*THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION Nos.10781 of 2000 & 10780 of 2001 %Dated 19-03-2008 # Between: WP.No.10781 of 2000 Smt. Garapati Radha & others. … Petitioners AND The Commissioner, Vijayawada Municipal Corporation, Vijayawada & others. … Respondents WP.No.10780 of 2001 Between: M.V.N. Prasad & another. … Petitioners And Municipal Corporation of Vijayawada, Rep., by its Commissioner, Vijayawada, Krishna District & others. … Respondents ! Counsel for Petitioner: Sri M.R.K. Chowdary ^Counsel for Respondent No.1: Smt. G. Jhansi Counsel for respondents 2&3: Sri G. Vidyasagar <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1980 SC 1157 2. AIR 1987 SC 1161 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF MARCH, TWO THOUSAND EIGHT ONLY PRESENT: HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.10781 of 2000 & 10780 of 2001 WP.No.10781 of 2000 Between: Smt. Garapati Radha & others. … Petitioners AND The Commissioner, Vijayawada Municipal Corporation, Vijayawada & others. … Respondents WP.No.10780 of 2001 Between: M.V.N. Prasad & another. … Petitioners And Municipal Corporation of Vijayawada, Rep., by its Commissioner, Vijayawada, Krishna District & others. … Respondents Counsel for the petitioners: Sri M.R.K. Chowdary Counsel for respondent No.1: Smt. G. Jhansi Counsel for respondents 2&3: Sri G. Vidyasagar This Court made the following: HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.10781 of 2000 & 10780 of 2001 COMMON ORDER:- Since the issues involved in both these writ petitions are common, they were heard together and being disposed of by a common order. For convenience, the parties are referred to as they are arrayed in WP.No.10781 of 2000. Petitioner Nos.1 and 2 entered into a development agreement with respondent Nos.2 and 3 for construction of a residential complex on an extent of 800 square yards situated at Gopalakrishnaiah Street, Governorpet, Vijayawada, belonging to respondent Nos.2 and 3. They agreed to share the built up area in the ratio of 60:40 between themselves and respondent Nos.2 and 3 respectively. As constructions were made in deviation of the sanctioned plan, an application for regularization of the deviations was made. While Form-A was submitted on 31.08.1998, Form-B was submitted on 28.10.1998 in the name of respondent No.2 by petitioner No.3 under Building Regulation Scheme as notified under G.O.Ms.No.419, M.A. dated 30.07.1998. Respondent No.1, who considered the said application, passed order on 29.10.1999, whereunder the deviations were regularized. Later, respondent No.1 issued notice dated 15.02.2000 purportedly under Section 450 of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’) addressed to petitioner No.3 and respondent No.2 calling upon them to stop all further actions in pursuance of the regularization and also to show cause in writing by themselves or their duly authorized agent why order dated 28.10.1999 should not be cancelled. Petitioner Nos.1 and 2 on the one hand and respondent No.2 on the other sent their respective representations to the said notice. While petitioner Nos.1 and 2 pleaded that there was no misrepresentation or fraud, respondent No.2 requested for cancellation of regularization order. After considering the said representations, respondent No.1 vide his order dated 25.05.2000 cancelled and revoked his earlier order dated 29.10.1999. Assailing the said order, petitioner Nos.1 and 2 filed WP.No.10781 of 2000. Respondent Nos.2 and 3 filed WP.No.10780 of 2001 for a writ of mandamus to direct respondent No.1 to demolish the illegal and unauthorized constructions made by petitioner Nos.1 and 2 contrary to the sanctioned plan and the provisions of the Act. Respondent Nos. 1 to 3 filed separate sets of counter affidavits. In his counter affidavit, respondent No.1 stated that petitioner No.3 signed Form-A for respondent No.2 and Form-B and indemnity bond in his individual capacity. It is also averred that the indemnity bond, which is shown to have been executed by respondent No.2, was signed by petitioner No.3 and that therefore the same constitutes fraud and misrepresentation and that opposing the application for regularization of deviations, respondent No.2 sent a representation on 13.10.1999 and the same was misplaced. It is further averred that order of regularization of unauthorized deviations was passed on 22.08.1999 itself subject to payment of balance amount, that notice dated 30.08.1999 was issued for payment of balance amount of Rs.38,240/-, which was acknowledged by Sri Dandamudi Venkateswara Rao, watchman of the scheduled premises, on 08.09.1999 and that after remittance of the balance amount of Rs.38,240/- on 28.10.1999, deviations were regularized by order dated 29.10.1999. Respondent No.1 denied that notice dated 15.02.2000 was issued at the instance of respondent Nos.2 and 3. It is stated that in his reply to the show cause notice, respondent No.2 questioned the authenticity of the documents submitted by petitioner No.3 and failure of petitioner No.3 to give his explanation gave scope for suspicion about his existence, competency and capacity and that the explanation submitted by petitioner Nos.1 and 2 was thoroughly perused before the impugned decision was taken. Respondent No.1 justified cancellation of building permission by invoking Section 450 of the Act as the said provision deals with cancellation/revocation of building permits found to have been