HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No.33627 of 2015

ORDER:

This writ petition is filed seeking following relief: “To declare the order No.UC/16/2015 dated 07.10.2015 issued by the 2^nd respondent, as illegal, arbitrary and consequently, to set aside the same.”

2. Heard Sri Mirza Nisar Ahmed Baig Nizami, learned counsel for the petitioner as well as Sri V. Satyam Reddy, learned Standing counsel for respondent No.2.

3. Petitioner herein is the absolute owner and possessor of the house bearing Municipal No.6-23-1052 (old) corresponding to new No.6-23-852/1 (new) admeasuring 100 square yards, situated at Goutham Nagar, New Police Colony, Nizamabad. He applied for Municipal sanction for construction of ground + first floor and the same was approved vide proceedings bearing No.G1/168/2009 dated 18.08.2009 and petitioner constructed the said building as per the plan and the same has been assessed by the 2^nd respondent. While the matter stood thus, at the instigation of Mr. Waheed Khan, respondent No.2 has issued notice dated 08.09.2015 under Section 452 (1) and 461 (1) of HMC Act, 1955 alleging that the said construction has been made in deviation of the approved plan. The petitioner has submitted reply dated 01.10.2015 to the show cause notice dated 08.09.2015, however, without considering the said reply, respondent No.2 issued impugned notice dated 07.10.2015 under Section 452 (2) of the HMC Act, 1955. Aggrieved by the same, present writ petition is filed.

4. Learned counsel for the petitioner would submit that petitioner has undertaken construction as per the approved plan and there are no deviations from the approved plan and only at the instance of his neighbour i.e., Mr. Waheed Khan, respondent No.2 issued impugned notice without specifying deviations or unauthorized construction made by the petitioner and the same is liable to be set aside.

5. Learned Standing counsel for respondent No.2 would submit that the submissions made by the petitioner are factually incorrect and the impugned notice dated 07.10.2015 and show cause notice dated 08.09.2015 were issued on coming to know of the unauthorized construction made by the petitioner and therefore, contention of the petitioner that notices have been issued at the instance of neighbour is incorrect.

6. It is relevant to refer to the Judgment of the erstwhile High Court Andhra Pradesh in T.Rama Mohana Rao v.

State of A.P., 2014 (5) ALD 90 wherein it was held that consideration of reply under Section 452(2) of HMC Act, is not an empty formality and further held as follows:

“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 and 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. This order, of course, was challenged before us straight way as it is passed in sequel to the impugned judgment and order passed by the Hon’ble trial Judge, which is appealed against before us. We therefore, stay the operation of the order of removal of the lift.”

7. In the present case, material placed on record specifically discloses that the reply dated 01.10.2015, submitted by the petitioner was not considered by the respondents before issuing notice under Section 452(2) of HMC Act, therefore, the impugned notice da