IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 12192 of 2008 Between: P.Vaman Rao S/o.Late Sri P.Anand Rao Premises No.6-3-883/1, Punjagutta Hyderabad-500082,Andhra Pradesh ..... PETITIONER AND 1 The Commissioner and Special Officer, Greater Hyderabad Municipal Corporation, Tank Bund,Hyderabad 2 The Deputy Commissioner , Town Planning Section Circle - X,Khairatabad,Hyderabad-500004 3 The Additional Commissioner (Planning and Coordination) Municipal Corporation of Hyderabad 4th floor, MCH Building, Tank Bund, Hyderabad 4 The Assistant medical Officer of Health, Greater Hyderabad Municipal Corporation, Circle -X, Khairatabad, Hyderabad-500004 .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ order or direction more particularly one in thenature of writ of certiorari quashing the proceedings in Rc.No.883/GHMC/2008 dated 10.6.2008 issued by the 4th respondent as illegal, arbitrary, and violative of petitioner rights guaranteed under Articles 14 and 19 of the Constitution of India. Counsel for the Petitioner: MR.S.R.MAHAJIR Counsel for the Respondents: SMT.KALPANA EKBOTE The Court made the following : ORDER: P.Vaman Rao calls in question in this writ petition the action of the Assistant Medical Officer of Health, Greater Hyderabad Municipal Corporation, Circle-X, Khairatabad, Hyderabad-4th respondent in ordering closure of his business under proceedings bearing RC.No.883/GHMC/2008, dated 10.06.2008. 2. The petitioner is owner and possessor of the premises bearing door No.6-3-883/1, Punjagutta, Hyderabad. He has been carrying on business in the said premises under the name and style of ‘M/s.Exim Marketing Private Limited’ since the year 1989 after obtaining requisite trade lincence. Part of the premises is proposed to be affected in road widening and a draft notification under Section 4 of the Land Acquisition Act under Memo.No.D3/142/2005, dated 27.01.2005, came to be issued. He filed objections to the acquisition proceedings. His objections came to be rejected with a suggestion to approach the Municipal Corporation for F.S.I. benefit and compensation. During the course of discussions and correspondence in the matter of acquisition of part of his premises, he made a representation dated 10.03.2008 to the Deputy Commissioner, Town Planning Section, Circle-X, Khairatabad, Hyderabad-2nd respondent, requesting him to consider restriction of the road widening to 25 feet which would be in line with the adjoining buildings on both sides of his premises. The 2nd respondent neither rejected nor considered the proposal. He reiterated his request under representation dated 12.05.2008. Whileso, the Additional Commissioner (Planning and Co-ordination), Municipal Corporation of Hyderabad-3rd respondent directed him under notice No.512/BPS/C- X/GHMC/2008, dated 12.05.2008 to avail the opportunity of regularization under G.O.Ms.No.901, dated 31.12.2007 and G.O.Ms.No.112, dated 31.01.2008. The Commissioner and Special Officer, Greater Hyderabad Municipal Corporation, Hyderabad-1st respondent issued show-cause notice to him vide file No.VC.No.883/1/3/6/TPS/GHMC/C-X/09, dated 12.05.2008 under Section 452 (2) of the Hyderabad Municipal Corporation Act stating that he commenced the construction of the building pursuant to Permit No.32/27, dated 26.08.1987 without issuing commencement notice and sought an explanation as to why the building or portion of it should not be removed or altered or amended or pulled down. On the very same day, the Assistant Medical Officer of Health, Greater Hyderabad Municipal Corporation, Circle-X, Khairatabad, Hyderabad-4th respondent issued show-notice under Section 521 of the Hyderabad Municipal Corporation Act alleging violations / deviations / unauthorized usage / use of building. He submitted an explanation to all the three show-cause notices served on him. The Assistant Medical officer of Health, Greater Hyderabad Municipal Corporation, Circle-X, Khairatabad, Hyderabad-4th respondent issued proceedings bearing No.Rc.883/GHMC/2008, dated 10.06.2008 ordering closure of his business. According to the petitioner, the show-cause notice dated 12.05.2008 issued to him by the Assistant Medical Officer of Health, Greater Hyderabad Municipal Corporation, Circle-X, Khairatabad, Hyderabad-4th respondent without even striking off the irrelevant and inapplicable portions of the pro-forma is illegal and improper. I deem it appropriate to refer paras.17 and 18 of the writ affidavit for better understanding of the grievance of the petitioner and they are: “17. I submit that the action of the 4th respondent in issuing the Notice dated 12.05.2008 without even striking off the irrelevant and inapplicable portions from the proforma would show that arbitrariness of the Respondent. I submit that further after acknowledging the receipt of my reply to his Notice dated 12.05.2008 has recorded that I failed to respond to his notice and therefore concluded that I had no explanation to offer and consequently proceeded to close my business shows that the respondent has not applied his mind and issued the impugned proceeding with a mala fide intention. 