The Commissioner of the Hyderabad Municipal Corporation has the discretion to order the demolition of a building constructed without prior permission, but this discretion must be exercised reasonably and not arbitrarily or capriciously.

GANGADHARA RAO, J.

( 1 ) THE question for our consideration in this appeal is whether the Hyderabad Municipal Corporation has no option but to direct demolition of a building which was constructed without the prior permission of the Municipal Corporation? It arises this way: The respondent obtained on lease the land and buildings of late Nawab mohd. Nawaz Jung at Toli Chowki, Hyderabad under the lease deed dated 15th December, 1972. According to the terms of the lease, he is entitled to fit and construct starch Sago produce machinery in the building and also Tanks, Drawing Chamber Tankers, boilers etc. , on the land. Without obtaining the prior permission of the Municipal corporation of Hyderabad he had constructed some settled Tanks, theptic Tank, Washing Tank and Chemical Operation Tanks, etc. When he was proceeding with the construction the Municipal Corporation gave him a notice on 4-9-1973 under Section 461 of the hyderabad Municipal Corporation Act, (hereinafter called the act ) to stop further construction. On 5-9-1973 the Corporation gave him another notice under Section 452 of the Act to show cause as to why the construction should not be removed. The petitioner submitted his explanation on 10-9-1973. Finally on 11-9-1973 the Corporation gave him a notice to pull down the tanks within three days, failing which the Corporation would be removing them. Challenging that notice, the respondent filed writ petition No. 5535/1973 in this court. It was allowed by Ramachandra Rao, J. , holding that it was not established that there was violation of any of the provisions of the Act, or the Rules or the bye-laws while making the construction and, therefore, the Commissioner should not have directed its removal. Questioning that order the Municipal Corporation of Hyderabad has filed this writ appeal.

( 2 ) IT is submitted by Sri. T. Vijay at aghava Chary, the learned counsel for the appellant that the tanks were constructed without obtaining the prior permission of the Corporation, that there is no provision for giving post sanction and under the Act there is no discretion left with the Commissioner except to order the demolition of such construction.

( 3 ) UNDER Section 428 of the Act, every person who intends to erect or re-erect a building has to give notice to the Corporation giving the necessary particulars. Similarly, under section 433 of the act, every person who intends to make any addition or alteration to a building should give a notice to the Commissioner. Admittedly, in this case the petitioner did not give any such notice. Section 596 provides for compounding certain offences. Sri Vijayaraghava Chary, has submitted that if the provisions of Sections 428 and 433 are contravened, the offences cannot be compounded under Section 596 and, herefore, the only alternative left to the Corporation is to direct the demolition of the building under Section 452 of the Act. Section 452 which provides for demolition reads as follows:-"452. Proceedings to be taken in respect of building or work commenced contrary to Act or bye-laws:- (1) If the erection of any building or the execution of any such work as is described in Section 433 is commenced or carried out contrary to the provisions of this Act or bye-laws made thereunder, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 426 shall. (a) by written notice, require the person who is erecting or re-erecting such building or executing such work or has erected or re-erected such building or executed such work, on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend per

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