obtained by misrepresentation and fraud and that since the scheme of building regularization is a concept to grant permission for the unauthorized constructions made prior to the cut-off period, the instant case, is also covered by the provisions of Section 450 of the Act. Respondent No.1 reiterated his stand that since the required Forms and indemnity bond were shown to have been executed by respondent No.2 with petitioner No.3 signing them, regularization was obtained by playing fraud and misrepresentation leading to cancellation of the order of regularization. In the counter affidavit filed by respondent Nos.2 and 3, it has been pleaded that respondent No.3 entered into a development agreement with petitioner Nos.1 and 2, that the latter did not execute the work in accordance with the said agreement and as they raised illegal constructions and violated the easementary rights of the neighbours in spite of their objections and protest, abandoned the construction work as early as 1997 and therefore he cancelled the agreement. It is further averred that on coming to know that petitioner No.3 allegedly applied for regularization with false and forged documents, he submitted his representation and on the said representation respondent No.1 served a notice on petitioner No.3 to show cause why the order of regularization should not be cancelled, petitioner No.3 did not submit his explanation and petitioner Nos.2 and 3, who did not submit the plans and the required documents before respondent No.1 for regularization of the illegal constructions submitted their explanation though no such explanation was called for from them. It is further pleaded that respondent No.1’s order shows that Form Nos. A and B were signed by petitioner No.3 for respondent No.2 and the indemnity bond, which is shown to have been executed by respondent No.2, was signed by petitioner No.3 and that since the same is absurd and the true owner is challenging the validity of the documents, the order has been revoked and as such the said order does not suffer from any irregularity or illegality. Since the relief sought for in WP.No.10780 of 2001 depends upon the outcome of WP.No.10781 of 2000, the pleadings therein need not be specifically referred to. At the hearing, Sri M.R.K. Chowdary, learned Senior Counsel appearing for the petitioners submitted that the impugned order passed by respondent No.1 suffers from patent illegalities. Section 450 of the Act, contends the learned counsel, has no application to the orders passed under the Building Regularization Scheme and as such, the very initiation of the proceedings under the said provision is void ab initio. He further submitted that the impugned order passed by respondent No.1 is in serious violation of principles of natural justice, inasmuch as except the bald allegation that the order of regularization was obtained on material misrepresentation of facts and on fraud, none of the details, which were mentioned in the impugned order is intimated to petitioner No.3, who is no other than the agent of petitioner Nos.1 and 2 and as such the petitioners had no real opportunity to meet the grounds on which the order of building regularization has been cancelled. Opposing the contentions of the learned counsel for the petitioners Smt. G. Jhansi, learned Standing counsel representing respondent No.1 and Sri G. Vidyasagar, learned counsel representing respondent Nos.2 and 3 submitted that petitioner Nos. 1 and 2 have no locus to file the writ petition, inasmuch as, the building regularization was made in favour of respondent Nos.2 and 3 and that as such their interests are in no way affected. They further submitted that since Section 450 deals with cancellation of permission, building regularization, which is nothing but validation of illegal construction is comprehended by the said provision and hence, there was no jurisdictional error in the impugned order passed by respondent No.1. Learned counsel for respondent Nos.2 and 3 submitted that in fact the construction was not completed and hence Section 450 of the Act is clearly attracted and at any rate as the petitioners played fraud and obtained regularization on material misrepresentation of facts, respondent No.1 justifiably exercised his power vested in him by Section 450 of the Act and cancelled the regularization order. There is no dispute about the following facts; That petitioner Nos.1 and 2 and respondent Nos.2 and 3 entered into a development agreement, that clause 1 of the said agreement makes it obligatory on the part of petitioner Nos.1 and 2 to get the building plans prepared and approved at their costs by the competent authority, that the construction was undertaken by petitioner Nos.2 and 3, under the said agreement, that petitioner Nos.1 and 2 have interest over 60% of the constructed area and that during the course of construction of the building serious differences arose between petitioner Nos.1 and 2 on the one hand and respondent Nos.2 and 3 on the other. Respondent Nos.1 and 2 admit that respondent No.2 filed his objections by way of a complaint on 13.10.1999 against the application filed for regularization. It is also their case that after the order regularizing the deviations was passed on 29.10.1999, respondent No.2 made another representation dated 28.01.2000. Though respondent No.1 denied the allegation of the petitioners that at the instance of respondent Nos.2 and 3 a show cause notice was