18. I submit that inasmuch as the 4th respondent arbitrarily closed my business where all my records pertaining to the property are available, I am not in a position to file all the documents. I submit that I am dependent on the business that has been illegally and arbitrarily closed by the 4th respondent herein, without considering my reply or even verifying their own records. I submit that I would loose the clientele to other competitors and would suffer grave and irreparable loss and damage. I submit that I apprehend that the respondents in furtherance of their illegal acts may attempt to dispossess me illegally from my building if this Hon’ble Court does not intervene in the matter and direct the respondents to follow the due process of all in acquiring a portion of my property for the proposed road widening.” 3. The respondents filed counter-affidavit. K.Dhananjaya Reddy, Additional Commissioner (Planning), Greater Hyderabad Municipal Corporation, has sworn to the counter-affidavit. The sum and substance of the counter-affidavit is that the petitioner obtained permission for stilt floor for parking plus three floors and partly 4th floor for residential purpose vide Permit No.32/27, dated 26.08.1987 in File No.151/TPS/1987. But, he constructed the building in deviation of the sanctioned plan. He changed the usage of the building from residential to commercial. The High Court in suo moto Writ Petition bearing W.P.No.15559 of 2006, dated 26.07.2007 ordered that no business activity should be carried in residential premises. With regard to the affected portion of the building in road widening, the Additional Commissioner and CCP apprised the petitioner personally and also verified the premises and measured the land and told the petitioner that the proposed acquisition of the portion of the premises is in clear alignment of the road. Notices have been issued to the petitioner to get the unauthorized constructions regularized and also use of the premises from residential to commercial. The petitioner raised one additional floor over and above the permitted floors of the stilt for parking and three upper floors and partly fourth floor. A show-cause notice was issued to the petitioner calling for explanation. Since the explanation offered by the petitioner is found to be unsatisfactory, premises of the petitioner came to be closed on 10.06.2008. The petitioner failed to produce either regularized plan or trade licence. The allegation that the petitioner would be dispossessed from his premises is baseless. The affected portion of the premises required for road widening would be taken in accordance with the provisions of the Land Acquisition Act or with the consent of the petitioner. 4. The petitioner field reply affidavit. It is stated in the reply affidavit that the 4th respondent did not consider his explanation dated 16.05.2008 and proceeded to issue the proceedings impugned in the writ petition. He asserted that the respondents themselves issued trade licence in the year 1989. 5. When the writ petition came up for admission, with the consent of both the counsel, the writ petition itself is taken up for final disposal. 6. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the respondents-Corporation. 7. Learned counsel appearing for the petitioner submits that the respondents resorted to extreme step of ordering closure of the business of the petitioner since he did not oblige them to handover the extent of premises as desired by them in road widening. He further submits that the petitioner has already filed application for availment of the benefit under building penalization scheme and the said application is pending consideration. He would also submit that the petitioner possessed trade licence to carry on the business in the premises and therefore, the action of the respondents in ordering closure of the business is highly arbitrary. 8. Learned Standing Counsel appearing for the respondents- Corporation submits that the petitioner constructed the building without obtaining any permission and constructions came to be regularized under G.O.Ms.No.419 MA dated 30.07.1998. Thereafter, the petitioner made further constructions and converted the very use of the premises from residential to commercial. Learned Standing Counsel placed on record the entire file relating to regularization of the unauthorized constructions made by the petitioner prior to 1998. 9. As per the file placed before me, the building comprises of cellar for parking plus ground floor with mezzanine floor plus upper three floors. As per the general remarks made by the Town Planning Section of the G.H.M.C., the petitioner requested for regularization of the constructions of cellar for parking plus ground floor with mezzanine floor plus upper three floors. The matter did not rest there. According to the respondents, the petitioner converted the use of the building from residential to commercial and put up further constructions. Even according to the petitioner, he submitted application claiming benefit under G.O.Ms.No.901, dated 31.12.2007 and G.O.Ms.No.112, dated 31.01.2008 and the said application is stated to be pending consideration. The challenge in this writ petition is to the proceedings issued by the 4th respondent ordering closure of the business of the petitioner. 