THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No.6298 of 2015

ORDER:

This Writ Petition is filed by the petitioner to declare the action of respondent No.2 in issuing notice under Section 636(1) of HMC Act, dated 08.03.2015, without considering the reply dated 04.03.2015, submitted by the petitioner to the notice dated 25.02.2015, as illegal and arbitrary and is in violation of Articles 14 & 21 of the Constitution of India.

2. Heard Sri J.U.M.V.Prasad, learned Counsel for the petitioner and Sri G.Madhusudhan Reddy, learned Standing Counsel for GHMC. Perused the record.

3. Brief facts of the case as contended by the petitioner are that petitioner is the owner of the house bearing Nos.8-2-18 and 19, situated in Market Street, Secunderabad; that as the said building was not conducive to the requirements of the petitioner and being old construction, petitioner applied for permission for construction of new building and the same was approved by respondent No.1 vide file No.88479/06/11/2013/C-8, dated 26.12.2013, for construction of Ground + 1 upper floor. He further submitted that petitioner proceeded with construction as per the sanctioned plan, however, one of his neighbors filed a petitioner vide W.P.No.1238 of 2015, alleging that petitioner was proceeding with illegal construction and this Court was pleased to grant interim orders and at the intervention of elders and well-wishers, the said writ petition was withdrawn on 03.03.2015; that while matter stood thus, respondent No.1 issued notice dated 25.02.2015, under Section 452(1) of HMC Act to show cause as to why the construction should not be removed; that petitioner submitted reply on 04.03.2015 to the show cause notice dated 25.02.2015, however, without considering the said reply respondent No.2 issued impugned notice on 08.03.2015 under Section 636(1) of HMC Act, to remove unauthorized construction within 24 hours, failing which, the same will be removed by the respondents and expenses will be recovered from the petitioner. Aggrieved by the same, present writ petition is filed.

4. Learned Counsel for the petitioner would submit that in response to notice dated 25.02.2015, under Section 452(2) of HMC Act, petitioner submitted reply on 04.03.2015, however, reply was not considered and the impugned notice dated 08.03.2015, was issued mechanically and granted 24 hours time to remove alleged unauthorized construction or deviated portion. He further submitted that notice dated 08.03.2015, issued by respondent No.2 did not refer to reply dated 04.03.2015, submitted by the petitioner and there is no whisper as to whether reply submitted by the petitioner was considered before issuing impugned notice. He further submitted that notice under Section 452(2) of HMC Act is not an empty formality and respondents’ authorities have to consider the reply submitted in response to notice under Section 452(2) of HMC Act and has to record the reasons either rejecting or accepting the same before issuing notice under Section 636(1) of HMC Act. He also submitted that in the present case, the impugned notice does not even refer to the reply submitted by the petitioner and therefore, the impugned notice has been issued mechanically and there is clear non-application of mind by the authorities and rights of the petitioner guaranteed under Article 21 and 300-A of Constitution of India are affected and thus, the notice is unsustainable and is liable to be set aside and finally prayed to allow the writ petition.

5. Per contra, learned Standing Counsel for respondents would submit that the writ petition is devoid of merits and in fact, petitioner approached this Court with unclean hands. He further submitted that respondents have issued permission only for construction of building consisting of Ground+1 upper floor, however, contrary to the approved sanctioned plan, petitioner has constructed one extra floor in the form of second floor; that further petitioner did not leave required se