issued under Section 450 of the Act by respondent No.1, respondent No.2 in his counter affidavit specifically alleged that on his representation made on 28.01.2000, respondent No.1 issued show cause notice under Section 450 of the Act. It is therefore clear that respondent No.1 acted on the complaints/representations of respondent No.2 in issuing show cause notice and cancelling the regularization order. Neither of the respondents filed copies of the said complaints/representations to enable this Court to know the contents thereof. A perusal of notice dated 15.02.2000 issued by respondent No.1 under Section 450 of the Act shows that the same is bereft of any details whatsoever except the allegation that regularization of illegal constructions was obtained by petitioner No.3 and respondent No.2 on material misrepresentation of facts and fraud. There is neither a reference to the complaints/representations of respondent No.2 nor to the nature of alleged misrepresentation or fraud said to have been committed by the addressees of the notice. But in the impugned order, there is a reference to the documents filed for regularization and the representations of respondent No.2 dated 13.10.1999, 25.10.1999 and 28.01.2000 apart from the replies submitted by respondent No.2 and petitioner Nos.1 and 2. In the said order, for the first time, respondent No.1 referred to some of the contents of representations dated 13.10.1999 and 28.01.2000 filed by respondent No.2 for taking action for cancelling the regularization order. The order also mentions, for the first time, that petitioner No.3 signed Form Nos. A and B and indemnity bond either for respondent No.2 or in his individual capacity and that since the indemnity bond, which is shown to have been executed by respondent No.2 was signed by petitioner No.3, the same was an absurdity on the face of the record itself and that since respondent No.2 is challenging the very validity of the documents and the development agreement between petitioner Nos.1 and 2 and respondent Nos.2 and 3, the question of petitioner No.3 being authorized for making application for regularization by petitioner Nos.1 and 2 does not arise. Having carefully considered the contents of the show cause notice and the impugned order, I am of the considered view that the petitioners are denied a realistic opportunity of putting forth their case against the purported misrepresentation or fraud. While coming to this conclusion, this Court is conscious of the fact that petitioner Nos.2 and 3 in their explanation sought to explain their stand as to the manner in which petitioner No.3 applied for regularization as their agent and justify the same with reference to the terms of the development agreement, as pointed out by the learned counsel for respondent Nos.2 and 3. But from this mere fact that the petitioners themselves sought to explain their case, respondent No.1 is not relieved of the obligation to give details of the alleged fraud and misrepresentation in the show cause notice. The very purpose of issuing a notice is to afford the person, who is likely to be affected by the proposed order, a reasonable opportunity to explain his case and in the absence of the notice containing the required details and the basis for the allegations contained in such notice, the very purpose of issuing a notice will be rendered otiose and it does not serve the true purpose for which the notice is meant. In Nasir Ahmed v. Assistant Custodian General Evacuee Property[1] the Supreme Court held that a notice which does not contain facts and necessary particulars is no notice in the eye of law. I n Gokak Patel Volkari Limited v. Collector, Central Excise, Belgaum[2] the Supreme Court held that natural justice demands that the person, who is to be directly affected by the administrative action, should be given prior adequate notice of what is proposed so as to enable him (a) to make a representation on his behalf; (b) to appear at a hearing or enquiry if it is to be held, and; (c) to meet effectively the points raised. It was further held that if the person is prima facie found to be guilty of something, he must be told clearly what are the charges against him. The following passage at page 534 of ‘Administrative Law’ by H.W.R. Wade and C.F. Forsyth, seventh edition is apposite in this context. “Disclosure of the charge or of the opposing case must be made in reasonable time to allow the person affected to prepare his defence or his comments. He must have fair notice of any accusation against him, and this is commonly included in the right to a fair hearing by calling it the right ‘to notice and hearing’. At an inquiry, for example, any person who might be affected by adverse findings should be given fair warning so that he can defend himself against them at the hearing.” (Emphasis added) The notice in the instant case thus suffers from the incurable defect of non-disclosure of grounds in support of the accusation of misrepresentation and fraud. As noticed above, the main ground on which the impugned order was passed is that on the forms and bond, which were purported to have been filed by respondent No.2, petitioner No.3 signed. The case of petitioner Nos.1 and 2 is that petitioner No.3 was their agent and since respondent No.2 is the owner of the property, petitioner No.3 filed the necessary applications in the name of respondent No.2. Had respondent No.1 indicated the grounds on which the