The Hon'ble Sri Justice C.V.Nagarjuna Reddy Writ Petition No.24901 of 2006 Date: 19.09.2011 Between: P.Suresh ..... Petitioner AND 1.The Anakapalli Municipality, Anakapalli, Visakhapatnam Distrit, Rep. by its Commissioner and another. .....Respondents Counsel for the Petitioner: Mr.K.Durga Prasad Counsel for respondent No.1: Sri T.Bheemanna for Mr.S.Nageswara Reddy, SC for Municipality Counsel for respondent No.2: None appeared. The Court made the following: Order: At the interlocutory stage, the Writ Petition is taken up for hearing and disposal with the consent of the learned Counsel for the parties. This Writ Petition is filed for a Mandamus to set aside proceedings in U.C.No.6/2006/T.P.S.II, dated 15-11-2006, issued by respondent No.1. The petitioner constructed two cinema theatres within Anakapalle Municipality. In connection therewith, a provisional order and notice, dated 08-11-2006, under Sections 228 (1) and 228 (2) of the A.P.Municipalities Act, 1965 (for short ‘the Act’), were issued by the Commissioner of respondent No.1. Subsequently, a final order, dated 15- 11-2006, was issued directing the petitioner to either modify or remove the constructions, purportedly made without obtaining sanction from respondent No.1, within seven days failing which, the constructions will be removed and the petitioner will be prosecuted. Questioning these proceedings, the present Writ Petition is filed. The petitioner averred that respondent No.1 has committed serious infraction of principles of natural justice by serving the provisional order, notice and also the purported final order issued under Sections 228 (1), 228 (2) and 228 (3) of the Act on the same day viz., 20-11-2006 and thereby, the petitioner was denied an opportunity of submitting his explanation. It is the further case of the petitioner that under Rules 8-B and 9-B of the A.P.Cinema (Regulation) Rules, 1970, respondent No.2 is vested with the power and authority to grant permission for construction and that such permission was granted to him by respondent No.2 vide proceedings No.(M) R.Dis 1125/05 C1, dated 13-12-2005, in pursuance of which the petitioner has constructed the theatres. It is also the case of the petitioner that after he has received the final order under Section 228 (3) of the Act, he has submitted a detailed representation on 04-12-2006, explaining the above position of law and that as there was threat of demolition, he has approached this Court by way of the present Writ Petition. In the counter-affidavit, filed by the Commissioner of respondent No.1- Municipality, it is inter alia stated that the petitioner failed to obtain permission for construction of theatres from respondent No.1 and also from Visakhapatnam Urban Development Authority, as the area, over which the construction is made is 1000 square meters, and the purpose of construction was commercial and that therefore, the aforementioned notices were issued and a final order was passed. A perusal of the affidavit, filed in support of the Writ Petition, shows that the petitioner has specifically averred in Paragraph 3 that the notice, provisional order and the final order were served on him on 20-11-2006. Respondent No.1- Commissioner, in his counter-affidavit, failed to deny the said averment and therefore, the plea of the petitioner remained uncontroverted. The learned Counsel for respondent No.1 also failed to produce any record to show that the provisional order and notice, issued under Sections 228 (1) and 228 (2) of the Act, were served on the petitioner, giving him an opportunity of submitting his explanation, before the final order was passed on 228 (3) of the Act. In the face of the above facts, this Court has no option other than coming to the conclusion that the petitioner was denied a reasonable opportunity to submit his explanation before the final order under Section 228 (3) of the Act is passed. On this short ground, the impugned proceedings in U.C.No.6/2006/T.P.S.II, dated 15-11-2006, issued by respondent No.1, is set aside. Respondent No.1 is directed to consider the petitioner’s representation, dated 04-12- 2006, in accordance with the provisions of the A.P. Municipalities Act, 1965, and the A.P.Cinema (Regulations) Rules, 1970, before passing a fresh order under Section 228 (3) of the Act. Subject to the above directions, the Writ Petition is allowed. As a sequel, WPMP.No.31853 of 2006 is disposed of and WVMP.No.3227 of 2007 is dismissed. ______________________ (C.V.Nagarjuna Reddy, J) 19th September, 2011 LUR