IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 25416 of 2007 Between: K.Satyanarayan S/o.K.Kallappa R/o.1-4-27/72/77/1, Bholakpura, Kavadiguda, Hyderabad. ..... PETITIONER AND 1 The Greater Hyderabad Municipal Corporation, Rep. by its Commissioner, Lower Tank Bund Road, Hyderabad. 2 The Assts City Planner, Circle III office at Abids, Hyderabad. 3 A.Satyanarayana R/o.1-4-27/72/78, Padmashali Colony, Gandhinagar, Bholapur, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue writ or writs or direction/s more particularly in the nature of writ of Mandamus declaring the notice dated 13.8.2007 under Sec. 452 of HMC Act, 1956 issued by the respondents no. 1 & 2 in respect of property bearing H.No.1-4-27/72/77/1, corresponding to old plot No.77 admeasuring 171.11 sq. yds equivalent to 143.07 sq Mts situated at Padmashali Colony Coop Housing Society Ltd. in Sy.No.40, 41 and 42 Bholakpur village, Kavadiguda, Hyderabad, as illegal arbitrary and unconstitutional and consequently set aside the same and be pleased to pass such other order/s. Counsel for the Petitioner:MR.B.VIJAYSEN REDDY Counsel for the Respondent No.: MR.R.RAMACHANDRA REDDY The Court made the following : ORDER: This writ petition has been filed by K.Satyanarayan with a prayer to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus declaring the notice dated 13.08.2007 issued under Section 482 of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’), by the respondents 1 and 2 in respect of the property bearing H.No.1-4-27/72/77/1, corresponding to old plot No.77, admeasuring 171.11 sq. yards equivalent to 143.07 sq. meters situated at Padmashali Colony Coop. Housing Society Limited, in Survey Nos.40, 41 and 42, Bholakpur village, Kavadiguda, Hyderabad as illegal, arbitrary and unconstitutional. 2. The petitioner is the owner of the property bearing H.No.1-4- 27/72/77/1, corresponding to old plot No.77, admeasuring 171.11 sq. yards equivalent to 143.07 sq. meters situated at Padmashali Colony Coop. Housing Society Limited, in Survey Nos.40, 41 and 42, Bholakpur village, Kavadiguda, Hyderabad, having purchased the same under a registered sale deed dated 27.10.2006. He applied for building permission for construction of ground plus first floor. The respondents 1 and 2 approved the sanction vide permit No.172/18, in File No.27/72/77/1/4/1/07, dt.28.07.2007. While the construction is in progress, the respondents 1 and 2 issued notice under Section 452 of the Act on 13.08.2007 alleging that the petitioner made certain deviations of RCC columns against the sanctioned plan. It is the contention of the petitioner that the notice came to be issued at the behest of A.Satyanarayana-3rd respondent, who is his neighbour. The petitioner submitted a detailed explanation to the notice issued under Section 452 of the Act. He claims that his plot situated in a small layout named as Padmashali Coop. Housing Society Ltd., where the extent of plots are very small. The Government of Andhra Pradesh pursuant to the representation, dt.29.06.1977, submitted by the Padmashali Coop. Housing Society Ltd., issued G.O.Ms.No.836, dated 07.10.1978 relaxing setbacks upto 5’ feet in the front side and 2’ feet on the sides. As such he is entitled for the benefits extended under G.O.Ms.No.836, dated 07.10.1978. According to the petitioner, 3rd respondent, at whose behest the notice under Section 452 of the Act issued to him, has constructed house availing the benefits under G.O.Ms.No.836, dated 07.10.1978. The respondents 1 and 2 ought to have verified the same before issuing the notice under Section 452 of the Act. Though the petitioner submitted an explanation, he apprehends the demolition of the constructions made by him at any movement. Hence, the writ petition with a prayer stated supra. 3. Notice before admission has been ordered on 01.04.2007. 3rd respondent filed counter-affidavit. When WPMP No.33127 of 2007, came up for consideration, with the consent of counsel for the parties, the writ petition is taken up for final disposal. 4. Heard learned counsel appearing for the petitioner; learned Standing Counsel appearing for the respondents 1 and 2 and learned counsel appearing for the 3rd respondent. 5. Learned counsel appearing for the petitioner submits that initiation of proceedings while the constructions are still in offing is not warranted, and therefore, the notice challenged in the writ petition is liable to be quashed. A further submission has been made that the Government has came up with a scheme called building penalization scheme for regularization of the unauthorized constructions and the petitioner intends to avail the benefit of the said scheme. 6. Learned counsel appearing for the respondents 1 and 2 submits that both the petitioner and the 3rd respondent made constructions deviating the sanctioned plans and therefore, notices have been issued to them under Section 452 of the Act and therefore, the writ petition is liable to be dismissed. 7. Learned counsel appearing for the 3rd respondent submits that the 3rd respondent constructed his building in the year 1995 as per the sanctioned plan and there are no deviations. 8. A fact remains that the petitioner is proceeding with the constructions in the premises bearing H.No.1-4-27/72/77/1, corresponding to old plot No.77, admeasuring 171.11 sq. yards equivalent to 143.07 sq. meters owned by him. He obtained sanctioned plan. The 1st respondent got the constructions inspected by his subordinates and came to know that the petitioner is proceeding with the constructions in deviation of the sanctioned plan. Thereupon, he chooses to invoke the provisions of Section 452 of the Act and issued notice to the petitioner pointing out the deviations. The deviations pointed out in the notice issued under Section 452 of the Act are: 1) Deviation of R.C.C. columns against sanctioned plan; 2) All round open spaces insisted in the sanctioned plan. The petitioner submitted an explanation to the show-cause notice taking the stand that there is no deviation in the constructions and the construction is only at the stage of pillars and it has not come-up to the stage of lintel. In a way he contends that the action initiated by the 1st respondent-Corporation is too premature. For better appreciation, I may refer Section 452 of the Act and it reads as hereunder: 452. Proceedings to be taken in respect of building or work commenced contrary to Act or bye-laws:- (1) If the erection of any building or the execution of any such work as is described in Section 433 is commenced or carried out contrary to the provisions of this Act or bye-laws made thereunder, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under Section 426 shall— (a) by written notice, require the person who is erecting or re-erecting such building or executing such work or has erected or re-erected such building or executed such work, on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorized by him in that behalf, to show sufficient cause why such building or work shall not be removed, altered or pulled down. (2) If such person shall fail to show sufficient cause as required under Clause (a) or (b) of sub-section (1), to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. A plan reading of the section indicates that the notice can be issued when the work commenced or carried out contrary to the provisions of the Act or bye-laws made thereunder. The notice issued to the petitioner under Section 452 of the Act indicates that the construction being made by the petitioner is contrary to the sanctioned plan. Therefore, there is no illegality or irregularity in the show-cause notice issued by the 1st respondent to the petitioner under Section 452 of the Act. If the petitioner intends to avail the benefit of building penalisation for regularization of unauthorized constructions scheme, he is always at liberty to make an application claiming the benefit under the said scheme. 9. With the above observation, the writ petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:19th June, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR}