HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.6386 OF 2010 Date: 23.03.2010 Between: Siva Sivani Educational Institutions Society rep., by its General Secretary, Sri Sudhir Kumar Sampath, Visakhapatnam and another. … Petitioner And Greater Visakhapatnam Municipal Corporation rep., by its Commissioner, Tenneti Bhavan, Asilmet, Visakhapatnam and five others. … Respondents. HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.6386 OF 2010 ORDER: Heard Sri S.R.Ashok, Learned Senior Counsel appearing on behalf of the petitioners and Sri N.Ranga Reddy, Learned Standing Counsel for the first respondent and, at their request, the Writ Petition is being disposed of at the stage of admission. The relief sought for in this writ petition is to declare the notice dated 23.02.2010, issued under Section 456 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’), calling upon the petitioners to vacate the premises, wherein they are running a school, on the ground that the said building is unsafe, as arbitrary, illegal, mala fide and in violation of principles of natural justice. The present case has a chequered history. It is, however, wholly unnecessary to note the events preceding the order of this Court in W.P.No.22794 of 2008. The petitioners had hitherto invoked this Court’s jurisdiction, in W.P.NO.22794 of 2008, questioning the memo dated 17.10.2008 whereby the building, under occupation of the petitioners, was declared unsafe on grounds more or less similar to those raised in the present writ petition. This Court, by order dated 03.03.2009, set aside the impugned memo dated 17.10.2008 and directed the first respondent to issue notice to the petitioners as well as to the owners of the building under Section 456 of the Act to substantiate their stands and, after perusing the material placed on record, take an appropriate decision in accordance with law, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of the order. Thereafter the first respondent herein issued the impugned notice dated 23.02.2010, under Section 456 of the Act, calling upon the petitioners to vacate the premises on the ground that the building was in a dilapidated condition and was likely to endanger the lives of children studying in the school being run in the said premises. The impugned memo also notes that separate action would be initiated soon after receipt of the report from the JNTU, Kakinada with regards removal of the structures. The impugned notice is questioned in this writ petition on several grounds including that the first respondent had placed reliance on certain reports, referred to in the impugned notice, which were not made available to the petitioners thereby denying them an opportunity of submitting their objections to the said reports and that the action of the first respondent was mala fide in as much as the fiction, of the building being in a dilapidated condition, was created at the behest of the landlords only to arm- twist the petitioners into vacating the premises. It is wholly unnecessary for this Court to examine the question of malice as the degree of proof required to establish malice is of a very high order and none of the persons against whom malice is vaguely alleged are made parties eo-nominee in the writ petition. Sri S.R. Ashok, Learned Senior Counsel appearing on behalf of the petitioners, would draw attention of this Court to the several structural stability certificates given by Professors of Structural Engineering, (either retired or presently working in the Andhra University), in support of his submission that the building in question was structurally sound and the respondents had created the bogey of its being dilapidated for extraneous reasons. Learned Senior Counsel would submit that the first respondent, without examining the contents of any of these reports, had relied on a report of the Chief Engineer obtained behind the petitioners back and, without the petitioners being put on notice, had issued the impugned notice asking them to vacate the building in question. Learned Senior Counsel would contend that, since the petitioners are running a school in a building which is structurally sound, the notice impugned in this writ petition asking them to vacate the premises has civil consequences necessitating their being afforded a reasonable opportunity of being heard before such an order is passed. Section 456 (1) of the Greater Hyderabad Municipal Corporation Act, 1955, as extended to the Visakhapatnam Municipal Corporation, provides that, if at any time it appears to the Commissioner that any structure is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying such a structure, the Commissioner may, by written notice, require the owner or occupier of such structure either to pull down or to secure or to remove or to repair such structure, and to prevent all cause of danger therefrom. Section 456 (2) empowers the Commissioner, if he thinks fit, to require the owner or occupier, by the said notice, to forthwith pull down the structure. Section 456 (3) provides that, if it appears to the Commissioner that the danger from a structure which is ruinous or is about to fall is imminent, he may, before giving notice as aforesaid or before the period of notice expires, fence off, take down, secure or repair the said structure or take such steps or cause such work to be executed as may be required to arrest the danger. Section 459 of the Act provides for an opportunity for stating objections and, thereunder, the Commissioner is required to issue the notice under Section 456 of the Act after giving the owner or occupier a reasonable opportunity of stating any objections and adducing evidence, if any, and, after being satisfied that the objection which is raised is invalid or is insufficient, to take necessary action. While the satisfaction as to whether the building is in a ruinous condition necessitating its being pull down, without recourse to any other steps being taken to secure or repair such structure, is that of the Commissioner, the opinion which the Commissioner is required to form in this regard must only be on the basis of the material on record. The impugned memo does not record the Commissioner’s satisfaction that the building is in such a ruinous condition that it cannot, otherwise, be secured or repaired and that it must necessarily be pulled down. Further Section 459 of the Act not only requires the occupier of being given an opportunity of stating his objections to the notice but also of adducing evidence that the building is not in a ruinous condition or that it can otherwise be secured or repaired. Such an opportunity is required to be provided before the Commissioner forms the requisite opinion under Section 456 (1) of the Act. The case of the petitioners, in short, is that they were denied the opportunity of being heard. It is evident from the impugned notice that the several reports, which the petitioners had placed before the first respondent, were not taken into consideration. The impugned notice does not even disclose that the documents referred to therein were made available to the petitioners. The impugned memo has been issued without complying with the requirements of Section 459 of the Act. I consider it appropriate, therefore, to set aside the impugned notice for non-compliance of the conditions stipulated in Section 459 of the Act and for violation of principles of natural justice. The first respondent is directed to make available copies of all the orders/proceedings referred to in the said notice within three days from today and permit the petitioners to submit their objections within three days of receipt of these documents. The first respondent shall give the petitioners an opportunity of being orally heard, (including, if they so choose, to let in evidence), consider the objections filed and the evidence on record and, thereafter, pass a reasoned order, in accordance with law, within a period of one week from the date of submission of the objections or within such further time as he considers reasonable. As directed by this Court, in its order in W.P. No.22794 of 2008 dated 03.03.2009, a similar opportunity of being heard shall also be afforded to the owners of the building in question. The Writ Petition is allowed. However, in the circumstances, without costs. RAMESH RANGANATHAN, J Date:23.03.2010 Note:Furnish copy within three days B/o usd/asp