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2022 DIGILAW 906 (AP)

Ch. Padma Raju v. State of A. P.

2022-09-15

RAVI NATH TILHARI

body2022
JUDGMENT 1. Heard Sri Challa Ajay Kumar, learned counsel for the petitioner and learned Assistant Government Pleader for Municipal Administration for the respondent No.1, Sri S.Lakshminarayana Reddy, learned Standing Counsel for the respondent Nos.2 to 4 and Sri Ch.Dhanunjaya, learned counsel for the respondent No.5. 2. 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, or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents issuing the Building Permit Order vide Permit No.1086/3494/B/Z4/KAD/2018 on dtd. 10/11/2020 as illegal, arbitrary, in violation of principles of Natural Justice and consequently direct the respondents to cancel the Building Permit Order vide Permit No.1086/3494/B/Z4/KAD/2018 on dtd. 10/11/2020 and be pleased to pass such other order or orders as may deem fit and proper in the circumstances of the case." 3. Learned counsel for the petitioner submits that O.S.No.280 of 2007 filed by the petitioner's deceased father against the defendants therein including the unofficial respondent No.5 and some official respondents, is pending on the file of XI Additional District Judge at Visakhapatnam in which after the death of the petitioner's father, the petitioner has filed an application for substitution. He further submits that the material facts were not brought to the notice of the 2nd respondent consequently the grant of the building permission in favour of the 5th respondent has affected adversely the petitioner's right in the property. 4. As is evident from the prayer the petitioner is seeking the cancellation of the building permission No.1086/3494/B/Z4/KAD/2018 on dtd. 10/11/2020 granted in favour of unofficial respondent No.5, by the respondent No.2. 5. Sec. 450 of the Greater Hyderabad Municipal Corporation Act, 1955, in short the Act read with Andhra Pradesh Municipal Corporation Act, 1994 in short the Act, 1994, provides for remedy to an aggrieved person from grant of building permission, to approach the Commissioner for cancellation of permission. 6. 5. Sec. 450 of the Greater Hyderabad Municipal Corporation Act, 1955, in short the Act read with Andhra Pradesh Municipal Corporation Act, 1994 in short the Act, 1994, provides for remedy to an aggrieved person from grant of building permission, to approach the Commissioner for cancellation of permission. 6. Sec. 450 of the A.P. Municipal Corporation Act, 1955 reads as under: "If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Sec. 428 or 433 in the further information if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission." 7. A perusal of Sec. 450 makes it evident that, if at any time after permission for building work is granted the Commissioner on being satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Ss. 428 or 433 in the further information, if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission. 8. In Manohar Rao Kulkarni vs. Commissioner, Hyderabad Municipal Corporation (Town Planning Sec. ), W.P.No.4816 of 1968 , this Court held that the Commissioner is given the power to cancel the permission granted in the circumstances mentioned in Sec. 450 of the Act. In B. Laxmi W/o. B. Adi Reddy vs. Municipal Corporation, Karimnagar, W.P.No.14772 of 2006 also this Court held that Sec. 450 of the Act deals with power of Commissioner to cancel permission on the ground of material representation by the applicant. It was further held that whether the power is to be exercised as specified in Sec. 450 of the Act or not in a particular set of facts, it is a matter to be examined by the concerned Commissioner. 9. It was further held that whether the power is to be exercised as specified in Sec. 450 of the Act or not in a particular set of facts, it is a matter to be examined by the concerned Commissioner. 9. This Court is also of the considered view that once the power of cancellation of building permission granted, is vested in the Commissioner under the specified circumstances under Sec. 450 of the Act, it will be open for an aggrieved person, feeling aggrieved from grant of building permission in favour of other person, to approach the Commissioner to invoke its power of cancellation, by satisfying the Commissioner that the grant of permission was in consequence of any material misrepresentation or fraudulent statement in the notice given or information furnished under Sec. 428 or in furnishing further information if any under Sec. 433 of the Act. 10. This Court is of the further considered view that the proceedings under Sec. 450 of the Act for cancellation of the building permit already granted, may result in passing adverse order against the person in whose favour permission is granted and therefore the Municipal Corporation has to observe the principles of natural justice of affording opportunity of hearing to the person concerned against the proposed cancellation proceedings. The person who has applied for cancellation, if not the Commissioner himself initiating the proceeding under Sec. 450 of the Act, suo moto, has also to be given opportunity of hearing in support of prayer for cancellation. 11. The petitioner, has the statutory remedy under Sec. 450 of the Act with respect to the grievance as raised in the writ petition. 12. In Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556 , the Hon'ble Apex Court held that it is well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. The Hon'ble Apex Court held that the existence of a statutory remedy does not effect the jurisdiction of the High Court to issue a writ but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefore. 13. In this case, this court does not find any good ground to entertain the writ petition, particularly when the facts not brought to the notice of the 2nd respondent by the 5th respondent as mentioned in the writ petition are material facts or not for cancellation of the permission granted, require investigation at the first instance by the Commissioner. 14. In Sanjay Sitaram Khemka vs. State of Maharashtra and others, (2006) 5 SCC 255 , the Hon'ble Apex Court held that a matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. The petitioner in such matters is required to pursue specific remedies provided there for in law. 15. This Court is therefore not inclined to invoke its writ jurisdiction at this stage. 16. The writ petition is dismissed only on the ground of statutory alternative remedy, however, leaving it open to the petitioner to avail the remedy under Sec. 450 of the Act, if so advised, and if such an application is filed by the petitioner within a period of three weeks from receipt of copy of this order, the same shall be considered and appropriate order shall be passed by the 2nd respondent, after affording opportunity of hearing to the petitioner as also to the unofficial respondent No.5, in accordance with law, within a period of three months from the date of filing of the application by the petitioner as aforesaid. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.