IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION No.13387 of 2009 Between: Meka Ramchander Rao ..... PETITIONER AND Government of Andhra Pradesh rep.by its Principal Secretary, Municipal Administration & Urban Development, Secretariat, Hyderabad and others. .....RESPONDENTS ORDER: The petitioner claims to be the absolute owner and possessor of land in an extent of 493.3½ sq.yards, situated in R.S.No2.64/1 and 70 of Chandragupta Colony, Thangellamudi Village, Eluru Town, having purchased the same under a registered sale deed, dated 07.05.1983, from Eluru Cooperative Building Society Limited. He states that he made an application in the year 2004, along with necessary charges to the respondent-Corporation, for construction of RCC Building with shops. While so, it is the case of the petitioner that the second respondent-Corporation issued the impugned notice, dated 26.06.2009, under Section 636 of the HMC Act, 1955, directing him to remove the unauthorized constructions of shops in question for the grounds mentioned therein and since the second respondent has not returned his application as alleged in the impugned notice, the constructions made are deemed to have permission under Section 437 of the HMC Act, 1955. His further case is that no notice under Section 452 of the HMC Act, 1955 as stated in the impugned notice was served on him. Hence, the present writ petition seeking appropriate directions in this regard. The second respondent, namely, the Municipal Corporation, Eluru, filed a detailed counter in the matter denying the allegations made by the petitioner in the affidavit filed in support of the writ petition. It is categorically stated in the counter that the petitioner has made constructions by encroaching the major drain alignment of 80’- 00” Master Plan road obstructing free flow of drain, even after rejection of his plans, vide B.A.No.321/04 with endorsement, dated 13.03.2005. It is also stated that the notice under Section 452 of the HMC Act, 1955 was issued on 22.06.2009 and as the petitioner refused to receive it, the same was pasted on the structures. After expiry of statutory period of three days, the second respondent issued the impugned notice under Section 636 of the HMC Act, 1955 directing the petitioner to remove the unauthorized constructions within 24 hours, failing which, the same will be removed by the Corporation, and as the petitioner failed to do so, the second respondent got removed the unauthorized constructions, after expiry of 24 hours and dug the drain in straight line and completed the same resulting in free flow of drainage water. It is further stated that though the petitioner filed O.S.No.546 of 2005 against the second respondent and obtained interim injunction, subsequently the said suit came to be dismissed on 04.04.2008, basing on the memo filed by the petitioner stating that he has adjusted the matter outside the Court before elders. A reply affidavit has been filed by the petitioner denying the averments made in the counter affidavit and stating that the petitioner has never rejected to receive the notice, dated 22.06.2009, issued under Section 452 of the HMC Act, 1955. That respondents failed to follow the procedure prescribed under Sections 629, 630 and 631 of the HMC Act, 1955. It is however admitted that the suit filed by him was dismissed on 04.04.2008 on the basis of the memo filed by him. It is further stated that he is paying the tax to the Corporation regularly in respect of the shops in question and therefore, it cannot be said that he occupied the road margin. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the second respondent. At the outset, it is to be noted that in the counter filed by the second respondent-Corporation, it is categorically stated that the application submitted by the petitioner in the year 2004 for construction of shops in the subject land, was rejected as long back as on 13.03.2005 vide B.A.No.321/04 and in spite of the same, the petitioner has proceeded with the constructions. As the constructions were made by encroaching the major drain alignment of 80’-00” Master Plan road obstructing free flow of drain, the second respondent issued notice, dated 22.06.2009, directing the petitioner to remove the unauthorized constructions. The learned counsel for the petitioner contended that as no notice under Section 452 of the HMC Act, 1955 was served on the petitioner at any point of time, the impugned notice is liable to be set aside and in support of his contention, he relied upon the judgments of this Court Amba Bai Tiwari v. The Special Officer, Municipal Corporation of Hyderabad, Hyderabad and another[1] and G.Kamala Kumari v. The Municipal Corporation of Hyderabad, rep.by its Commissioner, Hyderabad[2]. However, it is to be noted that in the judgments relied on by the learned counsel for the petitioner referred to supra, the petitioners therein were not issued notices under Section 452 of the HMC Act, 1955 before issuing final notice and therefore, the notices issued under Section 636 of the HMC Act, 1955 were quashed. But, in the case on hand, it is categorically stated in the counter, which is oath against oath, that as the petitioner refused to take the notice, dated 22.06.2009, under Section 452 of the HMC Act, 1955, the same was pasted on the structures and after expiry of statutory period of three days, the impugned notice under Section 636 of the HMC Act, 1955 was issued directing the petitioner to remove the unauthorized structures within 24 hours and as the petitioner failed to do so, the second respondent-Corporation has got demolished the structures. From the above, it is clear that the petitioner has made constructions in the subject land unauthorisedly by encroaching the drain alignment causing inconvenience to the public at large. Further, the suit filed by the petitioner was dismissed based on the memo filed by him and therefore, it cannot be said that the petitioner has no knowledge about the unauthorized constructions made by him in the subject land. The respondent-Corporation, taking into consideration the interests of the public at large, has got removed the unauthorized constructions made by the petitioner, as they are affecting free flow of drain water. It is not even the case of the petitioner that he was granted permission for making constructions in the subject land. Therefore, the action of the respondent-Corporation in demolishing the unauthorized constructions in the subject land cannot be found fault with. For the foregoing reasons, I see no merit in the writ petition and is liable to be dismissed. The writ petition is accordingly dismissed. No costs. ___________________ N.V. RAMANA, J. Date:17.09.2009 VGB [1] 1990 (1) ALT 23 [2] 1989 (2) (HC) APLJ 120