HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1112 of 2010 Dated: 12-11-2010 Between: Vijayawada Municipal Corporation Rep. by its Commissioner, Vijayawada …Appellant AND Tarakarama Buiilders, Rep. by its Managing Partner, Chebrolu Somesekhara Rao. Respondent. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1112 of 2010 JUDGMENT: Unsuccessful defendant before the Courts below filed this second appeal challenging the judgment and decree passed by VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada in A.S.No.250 of 2007, dated 17.06.2010, whereby the appeal filed by the defendant was dismissed confirming the judgment and decree passed by II Additional Senior Civil Judge, Vijayawada in O.S.No.378 of 1999, dated 26.06.2006 decreeing the suit of the plaintiff filed for permanent injunction from demolishing the suit schedule property. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. The plaintiff instituted the above suit against the defendant- Vijayawada Municipal Corporation for permanent injunction restraining the defendant from demolishing the suit schedule property contending that after acquiring the suit schedule property, it obtained permission from the defendant-Corporation by duly paying the necessary permit fee and as per the approved plan, dated 2.5.1997, suit schedule building was constructed and during the period of construction, the officials of the defendant inspected the construction work and never objected any deviations and that after completion of the construction in May, 1998 the building was assessed and the municipal tax was collected on 3.7.1998. While so, the defendant-Corporation served a notice under Section 636 of Hyderabad Municipal Corporation Act, 1955 (for short ‘Act’) on 10.4.1999 threatening to take severe action under the provisions of the Act and orally threatened that they would demolish the building within ten days. Therefore, the plaintiff filed W.P.No.8274 of 1999 for protecting the plaint schedule property and obtained a direction on 21.4.1999 in W.P.M.P.No.10242 of 1999 not to demolish the plaint schedule property. Thereafter the plaintiff got issued a notice under Section 685 of the Act on 1.7.1999 and filed the above suit after withdrawing the Writ Petition. Contesting the suit, the defendant filed a written statement contending that the plaintiff had violated the approved plan and that the suit for permanent injunction is not maintainable. The staff of the defendant inspected the premises and served notice to the plaintiff under Section 42(1) and 43(1) of Andhra Pradesh Urban Development Act, 1975 directing it to stop the construction and in spite of the same, the plaintiff completed the construction. Therefore, a charge sheet has been filed in STC No.185 of 1997 before VIII Metropolitan Magistrate, Vijayawada and the plaintiff admitted the violations made in the construction and that he was convicted and was imposed with penalty of Rs.10,000/-. It is contended that the assessment of property tax does not amount to regularization of violations in the plaint schedule property. The suit itself is not maintainable since the mandatory notice under Section 685 of the Act has not been served. Basing on the above pleadings, the trial Court settled necessary issues for trial. On appreciation of the oral and documentary evidence brought on record, the trial Court decreed the suit of the plaintiff accepting the claim of the plaintiff that without issuing notice under Section 452 of the Act, the demolition notice under Section 636 cannot be issued and that the Commissioner, first of all, has to give the notice under Section 452 of the Act and in the absence of such notice, the issuance of notice under Section 636 for demolition is contrary to the Act. On appeal being filed, the lower appellate Court confirmed the judgment and decree of the trial Court. Learned counsel appearing for the appellant would contend that the notice under Section 685 of the Act has not been issued and except the acknowledgement, the plaintiff has not produced any evidence in that regard. If that be the case, necessary pleadings should be there in the written statement and necessary evidence has to be let in by the defendant about non-service of notice under Section 685 of the Act. The defendant failed to issue notice under Section 452 of the Act, which is mandatory in nature for issuance of demolition notice under Section 636 of the Act. Inasmuch as the defendant has not followed the procedure as contemplated under the Act, the trial Court rightly decreed the suit granting liberty to the defendant to follow the procedure. Therefore, it is always open for the defendant to follow the procedure by pointing out the deviations and complying with the mandatory provisions. The concurrent findings reached by the Courts below do not give rise to any question of law much less substantial question of law to admit the second appeal. The Second Appeal fails and the same is accordingly dismissed at the stage of admission. No order as to costs. ________________ A. GOPAL REDDY, J. NOVEMBER 12, 2010 Tsr.