IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINETH DAY OF DECEMBER, TWO THOUSAND NINE PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.19938 of 2002 Between: M.D. Fazal … Petitioner And The Commissioner, Municipal Council, Tandur, Ranga Reddy District. … Respondent Counsel for the petitioner : Sri N. Vasudeva Reddy This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.19938 of 2002 ORDER:- In this writ petition, the petitioner questioned proceedings dated 19.09.2002 issued by the respondent, whereby he confirmed the purported notice/provisional order dated 11.09.2000 issued under Section 228 (ii) of the Andhra Pradesh Municipalities Act, 1956 (for short, “the Act”). Heard Sri N. Vasudeva Reddy, learned counsel for the petitioner. No one appeared for the respondent. I have perused the record. The petitioner purchased a part of Plot No.5 admeasuring 155.5 square yards in Sy.No.51 of Malreddypally, Tandur Town, Ranga Reddy District, forming part of layout No.132/90. The petitioner applied for building permission vide his application dated 12.08.2002 by paying the requisite building permission fee and development charges totaling Rs.29,640/-. After waiting for the required period, the petitioner started construction under the deemed permission. By the impugned order, the respondent confirmed the alleged notice dated 11.09.2000 and directed the petitioner to dismantle the building on the ground that the construction was unauthorized. Challenging the said order, the petitioner filed the present writ petition. By order dated 09.10.2002, which was modified on 06.11.2002, this Court granted stay of further action. At the hearing, learned counsel for the petitioner submitted that in pursuance of the interim order, the petitioner completed the construction. The main plea of the petitioner in this writ petition is that the impugned order is not preceded by a provisional order, as envisaged under Section 228 (ii) of the Act, though a reference to such an order was made in the impugned order. The further plea of the petitioner is that the respondent has acted with discrimination by sanctioning the application for building permission in favour of a person, who purchased a part of the said plot No.5 while rejecting the petitioner’s application. In the counter affidavit, the respondent stated that the petitioner’s plot was not sub-divided and therefore his application was rejected on 11.09.2002. It is further stated that the said rejection order was served by way of affixture of notice on the building site, as the petitioner failed to furnish the complete residential address in his application. At the hearing, learned counsel for the petitioner submitted that the action of the respondent is wholly discriminatory, inasmuch as one Abdul Kareem, son of Shaik Ahmed, who purchased the other half of Plot No.5, was granted building permission by the respondent vide his proceedings No.C/664/2005, dated 14.10.2005 and that his house was also assessed to property tax from 2005-06. The learned counsel placed before this Court order dated 20.04.2009 in Writ Petition Nos.19970 and 23923 of 2002 filed by the said Abdul Kareem, wherein this Court recorded the said facts. As regards the specific plea of the petitioner that provisional order dated 11.09.2000 has not been served on him, the stand of the respondent is rather vague and ambiguous. Though the respondent has maintained that rejection order dated 11.09.2002 was served through affixture, there is no specific averment regarding service of provisional order dated 11.09.2000. Except stating that the respondent issued notice dated 11.09.2000, the details of the method and manner of service of the said notice/provisional order have not been pleaded in the counter affidavit. Under Section 228 (ii) of the Act, service of provisional order on the owner of the building is mandatory and it therefore necessarily follows that the final order passed under Section 228 (iii) will not be valid, if the provisional order is not served. In the absence of proper plea regarding service of provisional order, leave alone showing proof of such service, the impugned order cannot be sustained. With regard to the prayer for a direction to the respondent to grant permission, while the respondent has maintained that without a sub-division, the building permission cannot be granted, as noted above, the learned counsel for the petitioner has specifically submitted that the respondent has granted building permission in favour of Abdul Kareem, who is similarly situated to the petitioner, as he purchased the other half of Plot No.5 and the said permission was granted without any sub-division. As grant of building permission in favour of Abdul Kareem was on 14.10.2005, which is a subsequent event, the respondent shall consider this fact and re-examine the request of the petitioner for grant of building permission in the light of the said fact. If the said Abdul Kareem was granted building permission without a sub-division, the respondent cannot deny the same benefit to the petitioner as well, on the ground that the plot is not sub-divided. The writ petition is accordingly disposed of in the following terms: (i) The petitioner is permitted to re-submit the application for building permission within a period of six weeks along with the relevant material including the permissions granted in favour of Abdul Kareem and other similarly situated persons. (ii) The respondent shall consider the said application and take an appropriate decision within a period of four weeks thereafter, and (iii) In the event of the respondent rejecting the application for building permission, he shall not take any action for demolition of the building, unless and until a fresh provisional order is served on the petitioner in terms of Section 228 (ii) of the Act and a final order, after considering the explanation, if any submitted by the petitioner, is passed. As a sequel to disposal of the writ petition, WPMP.No.25021 of 2002 filed by the petitioner for interim relief is disposed of as infructuous. _____________________________ C.V. NAGARJUNA REDDY, J Date: 29.12.2009 ES