WP/34688/2011 of M.J.Thomas Vs The State of AP., rep.by its Principal Secretary on 29 December 2011

ORDER:

This writ petition is filed under Article 226 of the Constitution ofIndia to declare the order dated 20.12.2011 of the 7[th] respondent asillegal, arbitrary, high handed and malafide as the said order is issuedagainst a dead person and set aside the same holding that theexisting petitioner’s watchman room of A.C Sheets cannot bedemolished as the same is not affecting any public interest or poseany public injury.

2. Heard.

3. It is stated in the affidavit filed in support of the petition that thepetitioner is the legal heir of late brother Maurice through a Will deedexecuted by him bequeathing the land to an extent of Ac.2.00 gts., inSy.No.41/1 of Khanamet village, Serilingampally Mandal, RangaReddy District and since then the petitioner has been in peacefulthpossession and enjoyment of the said property; that the 7respondent had illegally issued the notice under Section 452 ofHyderabad Municipal Corporation Act, 1955 (for short, the Act) on1.12.2011 intimating that they have observed unauthorizedconstruction of A.C sheet rooms in the land of the petitioner; that thethpetitioner has submitted a reply to the 7respondent on 5.12.2011 tothe show cause notice dated 1.12.2011 in its office informing that a small A.C sheet 30 years old room was existing in Western andNorthern corner in the said premises prior to its purchase by the saidlate Maurice; that the petitioner has not made new constructionsduring the past 24 years after taking over by the said land; that aftersubmitting the reply dated 5.12.2011 to the notice dated 1.12.2011thsurprisingly on 20.12.2011, the 7respondent had passed an orderand affixed the same on the wall that too against a dead person evenafter submitting reply by enclosing all necessary enclosuresintimating that they have observed unauthorized construction of A.Csheet rooms in the land of the petitioner; that the very passing ofimpugned order under Section 452(2) of the Act dated 20.12.2011without taking into consideration of the reply dated 5.12.2011 of thepetitioner is arbitrary, high handed and malafide and hence thepresent writ petition is filed.

4. The learned counsel for the petitioner contended thattheimpugned notice was issuedin the name of dead person, that thepetitioner got the said property by virtueof a Will and thatimmediately on receipt of the show cause notice, hesubmitted anexplanation on 7.12.2011 but without considering the same, therespondents have passed the impugned orderdated 20.12.2011 andhence he prays to allow the writ petition.

5. On the other hand, the learned standing counsel appearing forthe respondents 2 to 7 contended thatthe petitioner has not producedany documentary proof to show that he got the said property from hisbrother through a will bequeathing the property; that even in the affidavit filed in support of the petition, the petitioner has not statedthat he is apprehending about the demolitionof the watch man roomthat any time by the staff of the 7respondent and hence they pray todismiss the writ petition.

6. As seen from the impugned notice, it shows that it was issuedon 1.12.2011 and the petitioner has submitted his explanation to thethsaid notice on 5.12.2011 and the 7respondent has passed theimpugned order dated 20.12.2011without considering the explanationthsubmitted by the petitioner.Therefore, the impugned order of the 7respondentissued under Section 452(2) of the Act has to be setaside for the reason that the explanation submitted by the petitionerthhas not been considered by the 7respondent in accordance withthlaw.Hence, the writ petition can be disposed of directing the 7respondentto pass appropriate orders under Section 452(2) of theAct, considering the explanation submitted by the petitioner to thethshow cause notice dated 5.12.2011 issued by the 7respondent.

Conclusion

th7.Accordingly, the writ petition is disposed of directing the 7respondentto pass appropriate orders under Section 452(2) of theAct, considering the explanation submitted by the petitioner to thethshow cause notice dated 5.12.2011 issued by the 7respondent.Noorder as to costs.

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K.C.BHANU,J.

HON’BLE SRI JUSTICE K.C. BHANU

Gk.

WRIT PETITION No.34688 OF 2011

Date:29.12.2011