`IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.258 OF 2011 Between : S.Yellamma and others. ... PETITIONERS A N D The Greater Hyderabad Municipal Corporation and others …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU WRIT PETITION NO.258 OF 2011 ORDER: This Writ Petition is filed seeking to declare the action of the respondents in demolishing the petitioners house bearing No.6-1-276/A (Old No.8) Walker Town, Padmaraonagar, Secunderabad, without issuing prior notice, as illegal and arbitrary and consequently, direct the respondents forthwith for reconstruction of small two rooms of size 10 x 12 with asbestos sheets at their cost; not to make any construction or undertake any other activity in the property till filing of the first appeal by the petitioners against the judgment and decree, dated 31.12.2010 in O.S.No.23 of 2004 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad. 2. In the affidavit filed in support of the Writ Petition, it is stated that the petitioners are absolute owners and possessors of house bearing No.6-1-726/A (Old No.8), Walker Town, Padmaraonagar, Secunderabad having purchased the same under Sale Deed, dated 04.04.1956 from one Late C.V.Shanmugam. While things thus, in the year 1999 petitioner No.1 came to know that her vendor was wrongly shown the above house as open land in the layout which was obtained in the year 1985 in respect of her adjoining property and on the basis of the same, G.H.M.C. started illegally interfering with their peaceful possession and enjoyment. Thereafter, the petitioners got issued legal notices, dated 09.08.1999, 10.08.1999, 28.01.2003 and 28.02.2004 to the GHMC inter alia asking the GHMC to amend the layout and not to interfere with possession of the property. In spite of receiving the legal notices, the respondents did not issue any reply nor amended the layout. Thereafter, the respondents issued notice, dated 27.02.2004 under Section 405 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’) and trying to dispossess the petitioners from the said house. Thereafter, the petitioners filed W.P.No.3773 of 2004 before this Court and obtained stay of demolition. Thereafter, the said Writ Petition was dismissed vide order, dated 23.03.2004. The petitioners filed O.S.No.23 of 2004 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad, for declaration of title and injunction against the respondents. During pendency of the said suit, the petitioners obtained interim orders in their favour. Thereafter, the suit was dismissed by judgment, dated 31.12.2010. All of a sudden on 07.01.2011 at 4:00 PM the respondent officials along with a bulldozer came to the house of petitioners and demolished a portion of the house without issuing any notice in spite of their objections. Thereafter, on 10.01.2011 the respondent officials came to the petitioners house along with some construction material and tried to raise a compound wall in order to close ingress and egress to the house. Thereafter, the petitioner got issued legal notice, dated 10.01.2011 to the respondents questioning the illegal and highhanded action of the respondents in demolishing the house of the petitioners. Thereafter, the son of petitioner No.1 filed an application under Right to Information Act. Hence, the Writ Petition. 3. The respondents filed counter-affidavit stating that one C.V.Shanmuga Raj, was the owner of the land situated at Padmarao Nagar since from 1963 onwards and subsequently in the year 1985 the said C.V.Shanmuga Raj obtained the layout permission from the Municipal Corporation of Hyderabad consisting of 22 plots and open space admeasuring 450 square yards meant for park. In the year 1999 the Engineering Department of erstwhile MCH visited the said site and started construction of basement for compound wall around the said open space. For which, the petitioner filed O.S.No.672 of 1999 on the file of the XI Junior Civil Judge, City Civil Court, Secunderabad without issuing any notice under Section 685 of HMC Act which is mandatory before approaching the Court of law and the said suit is dismissed. Thereafter, MCH issued notice under Section 405 of HMC Act to the petitioners to remove the encroachment on the said open space. But, they refused to receive the notice deliberately, the same was affixed on the wall and after expiry of the time given in the said notice, the officials of respondent –Corporation demolished the shed raised by the petitioners. After demolition of the said shed, the petitioners again raised the temporary shed in the said open space and filed W.P.No.3773 of 2004. After hearing both sides, this Court dismissed the same. The petitioners filed O.S.No.23 of 2004 before I Additional Chief Judge, City Civil Court, Secunderabad for declaration of title in respect of the said open space and obtained interim injunction. During pendency of the above suit, petitioner No.1 died and L.Rs. are came on record. Thereafter, the said suit was dismissed. Thereafter, the respondent authorities went to the house of the petitioners and requested the petitioners to vacate the house, but they refused to vacate the same. On 07.01.2011 the respondent authorities with the help of police demolished the illegal and unauthorized temporary construction and constructed a compound wall and erected the gate in order to protect the open land. 3. Learned counsel for the petitioners contended that the Petitioners filed a civil suit for declaration of their right in respect of the disputed property; that later the said suit was dismissed; that there is a serious dispute with regard to the title of the property, without issuing any notice to the petitioners, the respondents have no authority to demolish the structures in the site which was in possession of the petitioners since a long time and hence, he prays to give a direction to the respondents. 4. On the other hand, learned Standing Counsel for the respondents contended that the petitioners have not filed a single document to show that they have got prima facie title in respect of the said site and hence, the petitioners are encroachers on the site which was earmarked for park and hence, he prays to dismiss the Writ Petition. 5. There cannot be any dispute that no person is supposed to encroach into the park or upon the space left for public purpose in the sanctioned lay out. In the counter affidavit, it is specifically stated that the disputed site is earmarked for park. But, the learned counsel for the petitioners contended that the petitioners are in possession and enjoyment of the property since a long time having purchased the same under a registered sale deed. But, at this stage, the petitioners have not shown the prima facie title to the property so as to claim the same. 6. Learned counsel for the petitioners placed reliance on a decision reported in Qamar Sultana and another V. Commissioner, Municipal Corporation of Hyderabad and others[1], wherein it was held thus: “From the above it is clear that in a case where a person claims to be owner of a particular piece of land the Municipality cannot remove the structures erected in that property without issuing a notice under Section 406 of the Act and Section 406 of the Act is the relevant Section and not Section 405 of the Act. It is true, though Section 405 of the Act enables the Municipality to remove unauthorized structures, but, it applies where there is no dispute about the ownership of the Municipality in respect of that property. I have ready referred to the averments made in the counter-affidavits according to which the first respondent claims that the property in question is the property of the third respondent, whereas the third respondent claims that it was already surrendered in favour of the Municipality for which they have not produced any evidence. In view of that the Municipality is not the owner of that property and, therefore, Section 405 of the Act is not applicable and it is only Section 406 of the Act that is applicable. Admittedly on the facts of this case no notice was issued and, therefore, the action of the first respondent in demolishing the structures is illegal, un- reasonable and without authority of law.” The above case has no application to the facts of the present case in view of the fact that the dispute therein is with regard to the title of the property. The petitioners therein filed a registered sale deed for claiming the property and further, it is not shown in that decision that the Municipality is the owner of the property. But in this case the Municipality is claiming the disputed site, which is earmarked for park and the same has not been denied or disputed. Further, the petitioners have not filed any registered sale deed to show that they got title to the property. Hence, the Writ Petition is devoid of merit and it liable to be dismissed. 7. Accordingly, the Writ Petition is dismissed duly vacating the stay granted by this Court on 11.02.2011. There shall be no order as to costs. _______________ K.C.BHANU, J DECEMBER 15, 2011. YVL THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.258 OF 2011 15.12.2011 YVL [1] AIR 1995 Andhra Pradesh 230