THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.32190 OF 2011 ORDER: This Writ Petition is filed seeking to declare Notice No.3396/TPS/ACP-10(W-6 & 7)/2011, under Sections 452 (1) and 461 (1) of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, “the Act”), dated 22.11.2011, issued by respondent No.2 threatening to seal the property of the petitioner bearing flat No.G-8 in premises No.7-2-1782 situated at Czech Colony, Sanathnagar, Hyderabad, as illegal and arbitrary. 2. The petitioner purchased flat bearing No.G-8 in premises No.7-2- 1782 situated at Czech Colony, Sanathnagar, Hyderabad, under a registered sale deed dated 09.07.2010. The permit for the said flat was obtained for residential purpose. The petitioner is using the said flat as a company guest house-cum-residential purpose. A complaint was lodged by one of the other flat owners association alleging that the flats bearing Nos.G-6 and G-8 in the said premises are put to commercial use. Therefore, respondent No.2 issued the impugned notice alleging that flat Nos.G-6 and G-8 are being used for commercial purpose, and the petitioner was asked to show-cause within seven days as to why flat No.G-8 should not be sealed. The petitioner submitted his explanation on 02.12.2011. The petitioner apprehending that the respondent corporation would seal the flat in question without considering his explanation filed the present Writ Petition. 3. Learned Counsel for the petitioner contended that Sections 452 (1) and 461 (1) of the Act have no application inasmuch as the flat in question is not a new construction or re-construction of the building contrary to the sanctioned plan and hence, he prays to set aside the impugned notice. 4. On the other hand, learned standing counsel for the respondents contended that the sanctioned plan has been given for the purpose of residential flats; that the petitioner is said to have converted the flat in question into a commercial flat; that therefore, the impugned notice can be treated as a notice issued under Sections 441 and 596 of the Act; that the violation alleged against the petitioner is violation of the zonal regulations; that therefore, the Commissioner has to take appropriate decision and hence, she prays to dismiss the Writ Petition. 5. Section 452 (1) of the Act reads as follows: “452. Proceedings to be taken in respect of building or work commenced contrary to Act or bye-laws:- (1) If the erection of any building or the execution of any such work as is described in Section 433 is commenced or carried out contrary to the provisions of this Act or bye-laws made thereunder, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under Section 426 shall – (a) by written notice, require the person who is erecting or re-erecting such building or executing such work or has erected or re-erected such building or executed such work, on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf, to show sufficient cause why such building or work shall not be removed, altered or pulled down.” 6. Section 461 (1) of the Act reads as follows: “461. Powers of Commissioner to direct removal of person directing unlawful work:- (1) If the Commissioner is satisfied that the erection or re- erection of any building or the execution of any such work as is described in Section 433 has been unlawfully commenced or is being unlawfully carried on upon any premises he may, by written notice, require the person directing or carrying on such erection or re-erection or execution of work to stop the same forthwith.” 7. A perusal of Section 452 (1) of the Act makes it clear that it applies to constructions, which are made contrary to Section 433 of the Act. Similarly, Section 461 (1) of the Act would be applicable in case of erection or re-erection of any building without prior permission of the Commissioner, which is a penal provision. In this case, as seen from the impugned notice, the permission was obtained for construction of residential flats i.e., cellar for parking, ground and four upper floors for eight residential flats in each floor, vide permit No.139/53 dated 31.01.2008. The allegation is that since the petitioner converted residential flat No.G-8 into a commercial flat i.e., office, he was called upon to give an explanation. So, this notice can be traceable to Section 441 of the Act for which, it seems, the petitioner had already given his explanation. According to the learned counsel for the petitioner the conversion of a residential flat into a guest house cannot change of residential flat into a commercial one and so, the impugned notice is liable to be quashed. But the said aspect i.e., whether the conversion of a residential flat into an office would amount to a commercial one or whether it amounts to alteration for which the permission was granted under Section 441 of the Act, is required to be decided by the Commissioner in accordance with law. Therefore, the impugned Notice No.3396/TPS/ACP – 10 (W-6 & 7)/2011, dated 22.11.2011, can be treated as a notice issued under Sections 441 and 596 of the Act. In view of the fact that the explanation had already been given by the petitioner, the same shall be considered by the respondents in accordance with law and appropriate decision has to be taken by them. 8. Accordingly, the Writ Petition is disposed of directing the respondents to take appropriate decision on the explanation of the petitioner in accordance with law within a period of four weeks from the date of receipt of a copy of this order. There shall be no order as to costs. _______________ K.C.BHANU, J December 08, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Dated: 08.12.2011 PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.32190 OF 2011 Between: Devalla Sridhar Reddy ..... PETITIONER AND The Greater Hyderabad Municipal Corporation and another ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.32190 OF 2011 December 08, 2011 MD