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2002 DIGILAW 335 (AP)

P. Ravindra Babu v. Municipal Corporation, Visakhapatnam

2002-02-28

V.V.S.RAO

body2002
V. V. S. RAO, J. ( 1 ) THESE two writ petitions are filed by one p. Ravindra Babu, who at the relevant time was a licenced Surveyor to approve the building plans to be submitted by the persons who intend to construct building or buildings, to the Visakhapatnam Municipal corporation (for short the VMC ). ( 2 ) BY order dated 20-11-2000 (herein after called the 1st impugned order ), the commissioner of the VMC cancelled the licence of the petitioner on certain allegations. The petitioner challenged the same by filing W. P. No. 24860 of 2000. This court suspended the operation of the said order. Subsequently, the Commissioner of the VMC, passed an order dated 1-12-2000 (hereinafter called the 2nd impugned order ), cancelling the registration of the petitioner bearing No. 135/99-2000. Challenging the same, the petitioner filed w. P. No. 66 of 2001. Both the impugned orders are termed as notices. The only difference being that the 1st impugned order merely cancels the licence issued to the petitioner, whereas the 2nd impugned order cancels the registration given to the petitioner as licenced Surveyor. Since the legal submissions in both the writ petitions are one and the same, they are being disposed of by this common order. ( 3 ) THE sole contention of the learned counsel for the petitioner is that both the impugned orders are void for they suffer from the vice of violation of the principles of natural justice, and as such, are unenforceable. He would alternately submit that no adequate opportunity was given to the petitioner to explain the two alleged contraventions by him while approving/ preparing the building plans of one mr. Appa Rao and another Mr. Lakshman rao. ( 4 ) THE VMC has filed counter-affidavit and also produced the relevant file for perusal of the Court. It is a fact that the 1st impugned order was not preceded by any show-cause notice calling upon the petitioner to give his explanation as to the allegations of his collecting less charges and paying to the Corporation while approving the building plan of one Appa Rao. Insofar as the 2nd impugned order is concerned, prior to the issuance of the same, a note dated 30-10-2000 was sent to Lakshman Rao by the Commissioner of the VMC directing him to appear before him for a personal hearing on 2-11-2000. Insofar as the 2nd impugned order is concerned, prior to the issuance of the same, a note dated 30-10-2000 was sent to Lakshman Rao by the Commissioner of the VMC directing him to appear before him for a personal hearing on 2-11-2000. A copy thereof was marked to the petitioner. On 2-11-2000, it appears that an enquiry was conducted wherein the statement made by the petitioner allegedly admitting the contraventions, was recorded. However, immediately on 9-11-2000, the petitioner submitted a representation to the commissioner of the VMC inter alia contending that the plot of Mr. Lakshman rao and his brothers is very much situated in the approved layout in T. S. No. 817, Block no. 28, Ward No. 22, China Waltair. In support of his claim, he also submitted g. O. Ms. No. 87, dated 9-2-1984. Insofar as the alleged statement/deposition made by him on 2-11-2000 before the Commissioner of the VMC, is concerned, the petitioner in his representation dated 9-11-2000 stated as under: in compliance with the directions, sri P. Lakshman Rao and his brothers attended the office of the commissioner on 2-11-2000. As per their request, I also accompanied them. The Additional Commissioner and city Planner were also sitting with the commissioner. During the hearing, I was asked as to how I could prepare and approve a plan in respect of the proposed building. I submitted that I prepared and approved the plan for proposed residential building in question as per Government Order in g. O. Ms. No. 423, M. A. , dated 31-7-1978 and strictly in accordance with the master Plan/zonal Development Plan, zonal Regulations, Building Bye-laws/ rules. Then I was asked to locate the site in question in the layout approved by the competent authority. I brought to the notice of the Commissioner that the site in question in T. S. No. 817, block No. 28, Ward No. 22, chinawaltair is reflected in the development Plan/zonal Development plan vide T. P. No. 59/65. However, while I was explaining, the additional Commissioner and the City planner were disinclined to accept my submissions. ( 5 ) IN the 2nd impugned order, in there ference entry, reference is made to g. O. Ms. No. 423, M. A. , dated 31-7-1978 and also the deposition statement made by the petitioner on 2-11-2000 before the commissioner of the VMC. ( 5 ) IN the 2nd impugned order, in there ference entry, reference is made to g. O. Ms. No. 423, M. A. , dated 31-7-1978 and also the deposition statement made by the petitioner on 2-11-2000 before the commissioner of the VMC. Though the 2nd impugned order is dated 1-12-2000, the same does not refer to the representation made by the petitioner dated 9-11-2000. It is, therefore, clear that the representation of the petitioner dated 9-11-2000 was not taken into consideration while passing the 2nd impugned order. ( 6 ) THE only question that falls for consideration, as contended by the learned counsel for the petitioner, is whether the principles of natural justice have been violated while passing the impugned orders? ( 7 ) SECTION 618 of the Hyderabad Municipal Corporation Act, 1955 (for short the Act ), which has also been made applicable to the Visakhapatnam Municipal corporation, empowers the Commissioner to grant licence to a person to act as surveyor for the purpose of this Act, and each such licence shall be renewable for a period of one year. Granting of such licence is subject to the condition that the applicant seeking licence to act as surveyor must be a licentiate of Civil Engineering (Diploma in Civil engineering) or a person who has passed some test of professional qualification equivalent to that for a licentiate of Civil engineering. The Commissioner, however, cannot refuse any application except with the approval of the Standing Committee, and if the application is refused, reasons for such refusal have be disclosed, duly furnishing a copy of the refusal order. ( 8 ) THE Municipal Corporation Building Bye-laws, 1981 made by the Hyderabad municipal Corporation in exercise of the powers conferred by Section 589 of the Act, apply to VMC also. Building bye-law no. 4. 