10. Indisputably before the order impugned in the writ petition, a show- cause notice came to be issued to the petitioner. The show-cause notice needs to be extracted to know whether the explanation given by the petitioner in any way clarifies the queries raised in the show-cause notice and it reads as hereunder: “GREATER HYDERABAD MUNICIPAL CORPORATION Office of the Commissioner & Special Officer, GHMC, Hyderabad. Rc.No.883/3/6/TPS/C-X/GHMC/2007. Dated:12-05-2008. //SHOW CAUSE NOTICE// Sub: GHMC – circle – Health & Sanitation – Unauthorized conversion of the permitted usage / misuse of building – not providing for required parking – Non compliance with the provisions of the HMC Act – Bye laws / Regulations – (Direction of the Hon’ble High Court in Suo Moto Writ Petition No.15591 of 2006, dt.26.07.2007) – Show Cause Notice – Issued – Regarding. *** On verification it is noticed that you have been doing business Evulution (Craft) / trade and operations / eating establishment in premises bearing No.____________________ without holding an effective and valid trade license as required under Sec.521 of HMC Act, 1955 and without providing for required parking space under the Rules / Regulations / Bye laws under the Act. Following are the violations / deviations / unauthorized usage / misuse of building noticed in respect of the said premises: (i) Not having a valid trade license as required under Sec.521 of HMC Act, 1955. (ii) Not providing required parking place as required under Bye law No.10 of the HMC Bye laws for the Regulations of Eating Houses & Hotels, 1973, R/W. G.O.Ms.No.423, MA & UD (M-1) Department, dated 31.07.1998, and the Hyderabad and Secunderabad (Public Place of Halt / Place of Public Entertainment / amusement) Rules, 2005. (iii) Unauthorized conversion of permitted usage / misuse of building / premises contrary to the provisions under the HMC act, particularly Sec.441, 442 & 443 of the HMC Act, 1955. (iv) Procuring food stuffs from the insanitary kitchen and supply of unwholesome drinking water, not keeping the premises cleanly as required under the Bye laws in violation of Bye Law No.15, 16, 17, 18, 20, 21 and 28 of the HMC Bye Laws for the Regulation of Eating Houses or Hotels, 1973. Further the action contemplated under the Act / Rules / Byelaws / Regulations for violations (i) & (ii) above are the discontinuance of the use of the premises under Sec.622 r/w.Sec.521 of HMC Act, 1955. For violation (iii), the action contemplated under the Act / Rules / Byelaws / Regulations is discontinuance of the use of the premises and the consequential action under Sec.636 r/w. Sec.452 of the HMC Act, 1955. For violation of (iv), the action contemplated under the Act / Rules / Byelaws / Regulations is winding up / closure of the business / trade / operations of the Hotel or prohibition or consumption or sale of materials / prepared articles under Byelaw 36 of the HMC Bye laws for the Regulation of Eating Houses or Hotels, 1973. You are hereby called upon to comply with the requirements of the provisions of the HMC Act, 1955 and the Rules / Byelaws / Regulations framed thereunder and the bye laws, by providing required parking, and by obtaining a valid and proper trade license by paying the requisite fee within one week from the date of receipt of this notice. Or else, You are called to show cause as to why action should not be taken against you for the above violations within 1 week there after failing which appropriate orders will be passed as per law and consequential action will be initiated at your expense. You are also requested to produce copies of all the relevant documents including approved building plans in respect of the above premises along with your explanation.” 11. The petitioner issued reply to the show-cause notice on 16.05.2008. The explanation of the petitioner to the show-cause notice reads as hereunder: “Sir, Sub: Your notice under reference No.883/1/3/6/TPS/C/X/GHMC/2007, dt.12/5/2008. *** I invite your attention to your notice under reference number cited above in respect of the trade licence. In this connection kindly note that the requisite fee for the year 2008-09 has been remitted at the E. Seva counter on 21-4-2008 by cheque No.356566, dt.21/4/2008 drawn on Canara Bank, Somajiguda branch. Every year the requisite fee is remitted on or before 30th April. This is for your information.” 12. It is explicit from the show cause notice that various contraventions allegedly made by the petitioner in conducting the business have been pointed out. His explanation did not answer the queries raised in the show-cause notice. Learned counsel appearing for the petitioner contends that some of the lapses pointed out in the show-cause notice do not pertain to the business run by the petitioner in the premises. Such is the situation, the petitioner has to explain as to which of the lapses pointed out in the show-cause notice do not pertain to him. The petitioner having failed to give proper explanation, rushed to the Court invoking jurisdiction under Article 226 of the Constitution of India. 13. Since the petitioner is stated to be running the business in the premises since the year 1989, I deem it appropriate to give an opportunity to him to give further explanation to the show-cause notice and thereupon the respondents shall consider the said explanation and pass appropriate orders within a week thereof. 14. With the above direction, the writ petition is disposed of at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:30th June, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK}