THE HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No.25370 of 2014

ORDER:

This writ petition is filed challenging the action of respondent No.2 in issuing notice vide proceedings No.31/UC/W.No.117 dated 10.02.2014 under Section 452(2) of the Hyderabad Municipal Corporation Act, 1955, as illegal and arbitrary.

2. Heard Sri A.Prabhakar Rao, learned counsel for the petitioners and Sri K.Ravi Mahender, learned Standing Counsel for respondent Nos.1 to 3.

3. Learned Counsel for the petitioners would submit that petitioner No.1 has purchased land admeasuring 266.66 square yards bearing Municipal No.16-31-9, HIG.41, under registered sale deed dated 11.10.2012 (for short ‘subject property’). Subsequently, petitioner No.1 alienated 50% of the said property to petitioner No.2 under registered sale deed No.4782/2013 dated 29.06.2013. Thereafter, Petitioner Nos.1 and 2 have individually applied seeking permission for construction of houses and the same were approved by the respondent vide permit Nos.27043/DC/WZ/Cir-14/2013, dated 12.08.2013 and 27042/DC/WZ/Cir-14/2013, dated 12.08.2013, respectively. He further submits that to reduce the construction cost and to have more built up area, the petitioners 1 and 2 decided to construct combined building and accordingly, they have submitted application dated 10.10.2013 seeking permission for construction of combined building by enclosing revised plan. Without considering the said application submitted by the petitioners, the respondents have issued impugned notice dated 10.02.2014 under Section 452(2) of the HMC Act, 1955. He would further submit that though in the impugned notice the respondents have referred to notice under Section 452(1) of the HMC Act, no date or details were mentioned. In fact, the alleged notice under Section 452(1) of the Act was never issued and therefore, the impugned notice dated 10.02.2014 issued under Section 452(2) of the Act is invalid and contrary to the provisions of HMC Act, and is liable to set aside.

4. Learned Counsel for the petitioners would submit that the impugned notice dated 10.02.2014 was not preceded by notice under Section 452(1) of the HMC Act. He would further submit that without considering the application dated 10.10.2013 submitted by the petitioners seeking permission for construction of a combined building, and without affording an opportunity of hearing as mandated under Section 452(1)(b) of the HMC Act, the impugned notice is issued. He would also submit that hearing under Section 452 of the HMC Act is not a mere empty formality, and the respondents ought to have considered the application submitted by the petitioners and afforded them an opportunity of hearing. He finally submitted that the impugned notice dated 10.02.2014 is in clear violation of provisions of the HMC Act, and as such, the same is liable to be set aside.

5. To buttress his submission, learned Counsel for the petitioners relied upon the Division Bench Judgment of this Court in T.Rama Mohana Rao v. State of A.P.1 wherein, the Division Bench of this Court at para-9 has observed as under;

“9. Upon reading of the aforesaid Section, we think that if the action is taken under Section 452 of the Act, hearing is sine qua non. Admittedly, the action was intended to be taken under Section 452 of the HMC act, inviting explanation. When the explanation is invited, it must reach to its logical conclusion of acceptability or non-acceptability. The finding of the Hon’ble trial Judge could be a material to take a decision, yet in the scheme of the thing a the law stands today hearing has to be given. Section 452 of the HMC Act has been designed by the Legislature with an idea for adhering to principles of natural justice. We are, therefore, of the view that the order of removal passed by the Municipal authority without considering the explanation of the appellant, is inconsistent with the aforesaid statutory provisions, apart from in breach of the principles of natural justice. Thi