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, 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. W.P.Nos.8753 and 11408 of 2018: 5. 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. 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 1st 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 1st petitioner made an application to the Environment 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 1st 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. 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 1st petitioner upon sanction of building permission made an application to the respondent No.3 (the 32 wireless experimental unit, Headquarters, 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 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 Bblock 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 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. That apart, the respondent Nos. 2 and 3 erred in measuring the height of the building from the sea level instead of 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 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. 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. 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, (1978) 1 SCC 405 , wherein the five Judges of the Hon’ble Apex Court held at paragraph 8 of the said judgment 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. 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} 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 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. 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 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 Mr Koteshwar Rao Managing Partner G-4, Sunny Side Homes Waltair Main Road Opposite Apollo Hospital Visakhapatnam – 530 003 23 Nov 17 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. 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 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 ‘B’ block and construction of ‘A’ block be restricted to the promulgated height of 26.5 metres AMSL. Hence, requested to stop further construction/increase of height of the ‘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. 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 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, 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.