IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 3023 of 2003 Between: M. Venkateswara Rao S/o Krishnaiah R/o Swarnalok Complex, Eluru Road, Governorpet, Vijayawada ..... PETITIONER AND The Commissioner Municipal Corporation of Vijayawada Vijayawada .....RESPONDENT 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 an appropriate writ, order or direction more particularly one in the nature of "Writ of Mandamus" declaring the Proceeding Rc.G5.BRSA No.2162/98 dt: 8-2-2003 issued by the respondent as illegal, arbitrary and void. Counsel for the Petitioner: MR.V.VENKATARAMANA Counsel for the Respondent.: SMT.G.JHANSI, STANDING COUNSEL. The Court made the following : ORDER: This writ petition has been filed by M.Venkateswara Rao assailing the action of the respondent in contemplating to demolish the generator room and H.T.Power Supply Room situated in Swarnalok Complex, Elouru Road, Governopet, Vijayawada. 2. Petitioner is the Managing Partner of ‘Sri Lakshmi Talkies’. It appears three mini theatres were constructed in Swarnalok Complex, Eluru Road, Governorpet, Vijayawada. In cellar, six small rooms including booking counter, and a generator room and H.T. power supply room were put up. A notice under Sections 450 and 452 of the Hyderabad Municipal Corporations Act, 1955 (for short, ‘the Act’) came to be issued to the petitioner directing him to explain as to why plans approved on 04.12.2001 vide G5 BRSA No.2162/98 to the extent of constructions made in the parking place in cellar floor and lower ground floor cannot be cancelled. On the premise that the petitioner failed to submit explanation, the respondent proceeded to pass final orders dated 08.02.2003 under Section 636 of the Act. The said order is under challenge in this writ petition. For better understanding of the grievance of the petitioner, I deem it appropriate to refer para.5 of the affidavit filed in support of the writ petition, which reads as hereunder: “I beg to submit that I was running my theatres without troubling anybody and this complex situated on the main road which is a commercial area and on the same road there are other theatres also. Recently as this theatre is on the Eluru Road, a road widening was effected and myself voluntarily demolished the road side effected portion in the interest of the public. While things stood so the Commissioner issued a proceedings under Sec.450 and 452 dt.7.2.2003 that a complaint was received from the public and basing on which the shop rooms and booking counters are contrary to G.O.Ms.No.419 MA, dt.30.7.1998 why cant it be demolished which was served on 8.2.2003. Immediately on 8.2.2003 we met the Commissioner and showed the building plan as well as the Proceedings dt.4.12.2001 regularising the constructions made in the complex including the 3 small rooms in the cellar. The Commissioner has asked us to remove the booking office in the cellar floor and he will not interfere with the generator room basing on the said instructions we required to grant one week time to demolish the booking office in the cellar portion which he accepted. Surprisingly on 9.2.2003 the Respondent Commissioner issued Proceedings G5 BRSANo.2162/1998 dt.8.2.2003 cancelling the Original proceedings BRSA No.2162/98, dt.4.12.2001 regularising the unauthorized const5ruction made in the complex including the cellar and also directed to demolish the structures within 24 hours. Immediately, I approached the respondent brought to his notice about his assurance made on 8.2.2003, the Commissioner informed first demolish the booking offices excluding the generator room and HT Power supply room. On 10.2.2003 I myself removed all the booking offices in the cellar except the generator room. This I have informed the Commissioner stating that I have removed the booking offices in the cellar and requested not to take further action even though these constructions were regularized on 4.12.2001. The Corporation officials also did not take any action but strongly on 17.2.2003 night about 9 PM the town planning officials informed that they will demolish the generator room in the cellar tomorrow i.e. 18.2.2003. I tried to approach the Commissioner but I was told that he was out of station then I requested the city planner not to demolish the generator room as it will effected entire complex since there is frequent power failure in Vijayawada.” 3. Rule Nisi came to be issued on 18.02.2003. An interim stay of demolition of generator room and H.T. power supply room also came to be issued on the even date vide WPMP No.3961 of 2003. 4. The respondent entered appearance and filed counter-affidavit contending that the petitioner constructed certain unauthorized constructions in the cellar of the complex, which is situated in a very busy commercial area. It is further stated in the counter-affidavit that the petitioner willfully violated the rules and erected generator room and installed electric transformer in parking area by covering an extent of 144 sq. mts approximately and that the petitioner is utilizing the cellar also for business purpose leaving the public coming to the shopping complex to their fate. Para.5 of the counter-affidavit needs to be noted and it reads as hereunder: “5. In reply to paragraph – 5, it is to submit that though the petitioner was allowed to have only 3 rooms for maintaining the stores of complex in an extent of 33.51 Mts. and for generator to an extent of 51.93 Mts. and for keeping the electrical stores of complex in an extent of 24 Sq. Mts. approximately. These are the structures allowed and regularized in B.R.S. and all other structures have to be removed and they have not covered under the proceedings for regularizing the unauthorized construction. The same has been explained in person to the petitioner when he approached the Commissioner of the defendant Corporation on 8-2-2003 consequent of the issue of notice under sections 450 and 452 on 7-2-2003. On his request he was given ample time for removing the structures of his own and even though he was given ample time, he has not removed the structures and restored the conditions as approved in the B.R.S. scheme vide proceedings Rc.G5-BRSA No.2162/98, Dt.4- 12-01. Therefore, he was finally warned off to remove the structures as agreed on 9-2-2003. But he has not cared for the instructions. Since there is no compliance on 18-2-2002, the staff of the Corporation went to the petitioner’s property. On seeing the staff, the petitioner himself started demolition and slowly removed the structures of booking counters, Que railings, watch man room and a godown etc and in the meantime approached the Hon’ble Court and got stay orders for the demolition. On 18th February evening, they have served the stay orders of Hon’ble Court granted in W.P.M.P.No.3962/2002 in W.P.No.3023/2003.” 5. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the Respondent. 6. Learned counsel appearing for the petitioner submits that the notice dated 07.02.2003 came to be issued directing the petitioner to remove the unauthorized constructions within 24 hours and the time allowed to the petitioner to submit explanation is too short and on that simple ground only the writ petition deserves to be allowed. 7. Learned Standing Counsel appearing for the respondent submits that the petitioner constructed booking office in the cellar portion which is contrary to the approved plan and therefore, the respondent proceeded to cancel the permission granted in proceedings in Rc.G5-BRSA No.2162/98, dated 04.12.2001. 8. I have gone through the notice issued to the petitioner under Sections 450 and 452 of the Act. It is dated 07.02.2003. Final orders came to be passed on 08.02.2003. The time allowed to the petitioner is too short to make up his mind and submit explanation. On this short ground, the writ petition is disposed of reserving the liberty to the petitioner submit his explanation to the notice dt.07.02.2003 issued under Sections 450 and 452 of the Act. 9. Learned standing Counsel appearing for the respondent submits that except generator room, all other constructions have been removed permanently and therefore, the time to be granted in the writ petition is only may be in respect of generator room. 10. In that view of the matter, the writ petition is disposed of setting aside the proceedings dated 08.02.2003 in respect of the generator room in the cellar portion and reserving liberty to the petitioner to submit explanation to the notice dated 07.02.2003 issued under Sections 450 and 452 of the Act with regard to the generator room, installed in the cellar portion within four weeks from today and thereupon the respondents have to pass final orders afresh. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:30th June, 2009. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK}