HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.23246 of 2007 Date : 24.11.2011 Between : Smt. Potluri Lakshmi. …..Petitioner And Greater Visakhapatnam Municipal Corporation, rep. by its Commissioner. …..Respondent HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.23246 of 2007 ORDER : This writ petition is filed with the prayer which reads as under : “to issue a writ of Mandamus directing the respondent and its men not to remove or demolish the constructions legitimately made by me in my site as per building permission B.A.No.10381/2006/ACP-II, dated 19.01.2007 accorded by the respondent by holding the proceedings B.A.No.10381/2006/ACP-II, dated 02.04.2007 as illegal and contrary to the provisions of the Hyderabad Municipal Corporation Act and to the Costal Zone Regulation.” The petitioner is the owner of land covered by T.S.Nos.19/1P and 19/2P in Sector No.9 of MVP Colony of China Waltair of Visakhapatnam. With a view to make constructions, she applied to the respondent-Municipal Corporation for grant of building permission for construction of individual residential building consisting of ground and 1st floors in Plot No.MIG-14 in the aforesaid piece of land. At first instance, permission was granted on 28.04.2006. Thereafter, on the revised plan submitted by the petitioner, same was also approved and permission was also granted as per the revised plan on 19th January 2007. It is not in dispute that the petitioner has constructed the building based on the construction permission as revised by the proceedings dated 19th January 2007. In view of the letter dated 02.03.2007, addressed by the Special Chief Secretary to Government, Environment, Forests, Science and Technology Department, Government of Andhra Pradesh, the commissioner, Greater Visakhapatnam Municipal Corporation, in exercise of powers under Section 450 of the Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as ‘the HMC Act’), passed the impugned order, dated 02.04.2007, in Proceedings B.A.No.10381/2006/ACP-II, cancelling the permission granted to the petitioner stating that the China Waltair area in Muvvalavanipalem ward has been categorized as Coastal Regulatory Zone-III (CRZ- III), and that construction of residential buildings are not permissible in such areas. In this writ petition, it is the case of the petitioner that the impugned order is passed without affording any opportunity and without giving any prior notice to the petitioner. It is submitted that the area falls only in CRZ-II, but not in CRZ-III. It is submitted that once the permission is granted, in the absence of any material misrepresentation or fraud on the part of writ petitioner, the respondent-Corporation is not empowered to pass the impugned order of cancellation in exercise of powers under Section 450 of the HMC Act. The Commissioner, Greater Visakhapatnam Municipal Corporation has filed counter affidavit. In the counter, the respondent has admitted grant of permission at first instance and also approvals made to the revised proposal with certain modifications. It is alleged in the counter that the petitioner has deviated the sanctioned plan and made constructions without leaving setbacks and coverage area as per the approved plan. Further, reference is made to the letter addressed by the Visakhapatnam Urban Development Authority, dated 21.03.2007, issued in L.Dis.No.198/07/L4/Plg, informing the respondent-Corporation that the land in Sy.Nos.19/1 and 19/2C(P) of China Waltair village falls in CRZ-II, and basing on the same, building permission was accorded by the respondent-Corporation. While referring to the letter issued by the Special Chief Secretary, Environment, Forests, Science and Technology Department, Government of Andhra Pradesh, dated 20.03.2007, issued in D.O.Lr.No.1849/CZMA/07, it is stated that in the said letter, it was informed that the site in question falls in CRZ-III, hence, permission granted by the petitioner is to be revoked, based on the said letter, impugned order is passed revoking the permission granted to the petitioner. Heard learned counsel for petitioner Sri Addepalli Suryanarayana and the learned Standing Counsel appearing for the respondent-Corporation. In this writ petition, it is not in dispute that based on the documents furnished by the petitioner, at first instance, permission was granted to the petitioner to make constructions in ground and first floors, and thereafter, on submission of revised plan by the petitioner with certain modifications, same was also approved on 19th January 2007, and immediately thereafter, constructions were taken up and building was completed. Section 450 of the HMC Act empowers the Commissioner to cancel the permission on the ground of material misrepresentation by the applicant or in the event of making any fraudulent statement in the notice given or information furnished under Sections 428 or 433 of the HMC Act. In this case, even taking as it is, the averments made in the counter affidavit, there is no such misstatement or any fraud on the part of the applicant while submitting the application for grant of permission. When the application was submitted by the petitioner, it is for the respondent- Corporation to consider whether the land in question falls in the permissible zone or not, before granting permission. In any event, in the absence of fraud or suppression of any material on the part of petitioner, the respondent-Corporation is not empowered to issue notice under Section 450 of the HMC Act, which is made applicable to the Visakhapatnam Municipal Corporation, to cancel the permission granted to the petitioner. It is also to be noted that the impugned proceedings are issued solely based on the directions issued by the Special Chief Secretary, Environment, Forests, Science and Technology Department, Government of Andhra Pradesh, in the letter, dated 20.03.2007, issued in D.O.Lr.No.1849/ CZMA/07. When permission is granted to the petitioner and constructions have been taken up, it is not known as to how such letter could be issued to the respondent-Corporation without even hearing the petitioner and giving opportunity to her. Even a perusal of the proceedings issued by the Commissioner shows that there is no indication of giving any prior opportunity to the petitioner, before ordering cancellation, and it is also not controverted in the counter filed by the respondents. Therefore, this Court is of the view that the impugned order is passed in gross violation of the principles of natural justice. Once permission is granted, and if for any reason it is to be cancelled, the applicant in whose favour permission is granted, is entitled for an opportunity of hearing by way of show cause notice. In the instant case, it is clear that no such opportunity is given to the petitioner and the impugned order is passed in exercise of powers under Section 450 of the HMC Act. In the counter affidavit filed by the respondent-Corporation, it is stated that constructions are made in deviation to the sanctioned plan. With regard to the said deviations, it is the case of petitioner that she has already made an application to the Government, seeking regularization of such constructions and the said application is pending. With regard to said alleged deviations, it is open for the respondent- Corporation to take steps subject to the outcome of the application filed by the petitioner, which is stated to be pending before the Government. As this Court is of the view that the impugned order is passed though there is no fraud or mis-statement on the part of petitioner, and as the same is also passed in violation of the principles of natural justice, it is liable to be set aside. For the aforesaid reasons, the writ petition is allowed and the order, dated 02.04.2007, passed by the respondent-Corporation in B.A.No.10381/2006/ACP-II, is set aside. No order as to costs. ______________________ R. SUBHASH REDDY, J 24th November 2011 ajr