Mohammed Masood Ali Khan vs The Kurnool Municipal ...
2023 Latest Caselaw 468 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               WRIT PETITION No.1785 of 2023

JUDGMENT:-

1.    Heard Sri Popuri Lakshmi Priyanvita, learned counsel for

the petitioners and Sri P.Anand Surya, learned counsel,

representing Sri Suresh Kumar Reddy Kalava, learned Standing

counsel for the respondent, Kurnool Municipal Corporation.

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

is being decided 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 a writ of Mandamus or any other writ, order or orders to declare the proceedings of the respondent in Letter No RVK/1016/2022/0001, dt.15.12.2022 whereby it revoked the building permit No.1016/1742/B/KURL/2022, dt.17.10.2022, without following the Judgment of the High Court of Andhra Pradesh, Hyderabad in W.P.No.23416/2002, dt.27.11.2012, and without affording an opportunity of hearing to the petitioners, as arbitrary, illegal and unsustainable and to set aside the same and to direct the respondent not to interfere with the construction of the building by the petitioners in accordance with permit No.1016/1742/B/KURL/2022, dt.17.10.2022, except by following due process of law, and pass such other order or

orders as this Hon'ble Court may deems fit and proper in the circumstances of the case."

4. The challenge in the writ petition is to the order dated

15.12.2022 by which the building permit granted to the

petitioners has been revoked.

5. The challenge is on the ground that the building

permission dated 17.10.2022 granted to the petitioners has

been revoked without affording any opportunity of hearing.

6. Learned counsel for the petitioners submits that any

notice, prior to the impugned order, was not issued. It is

incorrectly mentioned in the impugned order that the

petitioners did not file any reply. In fact, the petitioners had no

occasion to file any reply.

7. Sri P.Anand Surya, submits that though he has received

instructions, but he has no instructions, contrary to what has

been argued by the petitioners' counsel that any show cause

notice was not issued before passing the impugned order.

8. The impugned order dated 15.12.2022 itself mentions

about the show cause notice No.RVK/1016/2002/0001, dated

15.12.2022, from which it is evident that the date of the notice

as also the date of the order is the same 15.12.2022.

9. Learned counsel for the petitioners further submits that

the building permission has been revoked on the ground that

the application for construction of the building, is in the parking

space of the approved layout LP.No.19/1994. But, with respect

to the same parking space, in approved layout LP.No.19/1994,

the petitioners' father filed W.P.No.23416 of 2002, which was

decided on 27.11.2012 in his favour and the review petition filed

there against, by the Director of Town and Country Planning,

A.C. Guards, Hyderabad, was rejected. Consequently, the

matter, with respect to the ground of revocation has already

attained finality against the respondent.

10. The court is satisfied that the impugned order dated

15.12.2022 has been passed in violation of the principles of

natural justice. The show cause notice as mentioned in the

impugned order as also the order are of the same date and there

is no time gap to provide opportunity of hearing to the

petitioners against the action of revocation of building

permission.

11. Once the building permission was granted and it was

sought to be revoked, on any ground, the petitioners were

entitled for an opportunity of hearing with respect to such

ground.

12. For the aforesaid reason, the Court is not inclined to enter

into the merits of the ground of revocation of building

permission whether correct or not, in the light of the

submissions advanced with respect to W.P.No.23416 of 2002.

13. The impugned order suffers from violation of the

principles of natural justice. But, instead of setting aside the

same to meet the interest of justice the impugned order dated

15.12.2022 shall be treated as a show cause notice to the

petitioners.

14. This writ petition, therefore with the consent of the parties

counsels, is being disposed of finally in the following terms:-

a) The impugned order dated 15.12.2022 shall be

treated as a show cause notice for the proposed action of

revocation of petitioners' building permit on the ground as

stated therein to be the proposed ground of revocation.

b) The petitioners shall submit reply, within a period

of two (02) weeks from the date of receipt of copy of this order,

along with copy of this order, before the

respondent/Commissioner, Kurnool Municipal Corporation.

c) The plea based on the judgement in the

W.P.No.23416 of 2002 as also review petition as raised before

this Court may be taken by the petitioners in their reply before

the respondent.

d) The respondent shall thereafter pass appropriate

orders, in accordance with law, within a further period of three

(03) weeks, after taking into consideration the petitioners' reply

and the judgement of this Court dated 27.11.2012 in

W.P.No.23416 of 2002, if the plea to that effect is taken in the

reply.

e) No coercive action will be taken pursuant to the

impugned order dated 15.12.2022, till passing of the final order

by the respondent.

f) The petitioners shall also not raise any further

constructions and shall maintain status quo till passing of the

final order by the respondent.

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 27.01.2023

Note:-

Issue C.C by 31.01.2023 B/o:- SCS/MDP

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.1785 of 2023

Date: 27.01.2023

Scs/mdp