Nandella Radha vs The State Of Andhra Pradesh
2023 Latest Caselaw 27 AP

        HON'BLE SRI JUSTICE RAVI NATH TILHARI

             WRIT PETITION No.40773 OF 2022

JUDGMENT:-

1.     Heard Sri Venkateswara Rao Gudapati, learned counsel

for the petitioner and Sri M.Manohar Reddy appearing for the

Respondent     No.2.      Notice     has   been   accepted    by     the

Government Pleader for Municipal Administration and Urban

Development for Respondent No.1.

2. This petition under Article 226 of the Constitution of

India has been filed by the petitioner for the following reliefs:-

"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 confirmation order vide notice No. 45/1093/VZM/UC/2022 dated 23.09.2022 passed by the 2nd Respondent Authority without even considering the explanation dated 21.9.2022 submitted by the petitioner to the show cause notice No. 45/1093/VZM/UC/2022 dated

13. 09. 2022 and trying to demolish the petitioners entire building bearing Door No. 8-23-1 Plot-C admeasuring an extent of 123 sq yards situate in Sy. No. 69/2, Thotapalem, Vizianagaram, 1st Bit Vizianagaram Town and District as arbitrary illegal null and void and against the Norms of Public Policy and Principles of Natural Justice and contrary to the Judgment reported by this Hon'ble Court in 2022 (6) ALD page No.6 and to set aside the same and to pass necessary orders"

3. The petitioner has challenged the order of confirmation,

dated 23.09.2022 directing the demolition of building in

question, after confirming the Provisional Order dated

13.09.2022. The confirmation order stated that the petitioner

submitted no reply to the show cause notice.

4. Learned counsel for the petitioner submits that the

petitioner filed reply to the show cause notice on 13.09.2022.

5. Thus, the admitted fact is that though the petitioner

submitted reply/explanation, the same was not considered

and the confirmation order was passed stating that no reply

was filed.

6. Section 119 of the Municipal Corporation Act, 1955

provides that the Commissioner may delegate its functions to

other Municipal Officers. Section 679-E, provides for the

power of the State Government to issue necessary directions.

The G.O.M.S.No.49, dated 01.02.2018 was issued pursuant to

the power under Section 679-E of the Act,1955.

7. Learned standing counsel submits that as per

G.O.Ms.No.49, dated 01.02.2018, the Town Planner Building

Officer (TPBO)/Junior Planner Officer (JPO) and above cadres,

have been delegated the power of issuing Provisional Orders

and show cause notices for unauthorized constructions and

the constructions made in deviation of the approved plans,

and by the same G.O.M.s.No.49, the Assistant City Planner

(ACP) and the above cadres have been delegated the power to

issue confirmation order, demolition orders for unauthorized

construction and constructions made in a deviation to the

approved plans.

8. It is admitted case of both the sides that the Provisional

Order, dated 13.09.2022 was passed and the show cause

notice was issued to the petitioner by the Town Planner

Building Officer for the Commissioner and the order of

confirmation, dated 23.09.2022 was passed by the Deputy

City Planner (DCP) for the Commissioner, both the Municipal

Officers acting in exercise of delegated powers. The petitioner

submitted reply to the show cause notice directly to the

Commissioner.

9. From perusal of the show cause notice it is evident that

it is given by the Town Planner Building Officer, but, it does

not mention as to before which Authority the petitioner had to

submit the reply.

10. The show cause notice also does not mention as to who

is the authority to pass the final order. There is no mention

that the power of the Commissioner to pass confirmation

order has been delegated, vide G.O.Ms.No.49 to other

Municipal officer.

11. The show cause notice must clearly indicate before

which authority the reply is to be filed and which is the

authority to consider the reply and pass final order,

particularly in such cases, as is the present one, where the

show cause notice is issued by one authority and the order is

passed by another authority.

12. Consequently, if the petitioner submitted reply to the

Commissioner, who is the competent authority under the Act,

1955, to pass the order, no fault can be found with the

petitioner in such a circumstance.

13. This Court is of the view that the Commissioner ought

to have ensured that the petitioner's reply was placed before

the authority who had to pass the final order in terms of

G.O.M.S.No.49.

14. The order of confirmation has been passed without

considering the petitioner's reply. It is settled in law that an

order having civil consequences, must comply with the

requirements of the observance of the principles of natural

justice of affording opportunity of hearing and hearing where

such opportunity is being availed.

15. The impugned order has been passed in violation of the

principles of natural justice and the provisions of Section

452(2) of the Municipal Commissioner Act, and cannot be

sustained.

16. Accordingly, the impugned order of confirmation, dated

23.09.2022 is quashed, but with the following further

directions:-

1. The Commissioner shall forward the petitioner's reply/explanation, dated 26.11.2022 to the Authority who has to pass the order ie., the Deputy City Planner.

2) The petitioner shall also submit the copy of this order along with another copy of their reply/explanation, dated 26.11.2022, before the Deputy City Planner, within one week after receipt of copy of this order.

3) The Deputy City Planner, shall pass fresh orders in accordance with law, after considering, the petitioner's reply within a further period of (04) weeks.

4) No coercive action in respect of the subject property shall be taken till passing of the final order.

5) The petitioner shall also not raise any further construction nor shall create any third party right or interest with respect to the subject property, till passing of the final order.

17. Learned Standing Counsel for the Corporation submits

at this stage that the Provisional Order/show cause notice is

on prescribed format as issued by the 1st Respondent and no

change can be made therein by the Commissioner. He

submits that in the format it is not mentioned before which

authority reply is to be submitted and as such it cannot be

added by the Commissioner of his own in the show cause

notice.

18. In view of the aforesaid submission as advanced, the

court issues the following further directions, in the interest of

the noticee as also to ensure the observance with the

principles of natural justice, to avoid such situation as has

arisen in the present case, in future:

1) The 1st Respondent-the Principal Secretary, Municipal Administration and Urban Development, Department Secretariat Buildings, Amaravathi, shall issue necessary directions to ensure that the person to whom the show cause notice is issued is duly informed as to before which authority he has to submit reply/explanation and in giving effect to the said direction the show cause notice shall be suitably modified incorporating such provision/clause.

2) Till such time the Respondent No.1 issues necessary directions, as aforesaid, it is provided that the authority issuing the show cause notice, may be

the Commissioner or for the Commissioner, shall in the show cause notice, specifically mention, as to before which authority the reply is to be submitted and which authority has to pass the final order.

3) If for some reason, the reply is sent to the Commissioner, directly, the Commissioner shall ensure that the reply is placed before the authority concerned which has to consider the reply and pass the final order.

19. The Writ Petition stands partly allowed with the

aforesaid observations and directions.

20. Let a copy of this order be sent to the Respondent No.1,

Principal Secretary, Municipal Administration and Urban

Development Department, Secretariat Buildings, Velagapudi,

Amaravathi, for compliance.

21. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date:03.01.2023 PNS