ORDER : 1. With the consent of both the parties the Writ Petition itself is taken up for hearing. 2. This Court has heard Sri N. Ashwani Kumar, learned counsel for the petitioners and the learned Government Pleader for Revenue appearing for the 5th respondent and Sri S. Lakshminarayana Reddy, learned standing counsel for the GVMC, appearing for the 2nd to 4threspondents. The main answering respondent is the 2ndrespondent, who has filed a detailed counter. 3. This Writ Petition is filed for the following relief: “….to issue a Writ, order or direction more particularly, one in the nature of “Writ of Mandamus: declaring the notice in Lr.Roc.No.17880/2011/ACP-Ii, dated 06.11.2020 served on the representatives of petitioners on 06.11.2020 issued by the 2nd respondent invoking Section 636 of APMC Act, 1955 as being illegal, arbitrary, lacking application of mind, in violation of principles of natural justice, in violation of provisions of APMC Act, 1955 and in violation of Articles 14, 19 and 300-A of the Constitution of India, and consequently to set aside the notice in Lr.Roc.No.17880/2011ACP-II dated 06.11.2020 issued by the 2nd respondent and pass such other order or orders as this Hon’ble Court may deem fit just and proper in the circumstances of the case.” PETITIONERS’ SUBMISSIONS: 4. Sri N. Ashwani Kumar, learned counsel for the petitioners, draws the attention of this Court to the long history of this case. He points out that the petitioners are the owners of 925 Sq.yards of land or 773 Sq.Mtrs., of property situated in Chinna Waltair, Visakhapatnam. In the said property they are running a hotel in the name and style of Sri Sampath Vinayaka Kamat Hotels. Learned counsel argues that in the year 2011 they had submitted an application to the 2nd respondent-Corporation for approval of the building plan in B.A.No.14472, dated 10.11.2011 seeking permission to construct a temporary AC Sheet roof shed in the said site. As it was neither approved nor rejected, relying upon the deeming provision in the HMC Act viz., Section 437, the petitioners started the construction of the temporary shed. When the 2ndrespondent Corporation sought to demolish the same they filed civil suit in O.S.No.1263 of 2011 before the VI Additional Junior Civil Judge, Visakhapatnam, which was decreed on merits in the year 2015. An interim order initially granted was vacated. Thereafter, C.M.A.No.14 of 2012 was also filed and the same was allowed in April, 2012. When the 2ndrespondent Corporation sought to demolish the same they filed civil suit in O.S.No.1263 of 2011 before the VI Additional Junior Civil Judge, Visakhapatnam, which was decreed on merits in the year 2015. An interim order initially granted was vacated. Thereafter, C.M.A.No.14 of 2012 was also filed and the same was allowed in April, 2012. He, therefore, submits from the date of suit till the decree there was an injunction, later the suit itself was decreed in April, 2015. 5. Learned counsel for the petitioners also submits that in order to protect the subject property and also their customers from dust, rain, heat and pollution they wanted to put another temporary tensile cover (roof) over the existing floor by using flexible and environmental friendly material. This representation was made in July, 2018. Thereafter, learned counsel submits that on 06.11.2020 two notices were served at the same time i.e., at 2.20 p.m., (a) under Sections 452 and 461 of the Municipal Corporation Act and (b) a notice under Section 636 was also served directing the petitioners to remove the deviated portions, unauthorised first floor and also the encroachment on the Government land within 24 hours. Learned counsel relies upon the endorsement made on the said two notices, which are filed as material papers, to argue that they are served at the same moment of time. He submits that the notices are totally contrary to law, rules of natural justice and reflect a clear case of non-application of mind. It is argued by the learned counsel that the section itself mandates a show cause notice and an explanation within a reasonable time. He submits that by giving both the notices at the same moment of time the entire process is vitiated. He also points out that as per the judgment of the Full Bench of the Combined High Court reported in 3 Aces, Hyderabad v. Municipal Corporation of Hyderabad, AIR 1995 AP 17 demolition should not be carried out on holidays, weekends etc. He also argues that the permission was granted for construction of the temporary AC roof shed in the site even before the suit was decreed in its totality. He relies upon the proceedings from the Commissioner to the GVMC and also the approval of the Principal Secretary, dated 18.10.2012, permitting the temporary constructions. He also argues that the permission was granted for construction of the temporary AC roof shed in the site even before the suit was decreed in its totality. He relies upon the proceedings from the Commissioner to the GVMC and also the approval of the Principal Secretary, dated 18.10.2012, permitting the temporary constructions. He also draws the attention of this Court to the judgment and decree in O.S.No.1263 of 2011 and argues that once there is a decree of competent Civil Court the 2nd respondent Corporation cannot take action again to demolish the structures. He also relies upon the compilation of case law, which is filed as a separate material paper. These are under four heads – 1. That the notice under Section 452 should be issued before the power is exercised under Section 636 of the Act; 2. That demolition cannot be a penalty in the absence of public safety etc., being involved and for technical infirmities; 3. That a counter affidavit cannot improve the contents of the impugned proceedings; and 4. That the Commissioner cannot enquire into the title of the property. This is the sum and substance of the submissions made by the learned counsel for the petitioners. RESPONDENTS CONTENTIONS: 6. On behalf of the 5th respondent a counter affidavit is filed. It is argued that the petitioners have occupied 290 sq.yards of Government land in Sy.No.30 which is classified as of a “Vague Poramboku” (Water channel/Water body). Learned Government Pleader for Revenue argues that a duty is cast upon the Courts as per the settled law on the subject to protect the Vagu Poramboku, Gadda Poramboku and other water bodies. Learned Government Pleader argues that the petitioners have also applied for regularisation of the encroachment of Government land. The said proposal was actually rejected by the Government on 25.09.2020. It is submitted that the request for regularisation of this encroachment was negatived on the ground that the land is Vagu Poramboku. Learned Government Pleader argues that the petitioners have suppressed these facts in the writ affidavit. It is also stated that in this occupied bit of land AC roof sheds were also constructed. He relies upon the GOs., which are mentioned in his counter affidavit, and also the settlement Fair Adangal, which shows that the land in Sy.No.130 is classified as Vague. He argues that this is a permanent record. It is also stated that in this occupied bit of land AC roof sheds were also constructed. He relies upon the GOs., which are mentioned in his counter affidavit, and also the settlement Fair Adangal, which shows that the land in Sy.No.130 is classified as Vague. He argues that this is a permanent record. Lastly, he submits that the circular, dated 22.04.2013, issued by the Collector and District Magistrate clearly states that the water bodies, Tank Poramboku lands should not be alienated, regularised etc. 7. The learned standing counsel for GVMC also submitted a forcible argument in this case. According to him the first notice under Section 452, dated 29.10.2020, was sought to be served on the petitioners. As their staff had refused to receive the said notice it was affixed to the wall of the premises. He, therefore, submits that as no reply was received for the show cause notice dated 29.10.2020 a final order was passed on 06.11.2020. He relies upon the endorsement given by the staff of the Corporation, who stated that they have affixed the first Notice dated 29.10.2020 on the wall of the premises. He, therefore, argues that there is a valid service. He points out that the self serving endorsement is made by the petitioners’ own people on their office copy stating that both the notices were served on 06.11.2020 at 2.20 p.m., but not on the GVMC copy. 8. He also argues that the initial building plan that was given was for construction of temporary AC sheet shed only. He points out that what was permitted by the approval on 18.10.2012 was only an AC sheet roof shed, which was subject to certain conditions. However, contrary to the same, the 1st floor was also constructed on this shed. Therefore, it is his contention that what is actually built is not a temporary AC shed as per the approved plan. 9. Coming to the 1stfloor that is constructed, learned standing counsel submits that the petitioners had applied in 2018 for grant of a building permission over the existing AC sheet shed. This was not formally granted and an endorsement dated 08.08.2018 was issued to the petitioners informing them that the temporary structures over the existing AC Roof sheet shed would be permitted subject to certain conditions. This was not formally granted and an endorsement dated 08.08.2018 was issued to the petitioners informing them that the temporary structures over the existing AC Roof sheet shed would be permitted subject to certain conditions. The most important