IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY TUESDAY, THE SIXTEENTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN WRIT PETITION No.22961 of 2011 Between: Mohammad Bin Omar Yafai and others. … Petitioners And The Greater Municipal Corporation of Hyderabad, Reptd., by the Commissioner, Tank Bund Road, Hyderabad and another. … Respondents Counsel for the petitioners: Sri E.Manohar, Senior Counsel. Counsel for the respondents: Sri R.Radhakrishna Reddy. This Court made the following: ORDER:- This Writ Petition is filed for a Mandamus to set aside Notice No.2207/ACP/C4/SZ/GHMC/2011, dated 25- 7-2011, issued under Section 636 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short “the Act”). In the manner in which the Writ Petition is proposed to be disposed of, detailed facts need not be recorded. It will suffice to note that the petitioners, who constructed cellar, ground and three floors applied for regularization of the unauthorized constructions under Building Penalization Scheme (for short “the Scheme”). Prior to such applications, civil suit in O.S.No.7914 of 2007 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad, was filed by petitioner No.4 (minor - represented by petitioner No.1) for perpetual injunction to restrain respondent No.1 from demolishing the building. The said suit was disposed of on 28-8-2009 after the petitioners made applications for regularization of the unauthorized constructions. While decreeing the suit, the learned VI Junior Civil Judge, City Civil Court, however, gave liberty to the respondents to proceed against the petitioner No.4 in case it is found that the construction raised by him is illegal or unauthorized. In the said suit, the petitioner No.4 took the stand that the purported notice under Section 452 of the Act was not served on him. The civil Court observed that even though it is the case of the defendant-Corporation that such a notice was given, the said plea was not substantiated by filing a copy thereof. After disposal of the civil suit, the respondents have issued the impugned notice under Section 636 of the Act calling upon the petitioners to remove the unauthorized structures. In the said notice it is stated that the four applications filed by the petitioners for regularization were rejected on 11-10-2010. At the hearing, Sri E.Manohar, learned Senior Counsel representing the petitioners, submitted that in the face of the finding of the civil Court that no notice under Section 452 of the Act was issued, the respondents ought to have issued such a notice before issuing the notice under Section 636 of the Act. The learned Senior Counsel further submitted that the purported orders of rejection of the petitioners’ applications under the Scheme were never served on any of the petitioners. Sri R.Radhakrishna Reddy, learned Standing Counsel representing the Greater Hyderabad Municipal Corporation, produced the record at the hearing and submitted that the petitioners have only applied for regularization of the third floor of the building and that all the four applications were rejected on 11-10-2010 and the orders of rejection were served on the person concerned. The learned Standing Counsel further submitted that even the notice under Section 452 of the Act was served on the same person on whom the rejection orders were served. As regards the service of notice, dated 27-12-2007, under Section 452 of the Act, it is the case of the respondents that the said notice was served on the person concerned and that no fresh notice was served after disposal of O.S.No.7914 of 2007. At the hearing, it has come out that the notice under Section 452 of the Act was served on the person, who signed in Urdu, and, according the learned Senior Counsel for the petitioners, his name is Ali Bin Ubedi, who has nothing to do with the petitioners. The learned Standing Counsel for the respondents is unable to show the nexus between the said Ali Bin Ubedi and the petitioners. At any rate, the respondents failed to prove before the civil court in O.S.No.7914 of 2007 that the notice under Section 452 of the Act was served on the petitioners. After disposal of the suit, the respondents are expected to serve a notice under Section 452 of the Act before taking action under Section 636 of the Act. Admittedly, the respondents have not followed this procedure. From the Scheme of the Act it is evident that it is only after completion of the procedure relating to Section 452 of the Act, that further action under Section 636 of the Act can be initiated. As the respondents failed to follow due process in service of notice under Section 452 of the Act, issuance of notice under Section 636 of the Act cannot be sustained. As regards the rejection order under the Scheme, the record shows that these orders were served on the same person, viz., Ali Bin Ubedi. Therefore, it cannot be said that such service constitutes proper service of the orders on the person concerned. Unless the orders are served on the applicant i.e., petitioner No.1, or in the manner as envisaged under Sections 630 and 631 of the Act, the petitioners will be denied an opportunity of filing an appeal against the rejection orders as envisaged under the Scheme. For the above mentioned reasons, notice under Section 636 of the Act cannot be sustained and the same is accordingly set aside. However, the respondents are permitted to issue fresh notice under Section 452 of the Act and also serve copies of the orders rejecting the petitioners’ applications for regularization on them and if they refuse to receive the notices and the orders, the respondents shall be free to follow the procedure envisaged under Sections 630 and 631 of the Act. After service of such notice and orders, the respondents shall be free to take appropriate action in accordance with law. Subject to the above directions, the Writ Petition is disposed of. As a sequel to disposal of the Writ Petition, WPMP No.28095 of 2011 is disposed of as infructuous ------------------------------------ C.V.NAGARJUNA REDDY,J Date:16-8-2011 Note: Furnish copy in(3) days. B/O MNR