THE HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No.14914 of 2015

ORDER:

This writ petition is filed declaring the action of respondent Nos.2 and 3 in issuing notice dated 14.05.2015 vide Notice No.3/UC/W.No.44/CIR-8/TPS/WMC/2015 under Section 636 of the HMC Act, 1955 r/w A.P.Municipal Corporation Act, 1994, without considering the reply of the petitioner dated 05.03.2015 and without affording opportunity of personal hearing as stipulated under Section 452 (1) (b) of the A.P.Municipal Corporation Act, 1944, as illegal, arbitrary and violative of principles of natural justice apart from being violative of Article 14 of the Constitution of India and consequently to set aside the said notice.

2. Heard Sri T.Bala Mohan Reddy, learned counsel for the petitioner and Sri Pasham Mohith Reddy, learned Standing Counsel for respondents 2 and 3.

3. Learned Counsel for the petitioner would submit that petitioner is the owner and possessor of land admeasuring 311.38 square yards situated at premises bearing No.2-4-743, Gokul Nagar, Warangal, having acquired the same through registered partition deed vide document No.6164 of 2009 dated 11.09.2009; that in the said property an old structure, constructed in the year 1960, was existing; that the petitioner intending to construct new building by demolishing old structure had approached 2^nd respondent seeking permission and 2^nd respondent granted permission for construction of ground plus two upper floors vide permit No.193, G1/19441/2011, dated 23.06.2011; and that the petitioner commenced construction in accordance with the sanctioned plan.

4. Learned Counsel further submits that in view of ‘Vasthu’ he was forced leave excess set back on rear side of the property and had to make some adjustments. While so, the 3^rd respondent had issued a notice dated 25.02.2015 under Section 451(1) of the HMC Act, 1955 calling upon the petitioner to show cause as to why the construction should not be removed. In response to the said notice the petitioner submitted reply on 05.03.2014 explaining that due to differential contour of the property and the road level he was forced to lay slab at plinth level; and that in case of any deviation he is ready to pay regularization fee. However, the 3^rd respondent without considering petitioner’s reply dated 05.03.2014 and without affording any opportunity of hearing to the petitioner had issued notice dated 16.03.2015 under Section

451(2) of the HMC Act, 1955 and followed with impugned notice dated 14.05.2015 under Section 636 of the HMC Act, 1955 directing the petitioner to remove the structure on front side and on the both sides.

5. Learned Counsel for the petitioner would submit that the impugned notice dated 14.05.2015 has been issued without considering the reply submitted by the petitioner dated 05.03.2015 and also without affording opportunity of hearing as mandated under Section 452(1)(b) of the HMC Act. He would further submit that issuance of notice under Section 451(2) of the HMC Act does not amount to a mere empty formality and the respondents ought to have considered the reply submitted by the petitioner and also ought to have afforded opportunity of hearing to the petitioner. Since the impugned notice has been issued without following the requirement under law as well as provisions of HMC Act, the same is liable to be set aside.

6. Learned Counsel for the petitioner to buttress his argument has 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;

1 2014 (5) ALD 90

“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 tria