of which was that the petitioners have to obtain the change of land use from open space / recreational area to commercial use. Learned standing counsel argues that till date the said permission is not been granted and despite the same the 1stfloor was constructed and is being used for a wholly commercial purpose viz., the running of an air conditioned restaurant in two floors. He also submits that even if there is an approved building plan still no activity can be carried out in the property without obtaining an occupancy certificate. It is his contention that obtaining of occupancy certificate is mandatory under the law and particularly Section 455 (1) and (2) read with 26 of the A.P. Building Rules. Relying upon the orders passed in W.A.No.1156 of 2017 learned standing counsel argues that the petitioners should not be permitted to carry on commercial operations. Thereafter, coming to the occupation of the Government land learned standing counsel submits that the petitioners have occupied the Government land and have constructed a shed etc., in the said occupied Government land. They do not have right to construct in the occupied place. He also submits that the petitioners have suppressed all these facts and particularly W.P.No.16425 of 2014, which was filed by the very same petitioners against the action proposed to be taken in 2014 for demolition of the structures in the occupied land. He points out that when the structures were sought to be demolished the petitioners themselves, through his counsel, agreed to remove the remaining portion of the shed within two days and also stated that they would not raise any constructions without the prior permission. Learned counsel points out that in total contravention of what is agreed in this order the present constructions were carried out. Relying upon the case law learned standing counsel argues that the Court should be firm in such cases and the Court should not permit the people who have exploited the law to get any advantage. Learned counsel points out that in total contravention of what is agreed in this order the present constructions were carried out. Relying upon the case law learned standing counsel argues that the Court should be firm in such cases and the Court should not permit the people who have exploited the law to get any advantage. It is his contention that any order granted would send a wrong message to the public and he argues that there is a long line of case law which clearly stated that the unauthorised constructions should not be allowed to stand. REJOINDER: 10. Learned counsel for the petitioners has filed a rejoinder to the counter affidavit filed by the Municipal Corporation. Learned counsel for the petitioners again reiterates the arguments on similar lines and submits that the issuance of two notices on the very same day vitiates the entire proceedings. He, therefore, states that as the petitioners have been in settled possession and enjoyment of the property they should be allowed to continue. CONSIDERATION BY THE COURT: 11. The first and foremost issue that has to be considered by this Court is the effect of the Decree of the Civil Court in O.S.No.1263 of 2011, which was passed on 07.12.2015. The suit is filed on the ground that the plan that was submitted for approval of construction of a temporary structure in the land belonging to the petitioners was neither rejected nor approved within the stipulated time. Hence, the plaintiffs/petitioners argued that the construction is “deemed to be approved” and cannot be demolished. Relying upon a deeming provision the suit was filed. The matter went to trial and after considering the oral and documentary evidence the trial Court granted a decree by granting a permanent injunction in favour of the plaintiffs 1 and 2 restraining the defendant in the suit not to interfere with the structure in the suit schedule property, which was subject to reclassification of the plaint schedule area from CRW-III to CRZ-II. This decree and judgment is passed for the property (temporary shed) which is situated in the site measuring 925 sq.yards of land. It is clearly mentioned that in the plaint schedule (which is filed as a material paper) that within the property is a temporary shed, which was under construction. This decree and judgment is passed for the property (temporary shed) which is situated in the site measuring 925 sq.yards of land. It is clearly mentioned that in the plaint schedule (which is filed as a material paper) that within the property is a temporary shed, which was under construction. The boundaries of this property are described as follows: “East Property of Buddiga family South Burial ground site West Bheemili Beach Road North Drain” North Drain” 12. This Court also notices that the permission that was also formally