IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 14521 of 2007 Between: N.Laxmi Devi W/o.N.S.Rajeshwar Rao R/o.premises No.15-8-474 & 459 Feel Khana Hyderabad ..... PETITIONER AND The Commissioner, Municipal Corporation of Hyderabad Hyderabad .....RESPONDENT 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 an appropriate writ or order more in the nature of mandamus in declaring the notice which is without any number dated 3.7.2007 by the respondent as illegal,arbitrary, and unconstitutional consequently setting aside the same in the interest of justice and pass Counsel for the Petitioner:MR.M.GOVIND REDDY Counsel for the Respondent No.: MR.R.RADHA KRISHNA REDDY IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 15546 of 2008 Between: N. Laxmi Devi, W/o. N.S. Rajeshwar Rao, R/o. Premises No. 15-8-474 & 459, Feel Khana, Hyderabad. ..... PETITIONER AND 1 The Commissioner, Greater Hyderabad Municipal Corporation, Hyderabad. 2 Smt. Kasturi Bhati, W/o.Hukmichand Bhati, R/o. 15-8-476, Feelkhana, Hyderabad-A.P. 3 Smt. Chotudi Devi, W/o. Amarchand Bhati, R/o. 15-8-476, Feelkhana, Hyderabad-A.P. 4 Smt. Shobha Bhati, W/o. Sri Nemichand Bhati, R/o. 15-8-476, Feelkhana, Hyderabad-A.P. 5 Smt. Hukmichand Bhati, W/o. Bansilal Bhati, R/o. 15-8-476, Feelkhana, Hyderabad-A.P. .....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 an appropriate Writ or order,more in the nature of Mandamus, in declaring the proposed action of the respondent No.1 in planning to demolish the property bearing No. 15-8-459, Feel Khana, Hyderabad, without serving the notice to the Petitioner as illegal, arbitrary and unconstitutional,in the interest of justice and pass Counsel for the Petitioner:MR.M.GOVIND REDDY Counsel for the Respondent No.: . The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 15468 of 2008 Between: N. Laxmi Devi, W/o. N.S. Rajeshwar Rao, R/o. Premises No. 158474 & 459, Feel Khana, Hyderabad. ..... PETITIONER AND The Commissioner, Greater Hyderabad Municipal Corporation, Hyderabad. .....RESPONDENT 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 an appropriate writ or order, more in the nature of mandamus, in declaring the notice which is without any number dated 15- 7-2008 by the Respondent as illegal, arbitrary and unconstitutional, consequently setting aside the same, in the interest of justice and pass Counsel for the Petitioner:MR.M.GOVIND REDDY Counsel for the Respondent No.: . THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION Nos. 15468 OF 2008, 15546 of 2008 AND 14521 OF 2007 COMMON ORDER: 1. The issue involved in these three petitions is one and the same and therefore, they are heard together and are being disposed of by this common order. 2. Smt. N.Laxmi Devi is the petitioner in all the writ petitions. For the sake of convenience the pleadings of the parties in Writ Petition No. 14521 of 2007 are referred to. 3. The premises bearing Nos.15-8-474 and 15-8-459 situated at Feel Khana, Hyderabad was originally owned by A. Venkanna. His son Anand Rao succeeded the property by way of inheritance. Anand Rao has four sons and one daughter, who is no other than petitioner-N.Laxmi Devi. One of the sons namely A.Krishna Murthy filed suit for partition being O.S.No.1663 of 1994 on the file of I Additional Senior Civil Judge, City Civil Courts, Hyderabad. Initially an ex-parte preliminary decree was passed and thereafter N.Laxmi Devi filed a petition to set aside an ex- parte decree. The suit is stated to be pending. N.Laxmi Devi and his father Anand Rao filed O.S.No.4552 of 1999 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad. N.Laxmi Devi claimed the property under a registered gift deed dated 29-9-1984. Pending suit the brothers of N.Laxmi Devi allegedly alienated the properties under sale deed Nos. 600/2000 to 612/2000. Therefore, N.Laxmi Devi filed O.S.No. 401 of 2002 on the file of IX Additional Chief Judge cum Fast Track Court, City Civil Courts, at Hyderabad and the same is pending for adjudication. She also filed application under order 39 Rules 1 and 2 seeking injunction against his brothers restraining them from demolition the structures. She claims to have secured interim injunction vide I.A.No. 382 of 2005 in O.S.NO. 401 of 2002. When a notice was issued under Sections 456 (1) and (2) of Hyderabad Municipal Corporation Act, Smt. N.Laxmi Devi and his father Anand Rao filed W.P.No. 11860 of 2002. The said writ petition came to be allowed giving liberty to the Commissioner, M.C.H. to take necessary action in the light of the observations made thereunder. For better appreciation I may refer the relevant portion of the order in W.P.No. 11860 of 2002 which reads as hereunder:- “Sri M. Govind Reddy, learned