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2021 DIGILAW 274 (AP)

Tatturu Tarakanath v. State of Andhra Pradesh

2021-04-23

CHEEKATI MANAVENDRANATH ROY

body2021
ORDER : Cheekati Manavendranath Roy, J. 1. In this writ petition, the petitioner seeks declaration; that the action of the 2nd respondent in issuing the impugned notice, dated 16.4.2021, to the petitioner, directing him to remove the construction of the house in an extent of 7.25 meters within three days from the date of receipt of the notice on the, ground that the petitioner encroached on to the Municipal site, without calling for his explanation, as illegal, arbitrary and violative of principles of natural justice, and consequently, sought direction to the respondents not to take any coercive steps and interfere with the possession of the petitioner in respect of the said construction. 2. Heard learned Counsel for the petitioner and learned Assistant Government Pleader for Municipal Administration and Urban Development for 1st respondent and Sri N. Ranga Reddy, learned Standing Counsel for Municipalities, for respondents 2 and 3. 3. As per the facts pleaded by the petitioner, he has purchased an old house bearing Door No. 7/2634, which is in an extent of 97.2 Sq.yards in Ward No. 7 in Proddatur Town of YSR Kadapa District, on 17.10.2016 from one Mr. Sakam Vijaya Bhaskar. The petitioner has been paying properly tax and water tax to the Municipality in respect of the said house regularly. It is stated that the said house was constructed after obtaining necessary permission from the Municipality for construction of the house by his vendor. There was no objection from the Municipality or from any person regarding the construction of the said house for all this length of time. 4. While so, the Municipal authorities have served a notice under Section 192 of the A.P. Municipalities Act, 1965, (for short, the "Act"), on the petitioner stating that the petitioner is an encroacher and that the house in question was constructed by encroaching on to the Municipal site and that electricity wires were passing above his house and thereby directed to remove the construction. 5. Now the grievance of the petitioner in this writ petition is that notice under Section 192 of the Act for removal of the construction was issued straightaway without even issuing any show-cause to the petitioner calling for his explanation as to why the said construction is to be removed and without giving any opportunity to the petitioner to submit his explanation. Therefore, the petitioner assails the impugned notice only on the ground of violation of principles of natural justice. 6. Sri N. Ranga Reddy, learned Standing Counsel for respondents 2 and 3, would submit that Section 192 of the Act did not contemplate issuance of any such show-cause notice to the petitioner before taking any action under Section 192 of the Act. Therefore, no show-cause notice is required to be issued to the petitioner under the Act. So, he would submit that the petitioner cannot assail the impugned notice on the said ground. 7. Learned Counsel for the petitioner would submit that even though Section 192 of the Act did not contemplate issuance of any show-cause notice that the principles of natural justice demand issuance of show-cause notice to the petitioner before taking any coercive steps of demolishing the building in question and, more particularly, when the dispute involves civil consequences. In support of his contention, he relied on the judgment of this Court in the case of Smt. Shafiya Begum v. The State of Andhra Pradesh, Order dated 16.11.2015 passed in WP No. 37161 of 2015 (AP HC), 2016 (3) ALD 22 . 8. As can be seen from the said judgment, that was also a case of issuance of notice under Section 192 of the Act without issuing any prior show-cause notice to the petitioner therein. The validity of the said notice was questioned on the ground of violation of principles of natural justice. Similar contention that, as Section 192 of the Act did not contemplate issuance of any such notice, that no show-cause notice is required to be given was raised in the said case. This Court did not accept the said contention. While relying on the earlier judgment of the Apex Court rendered in the case of Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 , wherein it is held that the principle is clear and settled that right of hearing even if not provided under a specific statute, the principles of natural justice shall so demand, unless by specific law, it is excluded and it is more so when exercise of authority is likely to vest the person with consequences of civil nature, this Court has quashed the notices issued under Section 192 of the Act. 9. 9. In the case of Uptron India Limited v. Shammi Bhan, (1998) 6 SCC 538 : 1998 (3) ALD (S.C.S.N.) 16, the Supreme Court reiterated the said principle stating that the principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. Again in the case of D.K. Yadav v. J.M.A. Industries Limited, (1993) 3 SCC 259 and Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 (5) ALD (S.C.S.N.) 11, the above principle has been affirmed by the Apex Court. 10. Thus, from the conspectus of law laid down in all the above judgments of the Apex Court, which are discussed in the aforesaid judgment of this Court, the legal position is made very clear that even though the statute did not provide for issuance of any show-cause notice in a matter, which involves civil consequences, still the principles of natural justice require the authority concerned to provide an opportunity to the aggrieved person to submit his explanation in respect of the proposed action to be taken and after hearing the person, who is going to be affected by the said action and after considering his explanation, then the action has to be initiated, if the said explanation is found to be not true or when the same is found to be not satisfactory. 11. In the instant case, the petitioner has been in settled and uninterrupted possession of the house in question for the last several years. According to him the said house was constructed by his vendor long back as per the permission accorded by the Municipality. Therefore, when the petitioner has been in uninterrupted and settled possession of the property in question for the last several years, when the Municipality now proposes to initiate action under Section 192 of the Act for removal of the said construction of the house, on the ground that the petitioner has encroached on to the site of the Municipality while constructing the said house, principles of natural justice certainly demand issuance of show-cause notice to him before initiating any such action to provide opportunity to him to submit his explanation. 12. 12. Therefore, in the light of the above law enunciated elaborately, the impugned notice issued under Section 192 of the Act, which is issued in gross violation of principles of natural justice, is not valid and clearly unsustainable under law. More particularly, as the petitioner has been in settled possession of the property in question for the last so many years, prudence, justice and fair play require issuance of show-cause notice to the petitioner to submit his explanation before ordering for demolition of the building in question. 13. Therefore, the writ petition is allowed declaring the impugned notice as illegal as it is violative of principles of natural justice and accordingly, the impugned notice is set aside. However, the respondents are at liberty to issue show-cause notice to the petitioner calling for his explanation and after receiving the explanation that may be submitted by the petitioner and considering the same the respondents are at liberty to proceed according to law. No costs. 14. Consequently, miscellaneous applications, pending if any, shall also stand closed.