Reddy Tirumala Rao vs The State Of Ap
2022 Latest Caselaw 8260 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI


               WRIT PETITION No.35481 of 2022


JUDGMENT:-


1.    Heard Sri N.Sai Phanendra Kumar, learned counsel

representing Sri S.V.S.S.Siva Ram, learned counsel for the

petitioner and learned Government Pleader for Municipal

Administration      for    the      respondent     No.1        and         Sri

S.Lakshminarayana Reddy, learned Standing Counsel for the

respondent Nos.2 to 4.

2. With the consent of the parties counsels, the writ petition

is being disposed of finally at this stage.

3. This writ petition under Article 226 of the Constitution of

India has been filed for the following relief:-

"It is therefore prayed that this Hon‟ble Court may be pleased to issue an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in passing the conformation order No 862/1086/GVMC/UC/2022 dated 26.10.2022 without considering the explanation submitted by the petitioner dated 15. 10.2022 and directing him remove all the alleged deviation in relation to construction of his

residential building being constructed in his land admeasuring 65.47 square yards situated in Sy. No.87 at D.No.94385/B High School Road Jogavani Palem, Gajuwaka, Visakhapatnam within the GVMC limits Visakhapatnam as wholly illegal arbitrary motivated unfair contrary to principles of natural justice provisions of the Andhra Pradesh Municipal Corporations Act 1955 Andhra Pradesh Metropolitan Region and Urban Development Authorities Act 2016 besides being violative of the Article 14 and 300A of the Constitution of India and consequently set aside the same and pass."

4. Learned counsel for the petitioner submits that the

provisional order/show cause notice dated 04.10.2022 issued

by the Town Planning Officer, UCIMS 1st Notice Authority for

the Commissioner, the respondent No.4, was served to the

petitioner alleging certain deviations in construction of the

building by the petitioner to which the petitioner submitted

reply dated 15.10.2022, Ex.P3, with request to the authority to

withdraw the notice, through registered post acknowledgement

due and as per the Track Consignment Report, Ex.P3 (at Page

30), it was delivered on 17.10.2022 but in passing the

impugned order of confirmation dated 26.10.2022, Ex.P1, it is

mentioned that the petitioner did not submit reply to the show

cause notice and consequently the impugned order is violative

of the principles of the natural justice having been passed

without considering the petitioner's reply. He further submits

that the notice was given by the respondent No.4. The reply was

sent to the respondent No.4, but the confirmation order has

been passed by the respondent No.3, the Assistant City Planner

(Town Planning), both acting for the Commissioner.

5. Sri S. Lakshminarayana Reddy fairly submits that from

the confirmation order it is evident that the petitioner's reply

was not considered, as it is mentioned therein that the

petitioner did not submit any reply to the show cause notice

though he is not in a position to state if the reply was received

or not.

6. He further submits that Section 462 of the Municipal

Corporation Act, confers power on the Commissioner to order

under that Section and Section 119 of the Municipal

Corporation Act, provides that the Municipal authorities may

also be conferred, certain powers of the Commissioner to be

exercised by them and when such power is so conferred, those

Municipal Officers, shall be deemed to be included in the word

„Commissioner‟ and consequently the 4th respondent in issuing

the notice and the respondent No.3 in passing confirmation

order are also the „Commissioner‟ for the purposes of Section

462 and therefore in this respect there is no illegality.

7. Sri S. Lakshminarayana Reddy submits that the

respondent No.3 shall pass fresh orders after considering the

petitioner‟s reply dated 15.10.2022, within a period of four (04)

weeks from the date of receipt of copy of this order along with

the fresh copy of the petitioner‟s reply dated 15.10.2022.

8. He further submits that the petitioner was served with

also the order dated 03.08.2022 to stop the construction work

and in view of the provisional order dated 04.10.2022 there are

certain deviations in raising of the construction and

consequently till the final decision is taken, the petitioner shall

not raise any further construction.

9. Sri S. Lakshminarayana Reddy may be right in his

submission based on Section 462 read with Section 119 of the

Municipal Corporation Act, that the notice may be issued by one

Municipal Officer and the order may be passed by another

Municipal Officer upon whom respective powers are conferred

but the aspect which requires attention is that if the show cause

notice/provisional order, is given by one authority/notice

authority, different from the authority passing the confirmation

order, though both are acting as Commissioner, having been so

authorized under Section 119 of the Act, then the person to

whom show cause notice is given, how he would come to know,

before which authority he has to submit explanation/response.

Consequently, if the notice is given by one authority for the

Commissioner and the order is to be passed by another

authority for the Commissioner, then the notice must

specifically mention as to before which authority the person

concerned has to file his reply to the show cause notice, or if

the reply is submitted to the authority who has given the notice,

it shall be the duty of the notice authority to place the reply

before the authority competent to pass the order.

10. It is evident from the documents annexed with the

petition that the petitioner‟s reply dated 15.10.2022 sent

through registered post to the 4th respondent was delivered on

17.10.2022 but the confirmation order was passed by the 3rd

respondent mentioning that the reply was not filed.

Consequently, of the impugned order of confirmation has been

passed in violation of the principles of natural justice for not

considering the petitioner‟s reply.

11. In the result, the order of confirmation is quashed and the

writ petition is allowed with the following further directions:-

a) The petitioner shall submit the copy of this order along

with another copy of the reply dated 15.10.2022 before the 3rd

respondent within a period of two (02) weeks from the date of

receipt of copy of this order.

b) The respondent No.3, shall pass fresh orders after taking

into consideration the petitioner‟s reply dated 15.10.2022 within

a further period of four weeks, in accordance with law, after

affording opportunity of hearing to the petitioner.

c) Till the final order is passed by the respondent No.3, the

petitioner shall not raise any further construction. The work

stop order dated 03.08.2022, shall be operative till passing of

the final order.

d) If the petitioner does not comply with the direction (a), the

benefit of this order will not be available to him and in such a

case also the respondent No.3 shall pass fresh orders in

accordance with law.

12. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

13. Let a copy of this order be sent to the 1st respondent the

Principal Secretary to the Municipal Administration and Urban

Development Authority, Secretariat, Velagapudi, Amaravati, to

issue necessary directions at his end, to all the Municipal

Corporations in the State of Andhra Pradesh, in the light of

what has been observed in paragraph No.9 of this

judgment/order.

__________________________ RAVI NATH TILHARI,J Date: 02.11.2022 Note:

Issue CC in one week B/o.

SCS FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGG GGGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.35481 of 2022

Date: 02.11.2022

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