IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 22794 of 2008 Between: 1 Siva Sivani Educational Institutions Society 8-87, Devar Yamjal (via) Hakimpet, Hyderabad - 500 078 Rep. by its General Secretary, Sudhir Kumar Sampathy S/o. late Sri S.P. Sampathy, aged about 47 years, 2 Siva Sivani Public School, 7-1-43, Kirlampudi Layout Visakhapatnam - 530 023, represented by its Principal, Smt.Usha S. Sampathy W/o. Sri Sudhir Kumar Sampathy, aged about 45 years. ..... PETITIONERS AND 1 Government of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration & Urban Development, H-Block, Secretariat Buildings, Hyderabad. 2 The Greater Visakhapatnam Municipal Corporation Tenneti Bhavan, Aseelmetta Junction, Visakhapatnam, rep. by its Commissioner. 3 Sri.M.Sudersana Swamy S/o.Late Sri M.J.Swamy R/o. Plot No.83, Door No. 7-17-14, Kirlampudi Layout, Visakhapatnam - 530 023. 4 Sri. M.N. Swamy S/o.Late Sri M.J.Swamy R/o.D.No. 10-27-17/1, Jagannatha Nilayam, Waltair Uplands, Visakhapatnam. 5 Sri. M.Gautama Swamy S/o.Late Sri M.J.Swamy R/o.D.No.3-6-164/3, Lakshminarayana Apartments Compound, Himayathnagar, Hyderabad. .....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 issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus, declaring i) the order of the 1st respondent as in Memo No. 10519/M1/2008-4, dated 17.10.2008, as arbitrary, illegal and whimsical and consequently set aside the same; ii) the action of the respondents in seeking to demolish the buildings bearing Nos. 7-1-42, 7-1-43 & 7-1-44 in Kirlampudi layout Visakhapatnam, in which the petitioners are running their school in the name and style of Siva Sivani Public School, on the basis of the technically unsound report of Gitam University, Visakhapatnam, as arbitrary, illegal, unjust, malafide and violative of the Fundamental and Constitutional Rights guaranteed under the Constitution of India violative of principles of natural justice as well as the provisions of the Hyderabad Municipal Corporation Act; and iii) issue a consequential direction to the respondents not to demolish the buildings in which the petitioners are running their school in the name and style of Siva Sivani Public School and pass such other order or orders. Counsel for the Petitioner: MR.S.SRINIVAS REDDY Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : ORDER: This writ petition is filed by the petitioners questioning the action of the respondents in seeking to demolish the building bearing Nos. 7-1-42, 7-1-43 & 7-1-44 in Kirlampudi layout,Visakhapatnam, wherein they are running their school in the name and style of ‘Siva Sivani Public School’ on the basis of the technical report of Gitam University, Visakhapatnam. Necessary facts leading to filing of this writ petition are that in the subject matter of property, the pre-primary and primary sections of the 2nd petitioner school are being run since 1993. According to the landlords- respondents 3 to 5 herein, the ground and 1st floors were constructed in the year 1968-69 and the 2nd floor was constructed in the year 1988-89. Initially the buildings were given on lease for a period of four years. Subsequently, the period of lease was being extended from time to time through registered lease deeds. The latest lease agreement came to an end by 31.3.2008. On 13.5.2008, the owners of the said buildings submitted a representation to the 2nd respondent herein – Greater Visakhapatnam Municipal Corporation stating that the subject matter of buildings are in a dilapidated condition and the same were leased out to the petitioners herein and hence requested to take necessary action apprehending danger to the lives of the students. Basing on the said representation, the town planning officials caused inspection of the building premises and opined that the structures are in a dilapidated condition and may collapse at any moment involving the lives of innocent students. However, the matter was referred to the Chief Engineer to cause an inspection of the building premises and to give a report. On 9.6.2008 the Chief Engineer submitted his report. In view of the observations and findings of the Chief Engineer, a notice under Section 456 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) was issued to the owners on 20.6.2008 directing them to vacate the premises and to remove/pull down the dangerous structures within a period of two months to avoid further complications in view of the structural report submitted by the Chief Engineer. A copy of the said notice was also served on the Vice- Principal of the petitioners school on 21.6.2008 for information and to comply with the notice. Aggrieved by the same, the petitioners herein, submitted a representation to the 1st respondent Government contending that they are the tenants of the said building and their lease expired in March, 2008 and they are entitled for extension of the lease for another term as per their initial agreement. Initially stay of the impugned order was granted by the 1st respondent and the 2nd respondent was directed to get the durability test conducted by the Civil Engineering faculty of Gitam University, Visakhaptnam to establish the soundness of the buildings. Basing on the same, the faculty of Gitam University also caused an inspection of the buildings and submitted their report on 26.7.2008 to the effect that the structures in question are structurally unsound. Basing on the said report, the 1st respondent- government vacated the stay earlier granted by it. The grievance of the petitioners is that the same was being done without any notice to them and questioning the same, the present writ petition is filed. This court while admitting the writ petition on 28.1.2009 granted interim directions. Seeking vacation of the said orders, WVMP No.3900 of 2008 is filed by the owners-respondents 3 to 5. Sri S.R.Ashok, learned senior counsel appearing for the writ petitioners contends that as per Section 459 of the Hyderabad Municipal Corporation Act, 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 stating any objection and adducing evidence, if any and after being satisfied that the objection which is raised is invalid or insufficient take appropriate action. The learned senior counsel contends that the words ‘owner or occupier’ should be read as if the ‘owner and the occupier’ because taking undue advantage of the situation, the owners may misuse the provision to get rid of a tenant who is not willing to vacate the premises by avoiding a notice to the tenant at the appropriate time and in the instant case also, without issuing any notice to the petitioners, who are the tenants, behind their back, the so called inspections have been done and hence, the same are not valid. At this stage, Sri C.Prakash Reddy, learned senior counsel appearing for respondents 3 to 5, who are owners of the buildings in question, submitted that they have no objection if a notice is issued to the petitioners also under Section 456 of the Act and an opportunity is being given to them to respond to the said notice. In view of the stand taken by respondents 3 to 5, leaving the question of law whether the notice under Section 456 and 459 of the Act has to be issued both to the occupier and the owner or not to be decided in an appropriate case, the writ petition is allowed setting aside the impugned order and the 2nd respondent is directed to issue a notice to the petitioners as well as to the owners viz., respondents 3 to 5 under Section 456 of the Act to substantiate their stands and after perusing the material placed on record by both the sides, appropriate decision may be taken in accordance with law as expeditiously as possible, preferably within a period of four weeks from the date of receiving the reply to the notices. N.V.RAMANA,J DT.3.3.2009 msv