THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. No.29118 and 23931 of 2011 Between: W.P. No.29118 of 2011 G.Daniel and another … Petitioner And Greater Hyderabad Municipal Corporation Rep.by its Commissioner and others. … Respondents W.P. No.23931 of 2011 Dr.G.Zion Eluzai and another And Greater Hyderabad Municipal Corporation Rep.by its Commissioner and others. … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. No.29118 and 23931 of 2011 COMMON ORDER: Since the subject matter of both the writ petitions are related to each other, therefore, they are being disposed of by this common order. W.P. No.29118 of 2011 has been filed questioning the action of the respondents in canceling the permission granted on 24.03.2011 vide order dated 21.04.2011 and consequential notices dated 25.08.2011 and 12.10.2011. W.P. No.23931 of 2011 has been filed questioning inaction on the part of the respondents in stopping and demolishing the illegal structures being erected by the unofficial respondents 4 and 5, who are the petitioners in W.P. No.29118 of 2011. Brief facts of the case that are necessary for disposal of these writ petitions are as under. The petitioners in W.P. No.29118 of 2011 claim to be the absolute owners and possessors of house bearing No.12-2-459/2, Plot No.A2 & A3, situated at Guddimalkapur, Hyderabad by virtue of partition deed dated 12.10.2010 entered into between the petitioners and their sister and the petitioners succeeded the said property from their father. It is submitted that with a view to construct the building on the petition scheduled property, the petitioners stated to have made an application to the respondents Corporation for sanction of building permission and the respondents have accorded permission vide permit dated 24.03.2011 for construction of stilt plus four upper floors. While so, when the construction is in progress, construction completed up to the stilt floor and raised the columns of the first floor, the 3rd respondent issued notice dated 25.08.2011 under Section 452(1) of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) stating that the petitioners are unauthorisedly and without any valid permission constructing the building and that during the course of inspection of the site, it is noticed that the measurement of site boundaries shown in the building plans are not tallying with the site physically and asked to show cause within ten days as to why the building construction found contrary to the sanctioned plan shall not be removed. In response to which, the petitioners, while denying the averments stated in the said notice, stated to have submitted their representation on 05.09.2011 requesting to conduct a joint inspection by fixing a date of inspection of the site. Thereafter, accordingly, after giving notice dated 07.09.2011, joint inspection was conducted and found that the dimensions of the boundaries given in the plan are very much tallying physically with the site. But, however, it is submitted that the 3rd respondent came forward with a new allegation in the notice dated 24.09.2011 that as per the representation of the petitioners, joint inspection, for taking the measurement, has been conducted and observed the following differences. “a) There is an offse towards Western side i.e. North-West Corner in the building plans and the same is not available at site. b) As per the sanctioned sub-division approved plan accorded to Sri G.S. Jaykar vide Permit No.163/16 of 2001 in file No.45/SD/LYT12/99, 6’.0” strip of site is affected under proposed 40’.0” wide road towards Northern side but the applicant has left only 4’.6”.” At this juncture, it is submitted that the respondents started interfering with the construction of the building, therefore, they filed a suit in O.S. No.2474 of 2011 on the file of the VI Junior Civil Judge, City Civil Courts, Hyderabad and obtained ad interim injunction against the respondents Corporation by an order dated 30.09.2011 in I.A. No.622 of 2011. It is further submitted that they secured the Xerox copies of the letters dated 07.04.2011 and 21.04.2011, stated to have been issued by the 3rd respondent canceling the permission granted to them. In this regard, it is submitted that the respondents did not serve any show cause notice proposing to cancel the permission. While so, it is submitted that the 3rd respondent issued another notice dated 12.10.2011 under Section 636 of the Act asking the petitioners to remove the building constructed within a period of three days. In this regard, it is submitted that had the respondents have served the show cause notice on the petitioners and have given an opportunity, the petitioners would have proved that the allegations averred in the notice are incorrect and the respondents would not have passed the impugned order dated 21.04.2011, canceling the permission. It is also submitted that the permission is granted by the 2nd respondent, Zonal Commissioner and as seen from the impugned proceedings, show cause notice and final orders, are passed by the 3rd respondent, City Planner, who is subordinate to the 2nd respondent. As such, the permission granted by the 2nd respondent cannot be cancelled by the 3rd respondent. Hence, the petitioners filed the W.P. No.29118 of 2011. On behalf of the respondents 1 to 3, while denying the averments of the