Ch Padma Raju, vs The State Of Andhra Pradesh
2022 Latest Caselaw 7042 AP

                  HIGH COURT OF ANDHRA PRADESH

                               ****

WRIT PETITION No.29895 of 2021

Between:

Ch. Padma Raju .....Petitioner AND

State of Andhra Pradesh, rep.by its Principal Secretary, Municipal Administration Department, Secretariat, Amaravathi, Guntur District and others .....Respondents

DATE OF JUDGMENT PRONOUNCED: 15.09.2022

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals

3. Whether Your Lordships wish to see the Yes/No fair copy of the Judgment?

_________________________ RAVI NATH TILHARI, J

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

+ WRIT PETITION No.29895 of 2021

% 15.09.2022

# Ch. Padma Raju .....Petitioner AND

$ State of Andhra Pradesh, rep.by its Principal Secretary, Municipal Administration Department, Secretariat, Amaravathi, Guntur District and others .....Respondents

! Counsel for the Petitioner: Sri Challa Ajay Kumar

^ Counsel for the respondent No.1: G.P for Municipal Administration and Urban Development Authority Counsel for R 2 to R 4 : Sri S. Lakshminarayana Reddy, SC for the Municipalities.

Counsel for 5 respondent th : Sri Ch. Dhanunjaya

< Gist :

> Head Note:

? Cases Referred:

1.W.P.No.4816 of 1968

W.P.No.14772 of 2006

3.AIR 1969 SC 556

(2006) 5 SCC 255

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.29895 of 2021

JUDGMENT:-

1. Heard Sri Challa Ajay Kumar, learned counsel for the petitioner

and learned Assistant Government Pleader for Municipal

Administration for the respondent No.1, Sri S.Lakshminarayana

Reddy, learned Standing Counsel for the respondent Nos.2 to 4 and

Sri Ch.Dhanunjaya, learned counsel for the respondent No.5.

2. 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 a writ, or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents issuing the Building Permit Order vide Permit No.1086/3494/B/Z4/KAD/2018 on dated 10.11.2020 as illegal, arbitrary, in violation of principles of Natural Justice and consequently direct the respondents to cancel the Building Permit Order vide Permit No.1086/3494/B/Z4/KAD/2018 on dated 10.11.2020 and be pleased to pass such other order or orders as may deem fit and proper in the circumstances of the case."

3. Learned counsel for the petitioner submits that O.S.No.280 of

2007 filed by the petitioner's deceased father against the defendants

therein including the unofficial respondent No.5 and some official

respondents, is pending on the file of XI Additional District Judge at

Visakhapatnam in which after the death of the petitioner's father, the

petitioner has filed an application for substitution. He further submits

that the material facts were not brought to the notice of the 2 nd

respondent consequently the grant of the building permission in

favour of the 5th respondent has affected adversely the petitioner's

right in the property.

4. As is evident from the prayer the petitioner is seeking the

cancellation of the building permission

No.1086/3494/B/Z4/KAD/2018 on dated 10.11.2020 granted in

favour of unofficial respondent No.5, by the respondent No.2.

5. Section 450 of the Greater Hyderabad Municipal Corporation

Act, 1955, in short the Act read with Andhra Pradesh Municipal

Corporation Act, 1994 in short the Act, 1994, provides for remedy to

an aggrieved person from grant of building permission, to approach

the Commissioner for cancellation of permission.

6. Section 450 of the A.P. Municipal Corporation Act, 1955 reads as

under:

"If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 428 or 433 in the further information if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission."

7. A perusal of Section 450 makes it evident that, if at any time

after permission for building work is granted the Commissioner on

being satisfied that such permission was granted in consequence of

any material misrepresentation or fraudulent statement contained in

the notice given or information furnished under Sections 428 or 433 in

the further information, if any, furnished, he may cancel such

permission and any work done thereunder shall be deemed to have

been done without his permission.

