Andhra Pradesh High Court - Amravati
M Srinivasa Rao vs The State Of Ap on 19 February, 2025
APHC010074482025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
WEDNESDAY ,THE NINETEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
WRIT PETITION NO: 3852/2025
Between:
M Srinivasa Rao and Others ...PETITIONER(S)
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. ANASURI ESWAR SAI
Counsel for the Respondent(S):
1. A S C BOSE (SC FOR MUNICIPAL CORPORATIONS AP)
2. GP MUNCIPAL ADMN AND URBAN DEV AP
The Court made the following:
ORDER:
The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:-
"...to issue a WRIT OF MANDAMUS or any other appropriate writ, order or direction declaring the action of the respondent no.2 in issuing the demolition / pull down notice Dt.07.02.2025, directing the petitioners to vacate the building situated in Door Nos.27-7-65 and 27-7-66, Sivalayam Street, Governorpet, Vijayawada, within seven days from the date of receipt of the said notice, so as to enable the 2nd respondent herein pull down the structure with proceedings ROC NO.02/2024/WS-098/TPBO- 8/ACP-2, without following the due process of law is illegal and arbitrary and unjust and also violative of Sec.459(5)(a) of Municipal Corporations Act, 1955 and also violative of Principals of Natural Justice and consequentially set aside the impugned notice Dt.07.02.2025 issued by the 2nd respondent and pass..."
2. Brief facts of the case are that the respondent Nos.3 and 4 herein are the owners of the property situated in door Nos.27-7-65 and 27-7- 66 respectively of Sivalayam Street, Governorpet, Vijayawada and the petitioners herein are the tenants of the said property wherein they have been running businesses from almost three decades.
3. While the matter stood thus, the 2nd respondent has issued the impugned notice dated 07.02.2025 directing the petitioners to vacate the said buildings situated in Sivalayam Street, Governorpet, Vijayawada within seven days from the date of receipt of the said notice, so as to enable the 2nd respondent to pull down the same keeping in view the safety of the public and to avoid any untoward incident due to ruinous condition of the building. Aggrieved by the same, the petitioners have filed the present writ petition.
4. Heard learned counsel for the petitioners and Mr. A.S.C. Bose, learned Standing Counsel for the respondent corporation.
5. During the course of arguments, learned counsel for the petitioners contended that the respondent Nos.3 and 4 have enhanced the rent payable by the petitioners which was denied by the petitioners herein. As such, with an ulterior motive, the respondent Nos.3 and 4 have directed the petitioners to vacate the subject property and have allegedly colluded with the 2nd respondent who in turn has issued the impugned notice dated 07.02.2025 wherein it was mentioned that the 2nd respondent earlier has issued a notice dated 18.11.2024 to the respondent Nos.3 and 4 along with the petitioners herein to get the building strengthened by carrying out necessary repairs in consultation with a competent structural engineer or to get the building pulled down to avoid untoward consequences.
6. Learned counsel for the petitioners contends that the said notice was not served upon the petitioners herein and that the 2nd respondent has not called for any objections before issuing the impugned notice under Section 456 of Municipal Corporation Act, 1955. In pursuance of the said notice that was served on respondent Nos.3 and 4, they got their building inspected by structural engineer deputed by M/s Velagapudi Rama Krishna Siddhartha Engineering College who has submitted a report stating that a part of the subject building has already collapsed due to rains and that the building shall be demolished immediately under the supervision of concerned authorities.
7. Learned counsel for the petitioners vehemently contended that the respondent Nos.3 and 4 have no right to get the subject building inspected by a structural engineer and that the report submitted by structural engineer cannot be considered by the respondent authorities for demolition of the same. He further contended that duly enclosing the said report, the respondent Nos.3 and 4 have submitted a representation to the 2 nd respondent on 29.01.2025 expressing their willingness to get the subject building pulled down and requested to take up the process of demolition at the incidental costs of respondent Nos.3 and 4 itself. He contended that basing on the same, the 2nd respondent has issued the impugned notice dated 07.02.2025 violating the principles of natural justice, as no reasonable opportunity was given to the petitioners for raising objections, as per Section 459 of Municipal Corporation Act, 1955. He argues that the respondent Nos.3 and 4, with an ulterior motive to get the petitioners vacated from the subject building have approached the 2nd respondent who has issued the impugned notice dated 07.02.2025 and that the same is liable to be set-aside.