granted for construction of this temporary shed in B.A.14472/11/ACP II/G2, dated 09.11.2012. Setbacks that were permitted are also mentioned. This is preceded by a memo dated 18.10.2012, by which the Principal Secretary to the Government directed the GVMC to accord permission for construction of “Temporary constructions only” (AC sheet roof shed). This is subject to reclassification as per the CRZ norms and all other land use and other building regulations. Therefore, the decree as it stands in favour of the petitioners is for a temporary AC Roof Shed only with particular setbacks etc., in a demarcated bit of land and for nothing more. FIRST FLOOR AND “LAND” OCCUPIED: 13. Coming to the first floor that has now been added to the building, in the writ affidavit that is filed it is clearly mentioned that the petitioners wanted to put up temporarily another roof over the existing floor by using flexible and environmental friendly material. This proposal was moved on 04.07.2018. In the counter affidavit, the endorsement dated 08.08.2018 by which this request was kept in abeyance by the respondent is filed. It is clearly stipulated that the petitioners should comply with the following conditions: 1. The applicant has to obtain change of land use form open space & recreational use to Commercial use. 2. The applicant shall provide parking area as per prevailing norms. 3. The applicant shall obtain prior clearance form APCZMA as the subject site is falling under CRZ. 14. The counter affidavit filed by the Revenue Department represented by the Tahsildar clearly shows that the proposal submitted by the petitioners for change in land use was in fact negatived. Learned Government Pleader pointed out that as there is vaagu or water body the same could not be regularisedin view of the law on the subject and also the relevant GOs. Learned Government Pleader pointed out that as there is vaagu or water body the same could not be regularisedin view of the law on the subject and also the relevant GOs. Apart from this, this Court also notices that the petitioners had filed W.P.No.16425 of 2014 and a copy of the order passed on 16.06.2014 is enclosed. In that case, it was argued that the subject land is a Government land and that the proposals for regularisation are still pending. After recording the submissions of the learned counsel for the petitioners and the respondents, the High Court permitted the petitioners to remove the unauthorised constructions. The petitioners also gave an undertaking to the Court that they would not raise any further constructions without prior permission from the GVMC. The Writ Petition was closed recording the said submissions. The order passed in W.P.No.16425 of 2014 clearly shows that the petitioners did not have permission for construction; that they have clearly admitted that the part of the land (which is the subject matter of the present dispute), is Government land which is occupied. Therefore, as far as the first floor is concerned it is clear that the petitioners have not been able to demonstrate before this Court that the three conditions stipulated in the endorsement dated 08.08.2018 have been complied with or that the same is an approved construction in land for which the petitioners have title. 15. Apart from this a lot of case law was also cited about the Commissioner of the GVMC deciding on the title to the property. This Court is of the opinion that in view of the clear and categorical conduct of the petitioners -by applying for regularisation, they are estopped from changing their stand. The admissions recorded by this Court in W.P.No.16425 of 2014 (which is not challenged anywhere else) make it clear that the petitioners clearly admitted that they have occupied the Government land and pending consideration of their application for regularisation, coercive action was being taken by the GVMC. It was also agreed that they would not make any further constructions without prior permission from the GVMC. These aspects highlighted in the counter affidavits are not controverted. It was also agreed that they would not make any further constructions without prior permission from the GVMC. These aspects highlighted in the counter affidavits are not controverted. This Court has to conclude that the petitioners had occupied Government land; that they did not get it regularised and that they had made constructions including the first floor contrary to the undertaking given by them in the Court also. They do not also have an approved plan for the first floor. OCCUPANCY CERTIFICATE: 16. Coming to the issue of the Occupancy Certificate the learned standing counsel for GVMC vehemently argued that no commercial activity can be started nor can the building be occupied without obtaining the occupancy certificate. Learned standing