counsel for the petitioners, placed reliance on Section 456(1) of the Act in support of the contention that whenever any action is to be taken for removal of structures which are in ruined or likely to tall the Commissioner is required to issue notice to the owner either to pull down or secure or remove or repair the structure so as to prevent the danger therefrom. The learned counsel would urge that the impugned notice does not specify as to course of action to be adopted by the Petitioners. He also placed reliance on the inspection report issued by M/s A.A. Abid & Associates, dated 1-11-2001 in support of the contention that the building is in good condition and can survive many more years. Sri Ganta Rama Rao, learned standing counsel for MCH, submits that under Section 459 of the Act it is always open to the petitioner to approach the Municipal Commissioner and explain by submitting proper explanation. Therefore no interference is called for. It is relevant to read Sections 456(1) and 459 of the Act. “456. Removal of structures, trees etc., which are in ruins or likely to fall:- 1) IF it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall, parapet, payment, floor, steps railings, door or window frames or shutters or roof, or other structure and anything affixed to or projection from or resting on, any building, wall, parapet or other structure) is in ruinous condition or likely to fall, or is in any way dangerous to any person occupying, resorting to or passing by, such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to do one or more of the following things namely: i) to pull down, ii) to secure, iii) to remove or iv) to repair such structure or thing, and to prevent all cause of danger therefrom. 459. Opportunity for stating objections:- The Commissioner shall issue a notice under sub- sections (1) and (2) of Section 456, sub-section (1) of Section 457 or sub-section (1) of Section 458, after giving the owner or occupier, as the case may be, a reasonable opportunity of starting any objection and adducing evidence, if any and after being satisfied that the objection which is raised is invalid or insufficient. Whenever it appears to the Commissioner that any structure is in the ruinous condition or likely to fall or in dangerous condition to any person occupying or to the passers by, he maybe written notice Section 459 of the Act. However, the impugned order cannot be sustained and is accordingly set aside. In the result, the writ petition is allowed giving liberty to the Commissioner of MCH to take necessary action immediately in the light of the observations made in herein above. No costs. “ 4. Subsequently, the Commissioner Municipal Corporation, Hyderabad respondent issued notice dated 3-7-2007 under Section 459 of Hyderabad Municipal Corporation Act, 1955 requiring the petitioner to explain as to why action could not initiated within three days since the building is in dangerous condition. The text of the notice issued to the petitioner reads as hereunder. : “It is reported that the building bearing H.No. 15-8- 459 & 474 situated at Feelkhana is in dangerous and dilapidated condition and likely to collapse at any moment causing danger to the lives of the inmates of the building/surrounding building and the public passing through the road/lane on the front/sides of the said building. In this case, the Executive Engineer Div.II, SZ, GHMC have inspected the site and recommended to issue to the said building as it may collapse at any time during this monsoon season. “You are therefore, your attention is invited under Section 459 of HMC Act, 1955 and you the owner/occupier of the said dilapidated building are hereby directed to explain the good reasons if any or to file objections if any why this office should not initiate the action U/S 459 of the H.M.C. Act, 1955 within three days. Since, the building is in dangerous condition and you will be held responsible for any danger/incident and any other problems created due to the said dilapidated structure and the expenses incurred will be recovered in terms of section 561 of the H.M.C. Act1955.” 5. The said notice is under challenged in W.P.No. 11451 of 2007 Smt. N. Laxmi Devi also filed W.P.No. 15468 of 2008 challenging the notice dated 15-7-2008 issued to Krishna Murthy under Section 456 of Hyderabad Municipal Corporation Act,1955. She also filed W.P.No. 15546 of 2008 assailing the action of the Commissioner, GHMC in planning to demolish the property bearing Nos. 15-8-474 and 15-8-459, Feelkhana, Hyderabad. In the said writ petition she impleaded Kasturi Bhati, Smt. Chotudi Devi , Smt. Shobha Bhati and Hukmichand Bhati as party respondents 2 to 5 alleging that they are the purchaser of the property from her brothers. 