A perusal of the impugned notice shows that respondent No. 1 has not dealt with the explanation of the petitioner and has rejected the same with a cryptic observation that the same is not satisfactory and "it may not be considered". In the opinion of this Court, the very purpose of issuing a notice under Section 452(1) of the Act is to give an opportunity for a person, who has constructed the building in an illegal or unauthorised manner, to submit his explanation. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, respondent No. 1 is not entitled to proceed further. Unless the Commissioner refers to the contents of the explanation and gives reasons for coming to the conclusion that the explanation is not satisfactory, he cannot proceed with further action and issue notice under Section 636 of the Act. Failure to deal with the explanation renders the very purpose of issuing notice nugatory.{Para 7}
8. As noted above, the Commissioner failed to deal with the plea of the petitioner raised in the explanation that the additions or alterations or repairs effected by him do not fall under Section 433 of the Act. The Commissioner, therefore, ought to have referred to the nature of the structure raised by the petitioner in comparison with the pre-existing structure and given his reasons for his satisfaction that construction made by the petitioner falls under Section 433 of the Act warranting action under Sections 452(1) and 636 of the Act. As the Commissioner failed to give any such reasons, the impugned notice cannot be sustained in law and the same is accordingly set aside.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Writ Petition No 18839 of 2011,
Poonamchand and Ors. Vs. Greater Hyderabad Municipal Corporation and Ors.
Hon'ble Judges/Coram:
Hon'ble Sri Justice C.V. Nagarjuna Reddy
Decided On: 19.09.2011
1. At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties.
2. This writ petition is filed for a mandamus to set aside notice bearing No.01/ACP/C5/GHMC/S2/2011, dated 02.07.2011, in respect of premises bearing Nos.15-5-581/1, 15-5-581/2 and 15-5-581/3 in Survey Nos. 17 and 19 of Thotaguda Village, Nampally Mandal, Hyderabad District.
3. The petitioner claims that his father and uncle purchased land admeasuring Ac.0.30 guntas in Survey No. 17 and Ac.0.24 guntas in Survey No. 19 from one Mali Muthemma, who claimed to be the pattadar and possessor of the said land, by way of an unregistered sale deed on payment of Rs.925/- as consideration. After the demise of the petitioner's father in the year 1960 and his uncle in the year 1979, the petitioner along with his two brothers claim to be in possession of the property. When the petitioner approached the Mandal Revenue Officer, Musheerabad, he was informed that the property was recorded as Government land in the pahanies for the year 1982-83. That the petitioner approached the District Revenue Officer, Hyderabad for correction of entries and after a detailed enquiry, the District Revenue Officer has issued proceedings, dated 07.03.1987, directing correction of entries and restore title of Mali Muthemma and that thereafter, the Mandal Revenue Officer has effected mutation in favour of the petitioner along with his two brothers and passbooks were also issued in the name of the petitioner and his two brothers. In the appeal filed against the said order by one Smt. Laxmamma and another, the parties are relegated to civil Court, which order was confirmed in W.P. No. 5603 of 1991 and that the petitioner filed O.S. No. 1796 of 1997 in the Court of the learned IV Additional District Judge, City Civil Court, Hyderabad for permanent injunction against the said person and the said suit was decreed on 23.10.1997. The appeal filed against the said judgment and decree in A.S. No. 14 of 1998 was dismissed on 24.09.2001 by the Court of the learned X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad.
4. The petitioner further averred that the Joint Collector, Hyderabad District issued proceedings, dated 20.01.1995, declaring that the schedule property is an escheat land. W.P. No. 34794 of 1998 filed questioning the said order was disposed of by this Court by order, dated 31.08.2005, by setting aside the proceedings of the Joint Collector and held that the invocation of the provisions of Andhra Pradesh Escheats and Bona Vacantia Act, 1974 is not permissible. When respondent Nos.1 and 2 sought to remove the sheds erected by the petitioner in the year 2006 for carrying on banana fruit business, the petitioner filed W.P. No. 27182 of 2006, wherein an order of status quo was initially granted. Thereafter, when the matter was further heard, the learned Standing Counsel appearing for respondent Nos. 1 to 3 represented that they are not contemplating to interfere with the petitioner's possession, and accordingly, the writ petition was disposed of recording the said submission. The petitioner averred that the respondents visited the premises in the month of June, 2009 and tried to interfere with" his possession on which he approached respondent Nos. 1 and 2 and has shown the order of this Court, on which, they have stopped interference.
5. The petitioner further averred that again respondent No. 1 visited his premises and issued show-cause notice, dated 20.06.2011, under Sections 452(1) and 461(1) of the Greater Hyderabad Municipal Corporation Act, 1955 (for short 'the Act'). The petitioner submitted his reply, dated 25.06.2011, wherein he has stated in detail that he has erected a structure replacing the earlier structure and that the same does not constitute erection of a building within the meaning of Section 433 of the Act and that therefore, the provisions of Section 452(1) and 461(1) of the Act are not attracted. Purporting to consider the said explanation, respondent No. 1 has issued the impugned notice under Section 636(1) of the Act, whereby the petitioner is directed to remove AC sheet shed within 24 hours, failing which, the same will be removed by the Corporation. This notice is challenged in this writ petition.
6. At the hearing, Sri S. Niranjan Reddy, learned counsel for the petitioner, stated that the petitioner has merely replaced the existing temporary structure with another similar structure and therefore, the same does not amount to erection or re-erection of a building within the meaning of Section 433(1) of the Act or causing material alteration under Section 428(2) of the Act.
7. A perusal of the impugned notice shows that respondent No. 1 has not dealt with the explanation of the petitioner and has rejected the same with a cryptic observation that the same is not satisfactory and "it may not be considered". In the opinion of this Court, the very purpose of issuing a notice under Section 452(1) of the Act is to give an opportunity for a person, who has constructed the building in an illegal or unauthorised manner, to submit his explanation. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, respondent No. 1 is not entitled to proceed further. Unless the Commissioner refers to the contents of the explanation and gives reasons for coming to the conclusion that the explanation is not satisfactory, he cannot proceed with further action and issue notice under Section 636 of the Act. Failure to deal with the explanation renders the very purpose of issuing notice nugatory.
8. As noted above, the Commissioner failed to deal with the plea of the petitioner raised in the explanation that the additions or alterations or repairs effected by him do not fall under Section 433 of the Act. The Commissioner, therefore, ought to have referred to the nature of the structure raised by the petitioner in comparison with the pre-existing structure and given his reasons for his satisfaction that construction made by the petitioner falls under Section 433 of the Act warranting action under Sections 452(1) and 636 of the Act. As the Commissioner failed to give any such reasons, the impugned notice cannot be sustained in law and the same is accordingly set aside. The Commissioner is directed to consider the explanation, dated 25.06.2011, and further explanation, if any, that may be filed by the petitioner within two weeks from today and pass a detailed order, if he has any reason not to accept such explanation before taking further action under Section 636 of the Act.
9. Subject to the above observations, the writ petition is allowed.
10. As a sequel to disposal of the writ petition, W.P.M.P. No. 22758 of 2011 and W.V.M.P. No. 2795 of 2011 are disposed of as infructuous.
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