Andhra Pradesh High Court - Amravati

Y. Nagendra Prasad Reddy, vs The State Of A.P. on 7 February, 2024

 IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
              WRIT PETITION No.22190 OF 2012
Between:
Y.Nagendra Prasad Reddy, S/o Chenchu
Ranga Reddy, Aged: 50 years, Occ:
Business, R/o 3F, Balaji Menor Apartments,
Magunta Lay Out, Nellore-3.
                                                   ... Petitioner
And

The State of Andhra Pradesh, Rep. By its
Principal      Secretary,      Municipal
Administration Department, Secretariat,
Hyderabad and two others.
                                                  ... Respondents


Counsel for the petitioner            : Sri K.Sai Sri Harsha
Counsel for respondent No.1           : GP for Municipal
                                        Administration
Counsel for respondent No.2           : Sri K.Suresh Kumar Reddy,
                                        Standing Counsel

Counsel for respondent No.3           :   Sri P.Ganga Rami Reddy

                              ORDER

Assailing the speaking order vide U.C.No.3/2012/BO-IV,

dated 02.07.2012 issued by the Commissioner of respondent

No.2, the above writ petition is filed.

SRS, J

2. Heard Sri K.V.Bhanu Prasad, learned Senior Counsel

assisted by Sri K.Sai Sri Harsha, learned counsel for the

petitioner and Sri P.Anand Surya, learned counsel representing

Sri K.Suresh Kumar Reddy, learned Standing Counsel appearing

for respondent No.2 and Sri P.Ganga Rami Reddy, learned

counsel appearing for respondent No.3.

3. During hearing, learned Senior Counsel would submit that

petitioner made application seeking regularization of

unauthorized structure and setbacks and paid the requisite fee

and the same is pending consideration. Sri P.Anand Surya,

learned counsel appearing for respondent No.2, on instructions

would submit that application is pending and the authority will

pass appropriate orders.

4. In respect of speaking order impugned in the writ petition,

learned senior counsel would submit that encroachments said to

have been made in Government land is not mentioned in the

show-cause notice. He also would contend that measurements

of setback were not mentioned in the show-cause notice.

5. Sri P.Ganga Rami Reddy, learned counsel appearing for

respondent No.3 and learned Standing Counsel would submit

SRS, J

that in the show-cause notice, it was mentioned that building

was constructed without leaving any mandatory setbacks in

violation of building Rules and layout conditions of master plan

during regulations.

6. Sri P.Ganga Rami Reddy, learned counsel further would

submit that in view of the setbacks pointed out in the show-

cause notice, the petitioner is not entitled for regularization of

the building. He also would submit that after according

permission to construct apartment in 266.22 ankanams vide

proceedings in B.A.No.101/97, the builder sold away 19.80

ankanams, out of 266.22 ankanams to one P.Radhakrishna

Reddy, who, inturn sold 11.11 ankanams, out of 19.80

ankanams.

7. Learned counsel for the petitioner would submit that in

the show-cause notice, all these alleged violations are not

mentioned.

8. It is settled law that show-cause notice should contain all

the particulars, enabling the person to submit explanation.

Though, it was mentioned in the show-cause notice that G+3

RCC building was constructed in violation of building rules and

SRS, J

layout conditions of master plan and without leaving mandatory

site, in the opinion of this Court, all the particulars qua the

deviations were not mentioned enabling the petitioner to submit

explanation. Apart from that, encroachments said to have been

made by the petitioner as pointed out in the speaking order,

were not mentioned in the show-cause notice.

9. In Janardan Jaishankar Jokharkar v. State of

Gujarat1, the Gujarat High Court observed as under:

"15. On perusal of the record, it is noticed that in the notice dated 12.12.1988, pursuant to which the impugned order has been passed, no allegation about the construction touching the State Highway and/or insufficient margin was mentioned. In absence of any such reference in the notice, the impugned order passed by the Secretary (Appeals) turns into an order beyond the scope of the notice. The authority passing an order of adjudication cannot take into account the grounds or circumstances which are not alleged in the notice and/or in respect of which the petitioner is not put to notice. Otherwise, the very purpose of issuing notice and inviting explanation is frustrated, and going beyond the purview of the Show Cause Notice or taking into account aspects not enumerated in the Show Cause Notice and making them basis for the order also amount

2008 (2) GLH 717

SRS, J

to violation of principles of natural justice. When an authority passes an order which is based on grounds or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing and becomes violative of audi alteram partem rule. In present case, it is obvious that the grounds of insufficient margin and/or the building touching the State Highway are not mentioned in the Show Cause Notice. Not only this, but even the order of the original and competent authority also does not contain any such finding of fact at his stage in the order dated 11.2.1989. In this view of the matter, it was not permissible for the Secretary (Appeals) to take into consideration aspects which did not form part of the Show Cause Notice and/or which were not reflected in the original order impugned before that authority. The impugned order, on this ground, alone deserves to be set aside."

17. In Kesarbhai Bhagwanbhai v. State of Gujarat, reported in 1997 (3) GLR 2142, a similar view has been taken by this Court.

18. In Anand D. Lodariya Salt & Storage Pvt. Ltd. v. State of Gujarat Through Special Secretary through Special Secretary - Special Civil Application No. 9757 of 2012, decided on 28.12.2012., after considering the above judgments, this Court has held as below:

"19. The principles of law enunciated in the above-quoted judgments would squarely apply to the facts of the present case. By passing the impugned

SRS, J

order that is undoubtedly beyond the scope of the Show Cause Notice and directing the vesting of the land for breach of conditions, other than condition No. 6, for which the Show Cause Notice was issued, there is a flagrant violation of the principles of natural justice. The rule of Audi Alteram Partem that enjoins an adequate opportunity of hearing, has been violated by the respondents as the petitioners have not been granted an opportunity of hearing for the alleged breach of the other conditions, not mentioned in the Show Cause Notice. The findings of respondents Nos. 2 and 1 are, therefore, unsustainable in law."

10. In view of the above, speaking order vide

U.C.No.3/2012/BO-IV, dated 02.07.2012 issued by the

Commissioner of respondent No.2, is liable to be set aside.

11. Accordingly, the Writ Petition is allowed by setting aside

the speaking order vide U.C.No.3/2012/BO-IV, dated

02.07.2012 issued by the Commissioner of respondent No.2.

Respondent No.2 shall pass appropriate orders in the BPS

application, strictly in accordance with law, within a period of

four (4) weeks. If respondent No.2 comes to a conclusion that

petitioner is not entitled under BPS scheme, it is open to the

respondent No.2 to issue fresh notice, in accordance with law,

SRS, J