2. 3 states that technical personnel for the preparation of various plans and designs and construction of building schemes shall be licensed by the authority competent to do the work for which they are employed. The qualifications of the technical personnel, and their competence to carry out different jobs, procedure for licensing and duties, shall be as given in Appendix c to the building bye-laws. The qualifications of the technical personnel, and their competence to carry out different jobs, procedure for licensing and duties, shall be as given in Appendix c to the building bye-laws. A reading of Appendix c which by itself is a mini-compendium of rules and regulations in relation to licensed technical personnel, including surveyors, shows that the duties assigned to licensed surveyor are very sacrosanct. Indeed, it may not be an exaggeration to say that licensed surveyors and other licensed technical personnel play an important role in urban planning and development, without whose services, there would be unimaginable and unplanned growth and development of cities. Be that as it may C-3. 5,3. 7 and 3. 8 of Appendix c to the Municipal Corporation Building Bye- laws, 1981, which are relevant for our purpose, read thus: c-3. 5. The authority may in its discretion grant or refuse licence. In case he refuses to grant a licence the licence fee and the security deposit shall be refunded to the applicant. C-3. 7. The authority may cancel the licence for contravention of any provisions of the Act, rules or bye-laws framed thereunder. No licensed personnel whose licence is cancelled shall be eligible for grant of fresh licence until the expiry of a period of three years from the date of cancellation. Any licensed personnel who contravenes any of the conditions of the licence granted to him shall be punishable with fine which may extend upto Rs. . . . . . . . C-3. 8. If due to various reasons the licence is cancelled, the licensed personnel shall return his licence to the authority within 24 hours from the delivery of the order cancelling the same, failing which the authority may withhold refund of the security deposit until the licence is returned. If the licence is not returned within three days from such date, the security deposit shall be deemed to be forfeited to the Corporation. ( 9 ) AS per C-3. 7 of Appendix c , a licence issued to a surveyor is liable for cancellation for "contravention of any of the provisions of the Act, Rules and Bye-laws framed thereunder". However, when a licence is cancelled, a fresh licence shall not be issued until the expiry of period of three years from the date of cancellation. Further, a licensed surveyor is also liable for punishment with fine. As per C-3. However, when a licence is cancelled, a fresh licence shall not be issued until the expiry of period of three years from the date of cancellation. Further, a licensed surveyor is also liable for punishment with fine. As per C-3. 8 of Appendix c , when a licence is cancelled, the licensed surveyor has to return the licence to the authority within 24 hours, failing which the authority may withhold the security deposit until the licence is returned. If the licence is not returned within three days, the security deposit shall be forfeited to the Corporation. Either Section 618 of the Act or the provisions in Appendix c of the Municipal corporation Building Bye-laws, 1981, especially C-3. 5 to 3. 8 do not require any prior notice to be given before a licence is cancelled. ( 10 ) IT is well settled that the requirement of notice is implied in any action, which results in civil consequences. The persons whose rights are likely to be curtailed should be given notice. Be it noted that while interpreting the provisions of a statute, there is presumption that the legislature always intended the law enforcing authorities to act reasonably and in a fair manner, even though such a requirement is not explicitly stated in the statute. Therefore, it is reasonable to interpret that even though the provisions of the statute do not specifically provide for issuance of a notice before cancellation of a licence, the requirement of issuing a notice before such cancellation, has to be read into the provisions of the statute. Further, as already noticed, when an application for grant of licence to act as surveyor is rejected, the Commissioner has to obtain prior approval of the Standing Committee, and such rejection has to be supported by reasons. Giving reasons for rejection of licence is part of fair procedure, and natural justice being part and parcel of the doctrine of "fairness", a notice is mandatory before any order is passed under C-3. 7 of appendix c of Building Bye-laws. ( 11 ) IN the present case, on 2-11-2000, the petitioner admittedly accompanied the owners, and indeed gave a deposition before the Additional Commissioner! however, immediately, thereafter, he made a representation dated 9-11-2000 to the commissioner, and also filed relevant documents to show that the house plots were included in the approved lay out. ( 11 ) IN the present case, on 2-11-2000, the petitioner admittedly accompanied the owners, and indeed gave a deposition before the Additional Commissioner! however, immediately, thereafter, he made a representation dated 9-11-2000 to the commissioner, and also filed relevant documents to show that the house plots were included in the approved lay out. The 2nd impugned order neither refers to the representation made by the petitioner nor adverts to it. The order, therefore, must be held to be contrary to the principles of natural justice and the doctrine of fairness. fairness requires the authority to consider the explanation and deal with the same while cancelling the licence. As already noticed, the learned Standing Counsel does not dispute that the 1st impugned order dated 20-11-2000 was not preceded by any notice. ( 12 ) IN the result, orders impugned in the writ petitions cannot be sustained, and they are accordingly set aside. The writ petitions are allowed. No costs.