petitioners, counter affidavit has been filed, inter alia, stating that the petitioners were granted provisional permission for construction of stilt plus four upper floor under the green channel and during the site inspection, it was observed that the measurements of site boundaries shown in the building plan were not tallying with the site physically. Therefore, the petitioners were issued show cause notice dated 07.04.2011 for cancellation of the provisional building permission issued on 16.04.2011 to their address as mentioned in the application, through a private courier service. In spite of receipt of the said notice, the petitioners have not given any reply within the stipulated time. Therefore, the provisional building permission was cancelled and the same has been informed to the petitioners vide letter dated 21.04.2011. Consequent to the cancellation of the provisional permission, the construction made by the petitioners up to raising columns on the stilt floor and laid slab thereon has become unauthorized construction, hence, the action was initiated by issuing show cause notice dated 25.08.2011 under the Section 452(1) of the Act for removal of unauthorized construction. Subsequently, as per the request made by the petitioners on 05.09.2011, the respondents have conducted joint inspection with the petitioners and the officials of the Corporation have explained in detail about the irregularities committed by the petitioners and suggested them to submit revised plans by making necessary corrections, so as to enable the respondents to accord the fresh permission, but the petitioners failed to submit the revised building plans. Therefore, further action is initiated for demolition of unauthorized construction and accordingly, final notice dated 12.10.2011 has been issued directing the petitioners to remove the unauthorized construction, failing which the Corporation will remove the same. It is also submitted that apart from the present writ petition, the petitioners have filed O.S. No.2474 of 2011 and obtained interim injunction in I.A. No.622 of 2011 on 30.09.2011 restraining the respondents Corporation from interfering or demolishing the property in question. It is also submitted that the respondents are taking steps for getting to vacate the said injunction order. Further, it is submitted that the 2nd respondent has sanctioned the provisional permission to the petitioners for construction of the building on the site in question and after observing that the petitioners have commenced the construction in deviation to the sanctioned plan, the 2nd respondent being sanctioning authority, has taken a decision to cancel the permission and approved the same, pursuant to that the 3rd respondent cancelled the provisional building permission granted to the petitioners. Hence, the impugned order of cancellation of original permission as well as consequential proceedings initiated for demolition of the initial construction made on the site are valid and in accordance with law and it does not warrant any interference of this Court while exercising the jurisdiction under Article 226 of the Constitution of India. The learned counsel for the petitioners would submit that the action of the respondents in issuing notice dated 21.04.2011, 25.08.2011 and 12.10.2011 is bad and illegal since the same are consequent to notice dated 07.04.2011, wherein it is categorically mentioned that the site has been inspected for confirmation of the building permission and observed that the measurements of site boundaries shown in the building plans are not tallying with the site physically. It is also submitted that the notice dated 07.04.2011 has not been served on the petitioners, which resulted for consequential notices dated 21.04.2011, 25.08.2011 and 12.10.2011. Therefore, the action of the respondents, in issuing the consequential notices, without serving the show cause notice dated 07.04.2011, is in violation of principles of natural justice and therefore, the same are liable to be set aside. He further submitted that the procedure contemplated under Section 629, 630 and 631 of the Act has not been followed by the respondents. It is further submitted by the learned counsel that in the letter dated 07.04.2011 it is categorically mentioned that the site has been inspected for confirmation of the building permission and observed that the measurements of site boundaries shown in the building plans are not tallying with the site physically and whereas, after conducting joint inspection, it is mentioned in the letter dated 24.09.2011 that there is an offset towards Western side i.e. North-West Corner in the building plans and the same is not available at site and as per the sanctioned sub-division approved plan accorded to father of the petitioners, 6’.0” strip of site is affected under proposed 40’.0” wide road towards Northern side but the applicant has left only 4’.6”. Whatever the grounds that have been mentioned in the letter dated 07.04.2011 are completely different from the grounds that have been mentioned in the letter dated 24.09.2011. Since the letter dated 07.04.2011 has not been served on the petitioners, therefore, they have not been given any opportunity of giving explanation to the allegations leveled in the said letter. Therefore, consequential notices have no value in the eye of