IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.4923 of 2007 Between: Nayee Kalyana Mantapam, Nayee Brahmana Sangam Twincities Trust, Rep. by its Chairman D.V. Jogendar Rao Nayee, S/o. D.V. Narayana Nayee, age 62 yrs, 1-1-261/15/F/1, Bapu Nagar, Chikkadpally, Hyderabad. ..... PETITIONER AND 1 The Commissioner, Municipal Corporation of Hyderabad, Tank Bund , Hyderabad. 2 The Additional Commissioner, Municipal Corporation of Hyderabad, Circle III, Abids, Hyderabad. 3 The Assistant City Planner, Municipal Corporation of Hyderabad, Circle III, Abids, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue a writ, order or direction more particularly a writ in the nature of Mandamus declaring the action of the Respondents in issuing notice dt.8- 3-2007 under Section 636 of the Municipal Corporation Act, 1955 and insisting for submission of undertaking for surrendering the land for formation of approach road and for widening the canal without initiating proceedings under section 147 of H.M.C. Act as illegal, arbitrary and in violation of principles of natural justice and to pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: MR.E.SAMBASIVA PRATAP Counsel for the Respondents: MR. R. RAMACHANDRA REDDY The Court made the following: THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.4923 of 2007 ORDER: This writ petition has been ﬁled by Nayee Kalyana Mantapam, Nayee Brahmana Sangham Twin Cities Trust, represented by its Chairman Sri D.V. Jogendar Rao Nayee, assailing the action of the respondents in issuing notice, dated 08.03.2007, under Section 636 of the Hyderabad Municipal Corporations Act, 1955 (for short ‘the H.M.C. Act’). The petitioner is a Sangham representing the entire Nayee Brahmin Community in the State of Andhra Pradesh, having about 25,00,000 of members. The petitioner Sangham formed a Trust for the welfare of Nayee Brahmins in twin cities of Hyderabad and Secunderabad. The petitioner purchased 1500 square yards of land along with tin sheet roof sheds through eight separate registered settlement deeds. According to the petitioner Sangham, the respondents visited the said premises on 28.02.2007 and directed the Chairman of the petitioner Sangham to meet the concerned oﬃcers. Thereupon, the Chairman of the petitioner Sangham approached the Assistant City Planner, Municipal Corporation of Hyderabad, Circle-III – 3rd respondent and explained to him the petitioner Sangham’s title over the property. It is averred in the writ aﬃdavit that the oﬃcials of the respondent Corporation informed the deponent that certain extent of land is required for the purpose of providing approach road along with the canal. Since the Chairman of the petitioner Sangham did not readily accede to the request, the respondents resorted to issuing notice under Section 636 of the H.M.C. Act and served the notice on the Watchman of the petitioner Sangham. For better appreciation, I may refer to paragraph 5 of the affidavit filed in support of the writ petition and it is thus: “I submit that the respondents insisting for submission of undertaking is illegal and if at all the respondents require the land for the purpose of formation of road and widening the canal, it is always open for them to initiate proceedings under Section 147 of Hyderabad Municipal Corporation Act for acquisition. The land and the structures therein is acquired by the petitioner Sangham with the funds contributed by the members from all over Andhra Pradesh. For the purpose of welfare activities to the community people at a State level the petitioner Sangham formed the Trust to beneﬁt the members of the community. Therefore the land and structures belong to the entire community and an individual cannot take a decision for handing over the land to the respondents. It is clear that at the time of acquiring the land there are tin sheet roof sheds are located in the site with compound wall. The respondents without verifying in the site or giving opportunity to the petitioner Sangham issued notice under Section 636 of H.M.C. Act is contrary to the well established principles of law.” Notice before admission came to be ordered on 09.03.2007. The respondents ﬁled counter-aﬃdavit. Smt S. Annapurna, Deputy Commissioner, Circle 9 of Central Zone, Greater Hyderabad Municipal Corporation, has sworn to the counter-affidavit. Paragraph 2 of the counter-aﬃdavit reads as hereunder: “In reply to the averments made in paragraph 2 of the Aﬃdavit, it is submitted that the petitioner Trust has commenced unauthorized construction of compound walls and rooms adjacent to Hussain Sagar Surplus Nala situated at Bapu Nagar, Chikkadapally, Hyderabad. The Hussain Sagar Surplus Nala width at the site under reference is 22.00 mts. As per the provision of under Section 428 & 433, read with Sub-Section (3) of Section 2 of the H.M.C. Act 1955, no person is entitled to proceed with the construction without written permission from the Municipal Corporation and further the land is sub-divided as required under Section 388 of H.M.C. Act and obtaining approval from the Commissioner, Municipal Corporation of Hyderabad. As per the layout and sub-division rules of 1965, the minimum road width required shall be 40’-0” width. The petitioner trust has commenced the unauthorised construction of compound wall without obtaining sub-division approval of the H.M.C. Act 1955 and consequently a Notice dated 01.03.2007 was served upon the petitioner to show cause and on expiry of said notice a notice under Section 636 of the H.M.C. Act was served upon the petitioner dated 08.03.2007. Hence, the reasonable opportunity has been given and the averment made by the petitioner is totally false.” It is further stated in the counter-aﬃdavit that the petitioner has failed to establish the ownership and title over an extent of 1500 square yards. The petitioner ﬁled a reply aﬃdavit. Copies of the settlement deeds have been enclosed to the reply affidavit. When the writ petition came up for admission, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents. Learned counsel appearing for the petitioner Sangham submits that the petitioner Sangham is not putting up any new constructions except making certain repairs to the existing structures. A further submission has been made that if the respondents require any part of the land owned by the petitioner for formation of road, the respondents have to follow the due process of law. Learned Standing Counsel appearing for the respondents submits that the petitioner Sangham is proceeding with the new constructions, which are impermissible, and, therefore, notice under Section 636 of the H.M.C. Act came to be issued. Under Section 636 of the H.M.C. Act, the Corporation is empowered to issue notice directing the persons to stop the work or things done without written permission of the Commissioner. Section 636 of the H.M.C. Act reads as hereunder: Work or thing done without written permission of the Commissioner to be deemed unauthorised:- (1) If any work or thing requiring the written permission of the Commissioner under any provisions of this Act, or any rule, regulation or bye-law is done by any person without obtaining such written permission or, if such written permission is subsequently suspended or revoked for any reason by the Commissioner, such work or thing shall be deemed to be unauthorised and subject to any other provision of this Act the Commissioner may at any time, by written notice, require that the same shall be removed, pulled down or undone as the case may be, by the person so carrying out or doing if the person carrying out such work or doing such thing is not the owner at the time of such notice then the owner at the time of giving such notice shall be liable for carrying out the requisitions of the Commissioner. (2) If within the period speciﬁed in such written notice the requisitions contained therein are not carried out by the person or owner, as the case may be, the Commissioner may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner as the case may be. It is the speciﬁc case of the petitioner Sangham that it is not proceeding with any constructions except eﬀecting repairs to the existing structures. Such is the case, the petitioner Sangham is at liberty to submit explanation to the notice issued under Section 636 of the H.M.C. Act, detailing the existing structures, within a period of two weeks from the date of receipt of a copy of this order. The petitioner Sangham is also at liberty to enclose copies of the settlement deeds under which it got right over the premises in question. In the event any part of the property owned by the petitioner Sangham is required for formation of the road, the respondents have to follow the due process of law. With the above observations, the writ petition is disposed of. No order as to costs. ________________________ B. SESHASAYANA REDDY, J 18th September, 2008. IBL