THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO.4176 OF 2004 17th December 2009 Between: G.Jagadeeshwar. …PETITIONER AND The Commissioner, Municipal Council, Nizamabad District. …RESPONDENT THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO.4176 OF 2004 ORDER: In this Writ Petition, the petitioner has questioned the notice in P.O.No.3/TPBO/TPS/I/2004 dated 26.02.2004 issued by the respondent and further, sought direction by way of declaration that the petitioner is entitled to enjoy the possession of the house bearing door No.5-11-75/1, Ellamagutta, Nizamabad. The petitioner is the owner and possessor of the house situated at the above mentioned door number. It is stated that construction of the said house was made more than two decades ago and the petitioner has been staying in the said house along with his wife. The grievance of the petitioner is that though no constructions were made in the property of any third party, basing on a complaint given by Dr.Manohar Rao, notice was issued in the name of the petitioner’s wife under Section 228 (1) and (2) of the A.P. Municipalities Act, 1965 {“the Act’’ for brevity}. Inasmuch as the petitioner’s wife died before issuance of the said notice, the respondent cannot initiate any proceedings in her name and take steps for demolition. It is also the case of the petitioner that as the constructions were made about two decades back, if there is any civil dispute, it is for the complainant to approach the competent Civil Court and the said complaint could not have been entertained by the first respondent readily by initiating proceedings under Section 228 (1) and (2) of the Act. At the stage of admission, this Court granted interim direction to maintain status quo with regard to demolition of the said house by order dated 05.03.2004. The said order has been in force since then. No counter affidavit was filed on behalf of the respondent. Under section 228 of the Act, the respondent is empowered to order removal of any unauthorized constructions by issuing prior notice under Section 228 (1) and (2) of the Act on the person in occupation of the premises in question. If any unauthorized constructions are made and if the petitioner has succeeded the property, the respondent can issue notice on the name of the petitioner, but by issuing notice in the name of the dead person, no steps can be taken for demolition. In para-8 of the affidavit filed in support of the Writ Petition, the petitioner categorically stated that his wife died long ago, much prior to issuance of the show cause notice. In the absence of any counter affidavit from the respondent, I deem it appropriate to set aside the notice in P.O.No.3/TPBO/TPS/I/2004 dated 26.02.2004 issued by the Commissioner. Further, it is clarified that if any unauthorized constructions were made, this order would not preclude the respondents to proceed with against the person, who is in possession of the said constructions and take steps in accordance with law. Subject to the above directions, the Writ Petition is allowed. There shall be no order as to costs. ___________________ (R.SUBHASH REDDY, J) 17th December 2009 RRB