8. Learned Standing Counsel for the respondent corporation, relying upon the instructions received from the 2nd respondent vide Rc-G2- 102493/2025, has submitted that on 10.11.2024, upon receiving a complaint, the staff of the respondent corporation have inspected the subject building and found that the said building is in ruinous condition and that a part of the said building was already collapsed due to heavy rains. As such, a notice dated 18.11.2024 under Section 456 of Municipal Corporation Act, 1955 was issued to the petitioners and as well as the respondent Nos.3 and 4, with a direction to carryout necessary repairs for making the building structurally stable in the supervision of a qualified structural engineer.
9. Upon receipt of such notice, the respondent Nos.3 and 4 have approached M/s V.R. Sidhartha Engineering College with regard to the strengthening of the said building, on such request a team deputed by the said college has conducted inspection and submitted a report on 30.11.2024 stating that the building was constructed 75 years ago and is in ruinous condition; as such suggested to pull down the said structures immediately. Pursuant to the said report the respondent Nos.3 and 4 have approached the 2nd respondent expressing their inability to get the building structurally stable by carrying out repairs and requested to demolish the same stating that they would bear the incidental costs. Pursuant to the same, the respondent No.2 has issued the impugned notice dated 07.02.2025 directing the petitioners to treat it as a notice issued under the provisions of Section 456 read with Sections 459 and 462 of Municipal Corporations Act, 1955.
10. With regard to the contention of learned counsel for the petitioners that the 2nd respondent, relying upon the stability certificate submitted by respondent Nos.3 and 4 cannot issue the impugned notice dated 07.02.2025, learned Standing Counsel has submitted that as per G.O.Ms.No.119, Municipal Administration and Urban Development (M) Department, dated 28.03.2017, the duty is cast upon the owner of a building to get his building inspected by a registered structural engineer and the same can be produced by the owner to the concerned authority. Learned Standing Counsel while concluding his arguments has submitted that as the respondent Corporation has rightly followed the procedure contemplated under law by duly issuing notice to the affected persons, the writ petition is devoid of merits and hence requested to dismiss the same.
11. For better appreciation of the case, the relevant portion of G.O.Ms.No.119, dated 28.03.2017 is extracted hereunder:
"19. Maintenance of Buildings (1) In case of buildings older than fifty years, it shall be the duty of the owner of a building, to get his building inspected by a Registered Structural Engineer within a year from the date of coming into force of these Rules or as decided by the Authority. The Structural Inspection Report Form No.16, of the MHA Expert Committee Report shall be produced by the Owner to the Concerned Authority. If any action, for ensuring the structural safety and stability of the building is to be taken, as recommended by Structural Engineer, it shall be completed within the time period as stipulated by the Authority.
(2) The owner/developer/occupant on the advice of such experts shall carry out such repair/restoration and strengthening/retrofitting of the building found necessary so as to comply with the safety standards.
(3) In case, the owner/developer/occupant does not carry out such action, the Authority or any agency authorized by the Authority may carry out such action at the cost of the owner/developer/occupant."
12. The facts of the writ petition are not in dispute. The impugned notice dated 07.02.2025 was issued to the petitioners and as well as the owners of the subject building i.e. the respondent Nos.3 and 4 directing them to treat the same as a notice issued under the provisions of Section 456 read with Sections 459 and 462 of Municipal Corporations Act, 1955. For better understanding, the aforementioned sections are extracted hereunder:
"456. Removal of structures, trees, etc., which are in ruins or likely to fall.
(1)If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall, parapet, pavement, floor, steps, railings, door or window frames or shutters or roof, or other structure and anything affixed to or projecting from or resting on, any building, wall, parapet or other structure is in ruinous condition or likely to fall, or is in any way dangerous to any person occupying, resorting to or passing by, such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to do one or more of the following things, namely:-
(i)to pull down,
(ii)to secure,
(iii)to remove, or
(iv)to repair such structure or thing, and to prevent all cause of danger therefrom.