order of regularization was cancelled, in the show cause notice, the same would have afforded petitioner Nos.1 and 2 an opportunity of explaining in detail the circumstances in which petitioner No.3 signed in the forms and indemnity bond filed in the name of respondent No.2, with reference to the terms of the development agreement. Failure to mention in the show cause notice the grounds contained in the impugned order thus denied the petitioners a reasonable opportunity of explaining and proving their stand by raising necessary pleadings and adducing material in support thereof. In this view of the matter, I have felt persuaded to hold that show cause notice dated 15.02.2000 issued by respondent No.1 does not conform to the requirements of principles of natural justice and the impugned order is therefore liable to be set aside on this ground alone. I find another reason to invalidate the impugned order. A perusal of the impugned order shows that respondent No.1 declined to consider the contents of the explanation submitted by petitioner Nos.1 and 2 on the ground that they are uncalled for. In my view, this approach of respondent No.1 is not sound, because he failed to notice that existence of a development agreement between petitioner Nos.1 and 2 on the one side and respondent Nos.2 and 3 on the other, is not in dispute and the interest of petitioner Nos.1 and 2 over the building in question is undeniable. In the face of this undisputed fact, respondent No.1 cannot treat petitioner Nos.1 and 2 as persons unconnected with the dispute and decline to consider their explanation merely on the ground that the application for regularization was signed by petitioner No.3 and the order of regularization was passed in the name of respondent No.2. There is no gain saying of the fact that petitioner Nos.1 and 2 have substantial interest in the property in dispute and failure of respondent No.1 to look beyond the form in which the application for regularization was made and order dated 29.10.1999 was issued resulted in causing serious prejudice to petitioner Nos.2 and 3, because the order revoking the earlier order of regularization would vitally affect the interest of petitioner Nos.1 and 2. Viewed from this angle also, I am convinced that the impugned order, which failed to consider the explanation offered by petitioner Nos.1 and 2 on merits suffers from patent illegality. The contention of the learned counsel for respondent No.2 that the petitioner Nos.1 and 2 have no locus to file this writ petition is also rejected for the abovementioned reasons. With respect to the contention of the learned counsel for the petitioners that the provisions of Section 450 of the Act are not attracted, it is necessary to extract Section 450: “Power of Commissioner to cancel permission on the ground of material misrepresentation by applicant:- If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 428 or 433 or if the further information if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission.” A plain reading of the above-reproduced provision shows that it applies to cases where building permissions were obtained by a party on material misrepresentation or fraudulent statement contained in the notice given under Section 428 or 433. In the instant case, there is no allegation that either the original permit was obtained by material misrepresentation or fraudulent statement or the said permit was cancelled. In the impugned order what is revoked is order dated 28.10.1999 by which the constructions made in deviation of the original permit were regularized. Therefore, ex facie, the provisions of Section 450 have no application. But however, I find from proceedings dated 29.10.1999 that regularization was made subject to certain conditions including condition Nos.5 and 9, which read as under: “5. These orders shall stand cancelled if any deviations in information submitted with the plan are found. 9. The orders shall stand cancelled in the above conditions and/or or the information provided by the owner of the property are found to be false. From the abovementioned conditions it is clear that if respondent No.1 is satisfied that the information provided for regularization of the unauthorized illegal constructions was found to be false, the order itself is liable for cancellation. Thus, while Section 450 of the Act has no application, respondent No.1 has power to take action independent of the said provision in view of the above-reproduced conditions contained in order dated 29.10.1999. On the premise as above, WP.No.10781 of 2000 is allowed. Notice and order dated 15.02.2000 and 25.05.2000 respectively are quashed. Respondent No.1 is given liberty to issue a fresh notice in the light of the observations made above to the petitioners and respondent Nos.2 and 3. In such an event, respondent No.1 shall give the parties an opportunity of submitting their explanations and producing evidence both oral and documentary in support of their respective stands and pass detailed order at the end of the full-fledged enquiry. As a sequel to disposal of WP.No.10781 of 2000 in the manner indicated above, WPMP.No.13698 of 2000 filed by the petitioners is disposed of as infructuous. In view of disposal of WP.No.10781 of 2000 in the manner indicated above, WP.No.10780 of 2001 is disposed of as infructuous. C.V. NAGARJUNA REDDY, J Date: 19-03-2008. ES LR copies to be marked. [1] AIR 1980 SC 1157 [2] AIR 1987 SC 1161