section 245 of the A. P. (Telangana Area) District Municipalities act, 1956, the petitioner has complied with set back rules. Rule 9 of the Building Rules of Schedule III deals with space about buildings and height of the building. Sub-Rules (4) and (8) of Rules 9 read as under. 9 (4) Between the rear boundary of every building site and the building itself, there shall be an open space exclusively belonging to such building and extending laterally throughout the width of the site to a depth of not less than 3 metres: provided that where this depth cannot be obtained throughout the entire width of the site by reason of the exceptional shape of the site or other exceptional circumstances, it shall suffice if the mean depth is not less than three metres. Note: This sub-rule shall not apply to huts. 9 (8) The open space required to be left in and around a building under sub-rules (2), (4) (5) and (7) shall be measured at the level of the proposed construction, reconstruction, conversion or addition or alteration proposed on any floor other than the ground floor, being taken to be the line along that floor vertically above the boundary line on the ground. ( 6 ) AS per the above sub-rules, between the rear boundary of the building and building itself there shall be open space exclusively belonging to the building extending laterally throughout the width of the site to a depth of not less than three metres. Sub-rule (8) deals with space around the building in relation to any floor other than ground floor. According to the said sub-rule, open space required to be left in and around first floor etc. Sub-rule (8) deals with space around the building in relation to any floor other than ground floor. According to the said sub-rule, open space required to be left in and around first floor etc. being taken to be the line along that floor vertically above the boundary line on the ground. Having regard to this, it is not possible to accept the submission of the learned counsel that set back rules have no application to the first floor or other floors other than ground floor. Even while constructing first floor, second floor etc. , the rule of set back has to be followed as contained in sub-rules (2), (4) (5) and (7) of Rule 9 of the Building Rules. Sub-rule (8) of Rule 9 specifically provides about the open space required to be left in and around the building when first floor, second floor etc. are constructed on the existing ground floor. ( 7 ) IN Telu Nagaratnam v. Municipal Counci, Kakinada1, this Court considered the scope and ambit of Rule 9 (4) of the Building Rules. It was held as under. It can at once be seen from the above sub-rule that the open space required to be left under sub-rule (4) shall be measured at the level of the proposed construction, reconstruction, addition or alteration on any floor other than the ground floor, a line being taken along with the floor vertically above the boundary line on the ground. So if three metres of open space is left between the rear boundary of the building site and the building itself as required under rule 9 (4) the same three metres of open space has to be left at every floor level. But in this case there is no dispute that the three metres of open space as required under sub-rule (4) is not there in the ground floor. For the construction of the ground floor permission was granted by the defendant in the year 1966. Now the plaintiff has only applied for construction of the first floor on the existing ground floor. She has not made any projections in the first floor beyond the ground floor. The extent of open space between the building site and the building at the ground level was also left at the level of the first floor. Now the plaintiff has only applied for construction of the first floor on the existing ground floor. She has not made any projections in the first floor beyond the ground floor. The extent of open space between the building site and the building at the ground level was also left at the level of the first floor. Can the defendant even then insist on leaving 3 metres of space at the level of the first floor? A careful and close reading of rule 9 (4) and (8) together drives to the inescapable conclusion that a person constructing a building has to maintain the same open space at any upper floor level as that left between the boundary line of the site and the building, a line being taken vertically above the boundary line on the ground along with the floor. So read, the refusal of permission to the plaintiff for the construction of the first floor on the existing building appears to be highly arbitrary and illegal. ( 8 ) WHILE laying down that open space between the building site and the building at the ground level has to be maintained at every floor level, this Court observed that a person constructing a building has to maintain the same open space at any upper floor level as that left between the boundary line of the site and the building. Therefore, the submission of the learned counsel for the petitioner that set back rules do not apply to the construction made in the first floor is devoid of any merit. By G. O. Ms. No. 364, Housing, Municipal Administration and Urban Development (M. A.) department, dated 4-6-1977, as noticed above, the Government of Andhra Pradesh issued draft variations to the master plan in Warangal Municipality. Insofar as residential purposes are concerned, the Government made special regulations vide paragraph 3 of the said Government Order which prescribe the following minimum set back lines. ( 9 ) THE second ground on which the petitioner s application for building permission was rejected is that he did not file the property tax receipts. The petitioner has produced all the tax receipts to show that he has paid the necessary municipal levies. Therefore, the objection raised by the impugned memo is not sustainable. ( 9 ) THE second ground on which the petitioner s application for building permission was rejected is that he did not file the property tax receipts. The petitioner has produced all the tax receipts to show that he has paid the necessary municipal levies. Therefore, the objection raised by the impugned memo is not sustainable. The other grounds for rejection of the application are that the plan submitted by the petitioner is not in accordance with the regional development plan R. D. No. 10/a/75 and that the site covered by the road has not been properly shown in the building plan. Learned counsel for the petitioner has placed before me the plan of proposed construction of first floor on the existing ground floor in Door No. 15/288 which shows that the petitioner has left open space. For this reason, I am satisfied that though the petitioner has not constructed ground floor according to the master plan, he has left open space in the first floor presumably to be in tune with the regional development plan. Therefore, the objection raised by the Municipality cannot be sustained. ( 10 ) THE last objection is that the petitioner did not pay the planning fees and development charges. In paragraph 9 of the affidavit accompanying the writ petition, the petitioner states that he personally met the Town Planning Officer for advising him about the amount to be paid towards planning fees and development charges, in vain. This averment stands uncontroverted. Therefore, this objection of the first respondent also cannot be sustained. In view of my findings above, the impugned Memo of rejection dated 31-1-1997 cannot be held to be illegal. The writ petition is, therefore, liable to be dismissed. However, it is open to the petitioner to submit a fresh building plan duly paying the building licence fee and KUDA charges and produce all the property tax receipts. It is made clear that the petitioner shall leave the necessary set backs as per G. O. Ms. No. 364, dated 4-6-1977 and also leave required space for road widening as per the master plan/regional development plan r. D. No. 10/a/75. In this writ petition, no direction can be given, as it is for the Commissioner to decide the matter whether the petitioner complied with all the requirements of law. No. 364, dated 4-6-1977 and also leave required space for road widening as per the master plan/regional development plan r. D. No. 10/a/75. In this writ petition, no direction can be given, as it is for the Commissioner to decide the matter whether the petitioner complied with all the requirements of law. ( 11 ) THE writ petition, for the above reasons, fails and is accordingly dismissed with the above observations.