(2)The Commissioner may also, if he thinks fit, require the said owner or occupier by the said notice, either forthwith or before proceeding to pull down, secure, remove or repair the said structure or things, to set up a proper and sufficient hoard or fence for the protection of passers-
by and other persons, with a convenient platform and hand-rail, if there be room enough for the same the Commissioner shall think the same desirable, to serve as footway for passengers outside of such hoard or fence.
459. Opportunity for stating objections.- The Commissioner shall issue a notice under subsections (1) and (2) of section 456, sub- section (1) of 457 or sub-section (1) of section 458, after giving the owner or occupier, as the case may be, a reasonable opportunity of stating any objection and adducing evidence, if any, and after being satisfied that the objection which is raised is invalid or insufficient."
13. Admittedly, the petitioners and as well as the respondent Nos.3 and 4 were earlier issued a notice dated 18.11.2024 under Section 456 of Municipal Corporation Act, 1955, by the 2nd respondent duly directing the owners of the subject building bearing door Nos.27-7-65, 27-7-66, Sivalayam Street, Governorpet, Vijayawada to get the building strengthened by carrying necessary repairs in consultation with a competent structural engineer or to get the building pulled down. Learned Standing Counsel along with the instructions of the 2nd respondent has enclosed a copy of the notice dated 18.11.2024, on a perusal of which it can be seen that the same has been acknowledged by the respondent Nos.3 and 4, but, it does not disclose that it has been acknowledged by the petitioners herein.
14. As per the Section 459 of Municipal Corporation Act, 1955, only after giving the owner or occupier, as the case may be, a reasonable opportunity of stating any objection and adducing evidence, if any, and after being satisfied that the objection which is raised is invalid or insufficient, the Commissioner shall issue a notice under subsections (1) and (2) of Section 456, subsection (1) of Section 457 or subsection (1) of Section 458 of the Act. In the instant case, the petitioners contend that the notice dated 18.11.2024 issued by the 2nd respondent has not been served on them and the respondents on the other side have also failed to prove that the said notice was acknowledged by the petitioners herein. It is the case of the petitioners that before issuing the impugned notice dated 07.02.2025 under Section 456 of the Municipal Corporation Act, 1955, the respondents have not called for any objections as required under Section 459 of Municipal Corporation Act, 1955.
15. In the present case, as the earlier notice dated 18.11.2024, though was acknowledged by the respondent Nos.3 and 4, the same was not served on the petitioners herein, depriving them an opportunity of submitting objections, if any. Even otherwise, on a perusal of the impugned notice dated 07.02.2025, it can be observed that the 2nd respondent has issued the same directing the petitioners and the owners to treat it as a notice under Section 456 read with Sections 459 and 462 of Municipal Corporation Act, 1955. As discussed above, Section 459 of the Act deals with calling for objections from the owners or occupiers. As such, the impugned notice dated 07.02.2025 shall be treated as a notice under Section 459 of the Municipal Corporation Act, 1955 and the petitioners shall submit their objections, if any.
16. Even on a perusal of the photographs of the subject building filed by the petitioners, it is evident that the building is in a very dilapidated condition and is in a ruinous condition which can be endangered to the people of the vicinity.
17. In view of the above discussed facts and circumstances of the case, the writ petition is disposed of directing the petitioners to submit their objections to the impugned notice dated 07.02.2025 issued by the 2 nd respondent treating it as a notice under Section 459 of the Municipal Corporation Act, 1955, within a period of one (1) week from today. Upon receipt of such objections, the 2nd respondent shall consider the same after duly conducting an enquiry in accordance with law, as expeditiously as possible, preferably within a period of one (1) week thereafter. Till such time, the respondents are directed not to interfere with the possession of the petitioners over the subject building bearing door Nos.27-7-65 and 27-7-66, Sivalayam Street, Governorpet, Vijayawada.
18. Accordingly, with the above direction, this writ petition is disposed of. No costs.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
___________________ JUSTICE V.SUJATHA Date:19.02.2025 GSS