ORDER:

Questioning the proceedings of respondent No.1 – Kakinada Municipal Corporation dated 05.10.2011 directing removal of entire flat bearing No.GF-13, the present writ petition is filed.

Petitioner claims to be owner of flat bearing No.G.F.13 in Manasa Park View Apartment, near Gandhinagar Park, Kakinada, East Godavari District, having purchased the same for valuable consideration under registered sale deed dated 21.11.1997. By notice dated 11.07.2011, respondent No.1 – Kakinada Municipal Corporation asked the petitioner to remove the unauthorized construction of flat in stilt floor parking area within seven days. Aggrieved thereby, petitioner filed W.P.No.19558 of 2011, wherein this Court, by order dated 05.09.2011, disposed of the writ petition, permitting the petitioner to raise her objections treating the notice therein as a notice under Section 452(1) of the Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’). Pursuant to which, petitioner submitted explanation on 19.09.2011. Without considering the said explanation, respondent No.1 – Corporation passed the impugned order dated 05.10.2011 under Section 636 of the Act. Hence the writ petition.

Sri K.Chidambaram, learned counsel for the petitioner, contends that though the petitioner raised various contentions through his explanation dated 19.09.2011, respondent No.1 – Corporation, without dealing with the said contentions, issued the impugned notice, which is illegal. In support of his contention, he relied on the case of Poonamchand Vs Greater Hyderabad Municipal Corporation1. He further submits that respondent No.3, who got himself impleaded, gave a complaint to respondent No.1 –

Corporation.

Heard Sri M.Manohar Reddy, learned Standing Counsel appearing for respondent – Corporation, and Sri Ch.Jamadagni, learned counsel for respondent No.3. None appears for respondent No.2.

As seen from the explanation filed by the petitioner to the impugned notice dated 11.07.2011, various grounds have been raised. The impugned order does not refer to any of the contentions raised in his explanation dated 19.09.2000 except saying that the explanation is not convincing.

This Court in Poonamchand (1 supra) held as under:

“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 case where such explanation is not offered, respondent No.1 is 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.”

In the circumstances, the impugned order is set aside and the matter is remanded back to respondent No.1 - Corporation for passing a fresh order, in accordance with law, dealing with the contentions raised by the petitioner.

The Writ Petition is, accordingly, allowed. No order as to costs.

2012 (1) ALT 524 As a sequel thereto, the miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

________________________________ KONGARA VIJAYA LAKSHMI, J Date:04.09.2019 usd