6. The Commissioner Municipal Corporation, Hyderabad which is sole respondent in the Writ Petition 14521 of 2007 and the 1st respondent in W.P.No. 15546 of 2008 filed counter affidavit. 7. In the counter affidavit, it is stated that notice under Section 459 as well as notice under Section 456 came to be issued as the premises is likely to be collapsed. Para 2 of the counter affidavit filed in W.P.No.14521 of 2007 need to be noted and it is thus: “It is submitted that this respondent officials have received several complaints from the neighbourers regarding the dilapidated building premises bearing No. 15-8-474, situated at Feelkhana, Hyderabad. Acting on the complaints received, the officials from section of Executive Engineer of the respondent corporation have inspected the above premises and observed that the building is constructed with Jack Arch Roof about 50 years, back, that the buildings is in two segments with ground and first floors, that one segment which is in vacant position is totally under dilapidated condition and the other segment where habitation is existing in both the ground and 1st floors developed cracks from inside. Further found that the girders which are projected from roof got rusted. The said rusted girder will loose binding between steel and mortor and may develop cracks in the roof and may lead to collapse of roof. As the life of Jack arch roof is considered to be lapsed, the strength of the building will automatically deteriorated. The respondent officials basing on the above said technical opinion, have issued notice under Section 459 and subsequently notice under Section 456 to the petitioner who is in occupation of the above property and also to the other respondents who are the owners of the above property by giving them sufficient time for getting the above property repaired. But the petitioner filed the present WP without taking any steps for getting the above property repaired. It is submitted that as per the technical opinion, the above property is in dilapidated condition and may collapsed at any time causing loss of life to inmates and neighbours. This respondent officials are duty bound to take necessary steps against the dilapidated structures in the above property so as to avoid its sudden collapse causing loss of life to inmates and neighbours. Therefore, in discharge of officials duties and basing on the complaints received and also on technical opinion of the Executive Engineer, the respondent officials have rightly issued the notice under Section 459 of HMC Act. Therefore, the allegations of the petitioner that the said notice was issued by the respondent officials in collusion with the other respondents is absolutely false and as such same are denied and the petitioner is put to strict proof of the same. The petitioner is also put to strict proof of the other averments and allegations made in para 9 and 10 of the affidavit, as they are also false and incorrect.” 8. Respondents 2 to 5 in W.P.No. 14521 of 2007 filed counter affidavit stating that the gift deed relied on by the N.Laxmi Devi has been cancelled by her father and therefore, the petitioner is not the owner of the premises bearing No. 15-8-474 and 459. 9. This is not the forum to decide whether the cancellation of gift deed executed in favour of N.Laxmi Devi is legal and proper. It is suffice to say that notice has been issued to N.Laxmi Devi who is the petitioner in all the three writ petitions directing her to remove the constructions, which are in dilapidated condition. If she has any objection, she has to report the same to the 1st respondent- Commissioner GHMC and invite orders thereon. 10. Indeed Section 459 of Hyderabad Municipal Corporation Act contemplates receiving objections in case objectors choose to appear before passing final orders. 11. In that view of the matter, the writ petitions are disposed of directing the petitioner-N.Laxmi devi to put on her objections to the notice served on her under Section 459 of the Hyderabad Municipal Corporation Act, 1955 and thereupon the Commissioner-1st respondent Commissioner, GHMC shall consider the objections and take appropriate further action. The petitioner- N.Laxmi Devi shall put on objections within two weeks from today. Pending disposal of the objections, there shall be status quo existing as on this day with regard to the structures over the premises No. 15-8-474 and 459 situated at Feelkhana, Hyderabad. No order as to costs. _______________________________ Justice B. Seshasayana Reddy 14th November, 2008. KM THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION Nos. 15468 OF 2008, 15546 of 2008 AND 14521 OF 2007 14th November, 2008.