IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.12146 OF 2010 Date:31-10-2011 Between: Varanasi Kameswararao … Petitioner And The Greater Visakhpatnam Municipal Corporation, Rep. by its Commissioner. … Respondents HONOURABLE SRI JUSTICE K.C. BHANU WRIT PETITION No.12146 OF 2010 ORDER: This Writ Petition is filed under Article 226 of the Constitution of India seeking a writ of Mandamus directing the respondent to restore the pan shop of the petitioner within the place where it was situated earlier with a permission to continue the pan shop business, declaring the action of the respondent in removing the pan shop of the petitioners as illegal and unlawful. 2. The brief facts that are necessary for disposal of the writ petition may be stated as follows: The petitioner is the owner of ‘Kalyani Pan Shop’ situated at Seethammadhara, Visakhapatnam and he is regularly paying the required licence fee and other taxes to the respondent Corporation. Electricity connection was given to the shop. It is the only source of income tot he petitioner. The shop is situated on the road side and the same is not causing any hindrance to the traffic or not hazardous the local residents. On 26-12-2009, the officials of the respondent tried to remove the shop and evict the petitioner forcibly, without issuing any notice and without following the due process of law. With the timely intervention of the local people, the officials of the respondent left the place openly proclaiming that they would return with more men and power and would remove the shop. Hence, the petitioner filed O.S. No.31 of 2010 on the file of the IV Additional Junior Civil Judge, Visakhapatnam for the relief of permanent injunction against the respondent. Even though there is an order of status quo passed by the learned IV Additional Junior Civil Judge, the officials of the respondent removed the pan shop of the petitioner. Hence this writ petition. 3. A detailed counter – affidavit has been filed by the respondent stating that an online complaint was received by the Corporation from the Hill View Park Senior Citizens Forum, Seethammadhara NE stating that the said shop was causing obstruction for free flow of traffic and that the local residents were facing sereve trouble and requested to remove the said pan shop. After receiving the said complaint, the officials of the respondent Corporation visited the shop and found that the petitioner was the encroacher of the road side margin, that the customers of the shop were parking their vehicles on the road side and causing obstruction for free flow of the traffic. Therefore, the shop was removed on 27-11-2009, but not on 22-01- 2010 as alleged by the petitioner. Suppressing removal of the shop on 27-11-2009, the petitioner filed the suit and also the present writ petition. 4 . Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent. 5. Learned counsel for the petitioner contended that since the petitioner is paying the Tax to the Municipality, a notice could have been given to him under Section 406 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘HMC Act’) and without there being any notice, the pan shop was removed illegally and therefore, he prays to issue a direction to the respondent to restore the pan shop in the original condition when it was removed. 6 . On the other hand, learned counsel appearing for the respondent contended that the pan shop was removed on 27-11-2009 and that the question of restoration to the original position may not arise in view of the fact that the petitioner has no right, that he occupied the road side margin and therefore, he prays to dismiss the writ petition. 7. The contention of the petitioner is that he purchased the pan shop, which is on the side of the road margin. He is not having any right, title or interest over the said site. Therefore, even if any illegal construction is made by him in the road side margin, the petitioner does not have any right over it. The case of the petitioner is that he is paying temporary tax to the Municipality. But, that does not confer any right to the petitioner to continue in the premises. 8. Section 405 of the Hyderabad Municipal Corporation Act reads as follows: “405. Commissioner may without notice, remove anything erected, deposited or hawked or exposed for sale in contravention of Act:-- The Commissioner may, without notice, cause to be removed--- a. any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature, or any fixture which shall be erected or set up in or over any street, any open channel, drain, well or tank, contrary to the provisions of this Act; b. any stall, chair, bench, box, ladder, board or shelf, or any other thing whatever placed, deposited, projected, or suspended, in, upon, from or to any place in contravention of this Act; c. any article whatsoever hawked or exposed for sale in a public place or in any public street in contravention of the provisions of this Act any vehicle, package, box or any other thing in or on which such article is placed.” From the above provision, it is clear that where the fixtures connected in a public place, the Commissioner is competent to remove the same without any notice. Whereas the learned counsel for the petitioner contended that under Section 406 of the HMC Act, the Commissioner has to give a written notice for removal of unauthorized structures. Section 406 of the HMC Act applies only when the petitioner claims to be the owner of the particular piece of land. In such cases, written notice under Section 406 of the HMC Act is required calling upon to give explanation. But, in this case, the petitioner is not claiming ownership over the land in which the pan shop was in existence. In such circumstances, no notice under Section 406 of the HMC Act is required for removing or pulling down the unauthorized structures. Even otherwise, the prayer in the writ petition is that to restore the pan shop within the place where it was situated earlier with a permission to continue the pan shop business, cannot be granted because a Mandamus cannot be given to the respondents to act contrary to the law. 9 . The Writ Petition is devoid of merits and is, accordingly, dismissed, leaving it open to the petitioner to avail the remedies available to him under law. There shall be no order as to costs. ____________ K.C. BHANU, J October 31, 2011. KTL