IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 27245 of 2006 Between: Syed Shah Akber Nizamuddin Hussaini, S/o. Late Mr. Syed Qutubuddin Hussaini, Dargah Hazrath Shah Khamoosh Sahab Khibla Rh., r/o. H.No. 5-6- 486, Nampally, Hyderabad. ..... PETITIONER AND 1 Municipal Corporation of Hyderabad, Rep by its Commissioner, Office at Tank Bund Road, Saifabad, Hyderabad. 2 The Assistant City Planner, Town & Planning, Circle No. VI, Municipal Corporation of Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, Order or Direction more appropriately a writ in the nature of Writ of Mandamus declaring the action of the respondents attempting to demolish the wakf property house bearing No. 5-6-496 & 497, situated at Nampally,. Hyderabad, to the petitioner without follwoing due process of law, illegal, void, and ultra vires, in the interest of justice and equity or pass any 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.A.M.QURESHI Counsel for the Respondents.: MR.R.RADHA KRISHNA REDDY The Court made the following : O R D E R : This writ petition has been filed by Syed Shah Akber Nizamuddin Hussaini with a prayer to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus declaring the action of the respondents in attempting to demolish the house bearing No.5-6-496 and 497, situated at Nampally, Hyderabad without following due process of law as illegal, void and ultra vires. 2. The averments in the writ affidavit in brief are: Dargah Hazrath Shah Khanmoosh situated at Nampally, Hyderabad is a registered Wakf institution. The dargah has having attached house bounded by – East: Public Road; West: Property belongs to Sultan Nawaz Jung; North: Dargah Yousuf Shareef Sahab Qibla; and South: Garden. The petitioner being the Sajjada Nashim and Mutawalli of the Dargah undertook repairs and renovation of the house No.5-6-496 and 497. The petitioner surrendered the prime land on the eastern side of the house for the purpose of road widening from Ek Minar Masjid to Darus-salaam without any compensation. In spite of surrendering the part of the site without any compensation, the respondents failed to issue the TDR certificate. When the petitioner was carrying out repairs to the existing house, the officers and staff of the respondents came to the site and tried to demolish the same. Apprehending highhanded demolition of the structures, the petitioner approached this Court invoking jurisdiction under Article 226 of the Constitution of India. 3. 2nd respondent filed counter-affidavit. S.A.Sami, Assistant City Planner, Circle-VI, MCH, Hyderabad, has sworn to the counter-affidavit. It is averred in the counter-affidavit that a show-cause notice under Section 452 of the Hyderabad Municipal Corporation Act, 1955, was served on the petitioner on 22.12.2006. The petitioner did not submit any explanation to the show-cause notice and instead he rushed to this Court invoking the jurisdiction under Article 226 of the Constitution of India. For better appreciation, I may refer para.3 of the counter-affidavit and it is thus: “In reply to paras 3 to 9 of the affidavit, the allegation that officials of the respondent has threatened and tried to demolish the structure is false and invented only for the purpose of filing the present writ petition. Further the allegation that this respondent has not issued any notice is false and baseless. I submit that the petitioner has not obtained any permission from the respondent Corporation and commenced the construction work. I further submit that on noticing about the unauthorized construction being carried on by the petitioner the officials of the respondent corporation has issued a show cause notice u/S.452 of the Hyderabad Municipal Corporation Act, 1955 on 22.12.2006. It is relevant to submit that instead of submitting the explanation to the show cause notice the petitioner has approached this Hon’ble Court. It is further submitted that the petitioner has suppressed the fact that the respondent corporation has already issued a notice and as such petitioner is not entitled for any equitable relief under Art.226 of the Constitution of India.” 4. The petitioner filed reply affidavit, wherein it is stated that the petitioner did not receive the show-cause notice allegedly issued under Section 452 of the Hyderabad Municipal Corporation Act, 1955. 5. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the respondents-Corporation. 6. Learned counsel appearing for the petitioner submits that the petitioner did not receive any show-cause notice allegedly issued under Section 452 of the Hyderabad Municipal Corporation Act, 1955 and therefore, the petitioner is entitled to the relief as sought for in the writ petition. 7. Learned Standing Counsel appearing for the respondents- Corporation submits that a show-cause notice was issued to petitioner and the same has been served on the petitioner on 22.12.2006. 8. When the matter came up hearing on 14.09.2007, a direction was given to the respondents to place on record the material with regard to issuance of notice under Section 452 of the Hyderabad Municipal Corporation Act, 1955. In compliance of the direction given by this Court, the learned Standing Counsel appearing for the respondents-Corporation placed on record copy of the notice dated 20.12.2006. It contains the signature of the petitioner as a proof of receipt of the copy of the notice. Learned counsel appearing for the petitioner seriously disputing the signature of the petitioner appearing on the notice. It is not the forum to decide whether the signature appeared on the notice is that of the petitioner or not. Since necessary orders have been passed by the respondents under Section 452 of the Hyderabad Municipal Corporation Act, 1955, it is for the petitioner to question the same in accordance with the provisions of the Hyderabad Municipal Corporation Act, 1955. 9. Accordingly, the writ petition is dismissed at the admission stage giving liberty to the petitioner to challenge the orders passed by the 2nd respondent in accordance with the provisions of the Hyderabad Municipal Corporation Act, 1955. No costs. ______________________ B.SESHASAYANA REDDY, J. Date: 16th June, 2008. cs .....ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RLD}