The Commissioner does not have the power to modify a building plan after the expiration of the 30-day period specified in Section 437 of the Hyderabad Municipal Corporations Act, 1955, and Section 439 of the Act does not empower the Commissioner to impose conditions relating to set back in the absence of bye-laws.

( 1 ) 1. The petitioner purchased a piece of land measuring 406 square yards at King koti road, Hyderabad in the year 1971 from H. E. H the Nizam. She gave a notice dated 13-4-1971 to the Commissioner (the respondent herein) intimating her intention to construct five mulgees with a stair-case and the same was got accompanied by a plan. A stair-case was proposed on the front side abutting the road and a residential house was proposed on the rear side On 17-4-1971 the Commissioner addressed a letter to the petitioner stating that the land in question forms fart of King Koti premises which has been subdivided into different portions without any approval of the Corporation in lerms of Section 388 of the Hyderabad municipal Corporations Act, 1955 (herein after referred merely as the act ). The permission is therefore refused and the plans were returned. The petitioner thereupon re-submitted the plans on 17-1-1972 stating that the site abuts on two roads where all amenities are existing and several buildings have been constructed and as such Section 388 does not apply to the facts of the case. The Commissioner did not communicate either his approval or disapproval within 30 days of the receipt of the afore said notice submitted by the petitioner on 17-1-72. But the Commissioner issued a permit No 33/19 dated 15-7 1972 making a modification in the plan submitted by the petitioner on 17-1-72, requiring the petitioner to provide for the set back of the construction of the mulgees abutting the road by five feet.

( 2 ) THE respondent Issued a notice dated 4-10-72 under section 461 of the act requesting the petitioner to stop the construction on the ground that it was done without the set back and contrary to the modified plan. On 7-10-72 a show- cause notice under section 452 of the Act signed by the Assistant City Planner was issued to the Petitioner stating that the construction, without set back, was unauthorised. The petitioner submitted a reply stating that she is entitled to continue the construction. Thereupon the respondent issued a demolition notice dated 21-10-1972 under section 636 of the Act stating that the mulgee constructed is against the sanctioned plan and contrary to the provisions of the Act. A representation, thereafter, was made by the petitioner on 12-12-1972 against the demolition order with a request to reconsider the direction in the modified plan relating to the set back of construction by five feet. It is brought to the notice of the authorities concerned that one Jehangir AM. who is very near to the petitioner s premises, was permitted to construct mulgees without insisting on any set back of five feet and therefore the proposed action of the respondent is arbitrary and discriminatory. A letter dated 13-12-1972 was issued by the respondent to the petitioner rejecting her representation.

( 3 ) IT is stated in the writ petition that after the receipt of the reply dated 13-12-1972 from the respondent the petitioner submitted a similar representation to the government on 14-12-1972 but the Government rejected the same on 19-5-73 stating that the Commissioner is empowered to regularise the construction.

( 4 ) IT is under these circumstances the extraordinary Jurisdiction of this court under Article 226 of the Constitution of india, is invoked by the petitioner seeking a declaration that the plan submitted by her on 17-1-1972 is the plan according to which she is entitled to construct and the modification suggested by the respondent providing for a set back of five feet is unauthorised and illegal and consequently the proceedings issued by the respondent to the effect that the construction is unauthorised and as such it is liable to be demolished, are all illegal and invalid

( 5 ) SRI Tej Rai Kapoor, the learned counsel for the petitioner submits that a notice under section 428 of the Act along with a plan was submitted to the respondent on 17-1-72. Under section 437 of the Act, if nothing is heard fr