law and therefore, the same are liable to be set aside. In support of his contention, he placed reliance in the case of GARAPATI RADHA v. COMMISSIONER, VIJAYAWADA MUNICIPAL CORPORATION, VIJAYAWADA[1]. On the other hand, the learned standing counsel appearing for the respondents, Municipal Corporation, would submit that as per the records available with the respondents, which reveals that the notice dated 07.04.2011 was served on the petitioners and there is a receiver’s small initial but it is not known that whose initial is that. As the records clearly shows that the show cause notice dated 07.04.2011 was served on the petitioners and as there was no response from the petitioners, the respondents have proceeded further in initiating further action and accordingly issued consequential notices dated 21.04.2011, 25.08.2011 and 24.09.2011. Therefore, the action of the respondents is in accordance with procedure and the same is sustainable and the writ petition is liable to be dismissed. Heard the learned counsel for the petitioners and the learned standing counsel appearing for the respondents, Municipal Corporation and perused the material on record. The point that arises for consideration is whether the petitioners are entitled to the relief as sought for by them. The main grievance of the petitioners is that though they are constructing the building in accordance with the sanctioned plan, the respondents are interfering with the same on the ground that they have sanctioned provisional permission to the petitioners and during the course of physical verification of the site, they found some deviations. Therefore, the respondents stated to have issued show cause notice dated 07.04.2011 to the petitioners, who categorically averred that the said notice has not been served on them. As per the records of the respondents, the said notice dated 07.04.2011 is served on the petitioners and as there was no response from the petitioners, in response to the said notice dated 07.04.2011, the respondents have issued consequential notices and proceeded further. Therefore, at this juncture, a point arises that whether the notice dated 07.04.2011 has been served on the petitioners or not, if the said notice is served on the petitioners, consequential notices are valid or not in the eye of law. Therefore, prima facie, it has to be decided whether the said notice has been served or not? As it is a specific averment of the petitioners that the show cause notice dated 07.04.2011 has not been served on them for which, the response of the respondents is that there is a small initial but it is not known whose initial is that. Under those circumstances, burden of proving the service of said notice lies with the respondents and the respondents did not put forth any evidence to the effect that the notice is served except stating that there is a small initial, which is not sufficient to sustain under law. Therefore, since failure of respondents in proving that the notice dated 07.04.2011 is served on the petitioners, this Court is left with no option except to sustain the averment of the petitioners that the said notice has not been served on them. Without service of show cause notice and proceeding further for demolition of structures is in violation of principles of natural justice and therefore, notice dated 07.04.2011 is liable to be set aside and accordingly, the same is set aside. However, consequent to setting aside the notice dated 07.04.2011, it is needless to observe that consequential notices dated 21.04.2011, 25.08.2011, 24.09.2011 and 12.10.2011 are also set aside. Insofar as, the grievance of the petitioners in W.P. No.23931 of 2011 is that pursuant to the show cause notice dated 07.04.2011, the unofficial respondents 4 and 5, who are petitioners in W.P. No.29118 of 2011, have not submitted any explanation and therefore, subsequently, permission dated 24.03.2011, granted by the official respondents, was cancelled. Even in spite of cancellation of permission, the unofficial respondents are proceeding with the illegal and unauthorized construction. Therefore, they made a detailed representation and requested the official respondents to stop the constructions and demolish the illegal structures being made by the unofficial respondents 4 and 5, who are petitioners in W.P. No.29118 of 2011, but the official respondents have failed to do so. Hence, they filed the W.P. No.23931 of 2011 seeking direction to the official respondents to demolish the entire structures made on the premises in question. Since the notice dated 07.04.2011 and consequential notices have been set aside, as stated hereinabove, this Court is of the view that no further direction needs to be passed in W.P. No.23931 of 2011. But, however, the petitioners are given liberty to make a fresh representation to the respondents, in such an event, the respondents are directed to consider the same and pass appropriate orders, in accordance with law. Further, it is clarified that this order does not preclude the respondents, Municipal authorities, from taking any action, in accordance with law by following due process of law. With the above directions, these writ petitions are disposed of. There shall be no order as to costs. ________________________ JUSTICE G.CHANDRAIAH Date: 28.03.2012 LSK [1] 2008-ALT-3-38, 2008-ALD-5-226