counsel relying upon the counter affidavit filed argued that the decree passed by the Civil Court would only apply to the temporary shed in the ground floor and that it does not authorise the petitioners to make a construction in the first floor and convert the land and building for commercial purpose without prior approval and without Occupancy Certificate. Learned counsel for the petitioners, however, argued that the issue before this Court is about the manner of service of two notices flouting the rules of natural justice etc. He submits that the issue of Occupancy Certificate is now being added as an additional ground against the petitioners. Relying upon the case law that he has submitted, including the well-known judgment of Mohindhr Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 learned counsel argued that such an improvement should not be permitted and that the contents of the noticesalone have to be taken into consideration and further improvements cannot be considered. The case law on the subject is not in doubt. But this Court notices that the permission that has been granted to the petitioners in 2012 clearly mentions that they are permitted to make temporary construction only subject to the outcome of the case and reclassification of the land from CRZIII to CRZ-II by ensuring that no pollution shall occur and duly following CRZ norms, all other manuals and other building regulations. The actual endorsement issued to the 1st petitioner on 25.10.2012 also supports this contention of the learned standing counsel for the respondents that it shall be subject to the land use and building regulations. 17. The actual endorsement issued to the 1st petitioner on 25.10.2012 also supports this contention of the learned standing counsel for the respondents that it shall be subject to the land use and building regulations. 17. While it is true that there is an order passed in favour of the petitioners restraining the respondent from demolishing the AC sheet in the ground floor, the fact, however, remains that the approval for occupancy is governed by Section 455 of HMC Act. A person who wishes to occupy and use a building shall have to seek the completion certification. However, this Court does not wish to go further into this area of controversy. The GVMC has to take action as warranted by law on this issue. It cannot be urged as a ground of defence in the present Writ Petition. It is left open to the GVMC to pursue the issue. TWO NOTICES: 18. The last issue that survives for consideration is whether the available record shows that both the notices under Sections 452 and 636 were served at the same time. The petitioners have filed copies of the notices with an endorsement thereon that they were served on 06.11.2020 at 2.20 p.m. The endorsement is made by one Sri K.V. Subba Raju for the petitioners. Relying on this endorsement on the two notices, dated 29.10.2020, and 06.11.2020 learned counsel argued that these two notices were issued at one moment only. It is his contention that hence the entire exercise is vitiated. 19. In reply to this the Corporation has come up with the contention that the 1stnotice dated 29.10.2020 was affixed on the wall on the premises as the petitioners staff did not receive the said notice. Thereafter, it is asserted that the 2ndnotice was issued on 06.11.2020. In fact, the copy of the notice dated 06.11.2020 filed by the GVMC shows that it was in fact served at 2.20 p.m. However, the copy of the notice dated 29.10.2020 filed by the GVMC does not contain any endorsement. The GVMC has also filed the proceedings by which the Municipal staff has confirmed that they attempted to serve the Notice dated 29.10.2020 on the hotel owners. As per this the hotel owners were not present at that place and the staff refused to receive the notice. The GVMC has also filed the proceedings by which the Municipal staff has confirmed that they attempted to serve the Notice dated 29.10.2020 on the hotel owners. As per this the hotel owners were not present at that place and the staff refused to receive the notice. Therefore, they state that they have affixed the notice on the wall on 31.10.2020 at 10 a.m. 20. This Court notices that the affidavit of Sri K.V. Subba Raju, who made the endorsement has not been filed in this case. The affidavit in this case was sworn by the owner of the hotel. The endorsement is made on the copies that were served to the petitioners by Sri K.V. Subba Raju. In addition, an endorsement is normally given in “receipt” of a notice/document. This Court could have attached greater value to the endorsement if it is present on the notices which are with the respondent Municipal Corporation. The 1stnotice dated 29.10.2020 does not contain any endorsement of the petitioners or their representative. The 2ndnotice dated 06.11.20202 contains an endorsement of the time / date. Hence, this Court cannot come to a firm conclusion that both the notices were served on 06.11.2020 at the same. If the endorsement of time / date of service are there on the document with the GVMC, this Court could have decided otherwise. 