THE HON’BLE Ms. JUSTICE G. ROHINI Writ Petition No. 11491 of 2010 Dated: 30.06.2010 Between: Noor ahmed, Kurnool and another. … Petitioners And Kurnool Municipal Corporation, Rep., by its Commissioner, Kurnool and 4 others. … Respondents HON’BLE Ms. JUSTICE G.ROHINI Writ petition No. 11491 of 2010 O R D E R: Petitioners herein claim to be the owners and possessors of House bearing No.40/808H at Srinivasa Nagar, within the limits of Kurnool Municipal Corporation. Respondent No.3, who claims to be the owner of the neighbouring plot, had earlier filed W.P.No.22662 of 2008 seeking a declaration that the action of the Kurnool Municipal Corporation in not taking any action on her representation dated 06.10.2008 complaining about the unauthorized and illegal constructions being made by the respondents 3 and 4 therein (the writ petitioners) as arbitrary and illegal. The grievance of the petitioner therein was that the respondents 3 and 4 had deviated from the sanctioned plan in making construction of the building and that they failed to leave the required set back towards her building. After hearing of the parties, W.P.No. 22662 of 2008 was disposed of by this Court by order dated 06.11.2009 holding as under: “The concern of the petitioner is about the leaving of open space by respondents 3 and 4 towards northern side of their building, which happens to be on the southern side of the building of the petitioner. The relevant building bye-laws provide for set backs, with an object of ensuring free flow of air and privacy to the neighbours. The observation of set backs is one of the important conditions for grant of permission itself. In case respondents 3 and 4 have violated the condition, as to set backs, particularly on the side of the building of the petitioner, necessary action needs to be taken. The subject-matter of the suit is compound wall and not the construction undertaken by respondents 3 and 4. The representation made by the petitioner deserves to be taken into account. In case it emerges that the set back was not observed, immediate steps need to be taken. Therefore, the Writ Petition is disposed of, directing respondents 1 and 2 to ensure that in the building constructed by respondents 3 and 4, the set back, particularly on the northern side of that building, is mentioned. If there is any deviation, compliance therewith shall be ensured within four weeks from the date of noticing the same, duly issuing notice to respondents 3 and 4.” It is pleaded in this writ petition that pursuant to the order passed in W.P.No. 22662 of 2008 though no notice was served by the 1st respondent-Corporation, the petitioners themselves submitted their objections before the respondents 1 and 2 on 19.12.2009. However, without considering the said objections and without making any inspection, the 1st respondent issued a notice dated 24.04.2010 calling upon the petitioners to remove the balcony in the first floor of their building alleging that the same was contrary to the approved plan. The petitioners were called upon to ensure compliance in four weeks from the date of the said notice. It is pleaded that the said notice was actually served on the petitioners on 12.05.2010 and immediately thereafter they made a representation on 14.05.2010 bringing to the notice of the 1st respondent that no inspection was conducted and moreover none of the objections raised by them in their representation dated 19.12.2009 were taken into consideration. Alleging that the respondents 1 and 2 were proceeding to remove the balcony in the first floor in the premises in question, without considering the petitioner’s representations dated 14.05.2010 and 19.12.2009, the present writ petition has been filed. In the counter affidavit filed on behalf of the first respondent-Municipal Corporation, it is stated that the Town Planning Officers visited the premises in question and it was found that there was a clear open space of one meter on the northern side. But the roof slab was projected up to one meter wide and it was being used as balcony. Hence, the impugned notice dated 24.04.2010 was issued calling upon the petitioners to remove the same as the construction of the said balcony was in violation of the building rules. The plea of the petitioner that they submitted objections dated 19.02.2009 has been denied and it is stated that neither the said objections nor the representation dated 14.05.2010 were received in the Office of first respondent-Corporation. In the counter affidavit filed by the respondents 3 to 5 while reiterating the allegation that the balcony constructed by the petitioners on the northern side of the building was not in conformity with the approved plan dated 17.10.2008, it is stated that the impugned notice which was passed in terms of the order of this Court in W.P.No.22662 of 2008 after conducting due enquiry warrants no interference by this Court. Heard the learned counsel for both the parties and perused the material available on record. At the outset it is to be noticed that in the impugned notice, dated 24.04.2010 though it was claimed that the building in question was inspected, the date of such inspection was not mentioned. Even the counter affidavit filed on behalf of the 1st respondent was silent as to the date of inspection and at any rate no material could be placed before this Court to show that such inspection was conducted in the presence of the petitioners. So far as the objections submitted by the petitioners dated 19.12.2009, the material placed before this Court by the petitioners shows that the same was sent by registered post with acknowledgment due apart from delivering a copy in the Office of the 1st respondent- Corporation by hand. It is true that this Court while disposing of W.P.No.22662 of 2008 with a direction to the respondents 1 and 2 to ensure that the set back in the building constructed by the petitioners herein was maintained, further directed that in case there was any deviation, compliance there with should be ensured. However, the same does not empower the respondents 1 and 2 to remove the balcony straight away, without following due process of law. As noticed above, the question whether the set backs are not maintained and whether the balcony in question is constructed deviating from the sanctioned plan are disputed questions of fact. Hence, the respondents 1 and 2 are required to take the necessary action after giving an opportunity to the petitioners to raise their objections against the proposed action. Since no such procedure was followed and even the inspection said to have been conducted by the respondents 1 and 2 was not in the presence of the petitioners, I am of the opinion that the impugned action of the respondents being in violation of the principles of natural justice cannot be sustained. Accordingly, the Writ Petition is disposed of making it clear that the impugned notice dated 24.04.2010 shall be treated as a show cause notice and permitting the petitioners to submit their explanation, within two weeks from today. On receipt of such objections, the 1st respondent shall cause inspection of the building in question in the presence of the writ petitioners as well as the respondents 3 to 5 and furnish copies of the inspection reports to both the parties. Thereafter, the 1st respondent shall pass a final order in accordance with law after giving an opportunity of personal hearing to both the parties. Such exercise shall be completed within a period of four weeks from the date of receipt of the explanation of the petitioners. Writ petition is accordingly disposed of. No costs. _____________ G.ROHINI,J Date: 30.06.2010 Note: Issue c.c. in 3 days. B/o KLP