8. In Manohar Rao Kulkarni vs. Commissioner, Hyderabad

Municipal Corporation (Town Planning Section)1, this Court held

that the Commissioner is given the power to cancel the permission

granted in the circumstances mentioned in Section 450 of the Act. In

B. Laxmi W/o. B. Adi Reddy vs. Municipal Corporation,

Karimnagar2, also this Court held that Section 450 of the Act deals

with power of Commissioner to cancel permission on the ground of

material representation by the applicant. It was further held that

whether the power is to be exercised as specified in Section 450 of the

Act or not in a particular set of facts, it is a matter to be examined by

the concerned Commissioner.

9. This Court is also of the considered view that once the power of

cancellation of building permission granted, is vested in the

Commissioner under the specified circumstances under Section 450 of

the Act, it will be open for an aggrieved person, feeling aggrieved from

grant of building permission in favour of other person, to approach the

W.P.No.4816 of 1968

W.P.No.14772 of 2006

Commissioner to invoke its power of cancellation, by satisfying the

Commissioner that the grant of permission was in consequence of any

material misrepresentation or fraudulent statement in the notice

given or information furnished under Section 428 or in furnishing

further information if any under Section 433 of the Act.

10. This Court is of the further considered view that the proceedings

under Section 450 of the Act for cancellation of the building permit

already granted, may result in passing adverse order against the

person in whose favour permission is granted and therefore the

Municipal Corporation has to observe the principles of natural justice

of affording opportunity of hearing to the person concerned against the

proposed cancellation proceedings. The person who has applied for

cancellation, if not the Commissioner himself initiating the proceeding

under Section 450 of the Act, suo moto, has also to be given

opportunity of hearing in support of prayer for cancellation.

11. The petitioner, has the statutory remedy under Section 450 of

the Act with respect to the grievance as raised in the writ petition.

12. In Baburam Prakash Chandra Maheshwari v. Antarim Zila

Parishad3, the Hon'ble Apex Court held that it is well established

proposition of law that when an alternative and equally efficacious

remedy is open to a litigant he should be required to pursue that

remedy and not to invoke the special jurisdiction of the High Court to

issue a prerogative writ. The Hon'ble Apex Court held that the

AIR 1969 SC 556

existence of a statutory remedy does not effect the jurisdiction of the

High Court to issue a writ but the existence of an adequate legal

remedy is a thing to be taken into consideration in the matter of

granting writs and where such a remedy exists it will be a sound

exercise of discretion to refuse to interfere in a writ petition unless

there are good grounds therefore.

13. In this case, this court does not find any good ground to

entertain the writ petition, particularly when the facts not brought to

the notice of the 2nd respondent by the 5th respondent as mentioned in

the writ petition are material facts or not for cancellation of the

permission granted, require investigation at the first instance by the

Commissioner.

14. In Sanjay Sitaram Khemka vs. State of Maharashtra and

others4, the Hon'ble Apex Court held that a matter involving a great

deal of disputed questions of fact cannot be dealt with by the High

Court in exercise of its power of judicial review. The petitioner in such

matters is required to pursue specific remedies provided there for in

law.

15. This Court is therefore not inclined to invoke its writ jurisdiction

at this stage.

16. The writ petition is dismissed only on the ground of statutory

alternative remedy, however, leaving it open to the petitioner to avail

the remedy under Section 450 of the Act, if so advised, and if such an

(2006) 5 SCC 255

application is filed by the petitioner within a period of three weeks

from receipt of copy of this order, the same shall be considered and

appropriate order shall be passed by the 2nd respondent, after

affording opportunity of hearing to the petitioner as also to the

unofficial respondent No.5, in accordance with law, within a period of

three months from the date of filing of the application by the petitioner

as aforesaid.

No order as to costs.

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

also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 15.09.2022 Note:

Issue CC in one week.

LR copy to be marked.

B/o.

SCS

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.29895 of 2021

Date: 15.09.2022

Scs