21. In addition, the GVMC specifically stated that when the notice was sought to be served the owners were not present and as the staff refused the same it was affixed on the wall. A document to this effect was also filed. There is a presumption in law that official acts are validly performed. This is not rebutted. In the light of the above discussion this Court has to hold that the petitioners could not prove that the notice dated 29.10.2020 was actually served on 06.11.2020 (with the final order). CONCLUSION: 22. After examining the contents of the notices dated 29.10.2020 and 06.11.2020 this Court notices that the site in which the sanction was given for construction is 663.71 sq.mtrs., whereas the actual site on the ground is 1065.60 sq.mtrs., All the setbacks on the front, rear and sides are flouted. In fact, there are no set backs on the front, rear and the side. The number of floors sanctioned was one floor. Construction was made for ground + first floor. In fact, there are no set backs on the front, rear and the side. The number of floors sanctioned was one floor. Construction was made for ground + first floor. The road widening area is also occupied. There is a specific reference to the notice dated 29.10.2020 being given to the petitioners and their failure to give a reply. The Municipal Corporation has specifically pointed out the deviations and the occupation of the Government land. It was also clearly specified that the petitioners had violated the provisions of the A.P. Municipal Corporation Act. It is specified that the petitioners should remove the deviated portions including the unauthorised first floor and vacate the encroachment in the Government land. The petitioners have only got a decree in their favour for a particular site measuring 925 sq.yards or 773 sq.meters along with one temporary roof shed therein. All other constructions made either in the first floor or in the neighbouring/abutting land (which as per the petitioner’s own application for regularisation etc., is Government land) are unauthorised constructions. The respondents 2 to 4 are therefore given liberty to remove all the unauthorised constructions viz., (a) the 1st floor (b) constructions made in the land which is occupied by the petitioners. 23. The impugned notice also clearly states that it is being given in order to restore the entire building to the conformity with the approved plan. Therefore, all the other structures, not in conformity with the approved plan, are directed to be removed immediately. As far as the land occupied is concerned, the State can take steps as per law to recover possession. 24. In view of the conclusions, this Court has reached that the notices were not served on the same day this Court holds that there is no failure of natural justice or compliance with the provisions of Sections 452 and 636 of the Act. Therefore, this Court holds that the case law which is peculiar to the facts and circumstances of the respective cases is not applicable to the present case. 25. Learned counsel also relied upon the lot of case law to argue that the Commissioner cannot decide on the issue of title etc. This was relating to the land occupied by the petitioners. As pointed out by this Court, the Commissioner is not “deciding” the title about the land which is occupied by the petitioners. 25. Learned counsel also relied upon the lot of case law to argue that the Commissioner cannot decide on the issue of title etc. This was relating to the land occupied by the petitioners. As pointed out by this Court, the Commissioner is not “deciding” the title about the land which is occupied by the petitioners. The petitioners own conduct in applying for regularization of the land makes it clear that it is the Government land. Even in the Writ Petition No.16425 of 2014 there is a clear admission that the land is Government land. In that view of the matter, this Court holds that the said case law is also not applicable. The conduct of the petitioners is not free from doubt. Without approvals the second floor is raised. Setbacks etc., are violated and the existing structure is not as per the approved plan and within the petitioners own site. Hence, this Court has to direct the removal of all the unauthorized structures which are contrary to the approved plan. 26. For all the above reasons, this Writ Petition is dismissed. There shall be no order as to costs. 27. Consequently, the miscellaneous applications, pending if any, shall also stand dismissed.