HONOURABLE SRI JUSTICE K.C.BHANU WRIT PETITION No.21783 of 2011 ORDER: Heard both sides. 2. This writ petition is filed for a Mandamus declaring the action of the respondents in demolishing the compound wall of the premises bearing No.8-2-644/1A, Road No.12, Banjara Hills, Hyderabad, belonging to the petitioner on 28.07.2011, as illegal and arbitrary. 3. The brief facts of the case that are necessary for disposal of the Writ Petition may be as follows: - The petitioner is the absolute owner and possessor of the property referred to above, and has been in continuous possession and enjoyment of the same ever since its purchase in the year 1982. He constructed the compound wall in pursuance of the permission accorded by the Special Grade Deputy Collector, Banjara Hills, Hyderabad. While so, on 28.07.2011, the respondents demolished the said compound wall without issuing any notice or giving prior intimation. Hence, he filed the present Writ Petition seeking to declare the action of the respondents in demolishing the compound wall of his premises as illegal and arbitrary. 4. The respondents filed counter-affidavit inter alia stating that the petitioner has not obtained any permission for any construction work from the Greater Hyderabad Municipal Corporation (for short ‘GHMC') and as such, the compound wall constructed by him is unauthorized, and that apart, it is constructed by encroaching the municipal road. Accordingly, the respondents have removed the compound wall of the petitioner along with other encroachments during mass encroachment removal drive conducted by the GHMC. 5. Learned counsel for the petitioner contended that without there being any notice, the compound wall of the petitioner, even if it is an encroachment, cannot be demolished highhandedly and therefore, the action of the respondents is illegal and the petitioner is entitled for damages. In support of his submissions, he relied upon the decisions which will be referred to at an appropriate time. 6. Learned Standing Counsel for the GHMC appearing for the respondents contended that as the petitioner constructed the compound wall encroaching the road, such portion of the wall which was found to be encroached was only demolished. Therefore, under Section 405 of the Greater Hyderabad Municipal Corporation Act, 1955, (for short ‘the Act’), no notice is necessary and hence, there are no grounds to interfere with the said action of the respondents. 7. According to the petitioner, he is the absolute owner and possessor of the land in Sy.No.129/17 admeasuring 147 square yards, having purchased the same under a registered sale deed on 30.11.1982 and since then he is in continuous possession and enjoyment of the said property. It is further stated that he has obtained permission from the Special Grade Deputy Collector, Banjara Hills, Hyderabad, to construct a compound wall vide proceedings, dated 25.08.1999 and in pursuance thereof, he constructed the compound wall. The said aspect has been specifically denied by the respondents in the counter-affidavit. 8. The question involved in this Writ Petition is whether the Commissioner is authorized to order demolition of a construction, building or compound wall if it is constructed on the municipal road, site or park by encroachment. 9. Section 405 of the Act reads as under: - “Commissioner may without notice, remove anything erected, deposited or hawked or exposed for sale in contravention of Act: - The Commissioner may, without notice, caused 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 on or upon 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 and any vehicle, package, box or any other thing in or on which such article is placed.” 10. As on today, the petitioner has not filed any permission accorded by the Greater Hyderabad Municipal Corporation, who is the competent authority, in order to construct the compound wall within the land purchased by him. 11. Learned counsel for the petitioner placed strong reliance on the decision of the Division Bench of this Court reported in M.Rajkumar V. Excise Superintendent[1], wherein it is held as under: - “We would like to consider the above two submissions principally made by the learned Standing Counsel for the Municipal Corporation of Hyderabad, in seriatim. The first submission made by the learned standing counsel for the Municipal Corporation that Section 405 empowers the Commissioner to take action without giving a notice first to the petitioner who has been carrying on his trade since 17.10.1990 in view of a license granted by the excise authorities, does not stand to reason. The essential feature of the case to substantiate this point seems to be as follows: - Under Section 405 what is really contemplated is that where the situation brooks no delay and where there is a clear element of urgency involved in the matter, for instance, if 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 has been erected or set up in or upon or over any street, any open channel, drain, well or tank, contrary to the provisions of the Act, then, obviously, it stands to reason that the Commissioner cannot be put to the trouble of giving notice in such matters, which call for immediate remedy to be resorted to remove the obstacle which has been created in the public interest.” Basing on the above judgment, learned counsel for the petitioner contended that only in case of urgency, the Commissioner can invoke the provisions of Section 405 of the Act so as to remove the encroachment, whereas the compound wall constructed by the petitioner has been in existence over a decade and therefore, the question of urgency does not arise. He further contended that it is note-worthy that the type of structure referred to in Section 405 (a) of the Act is any wall, fence, rail, post, step, booth or other structure. In other words, Section-405 (a) of the Act postulates that any structure whatever type it may be can be caused to be removed without any notice if it is constructed contrary to the provisions of the Act. The words used in Section 405 of the Act, however, do not indicate that the Commissioner can exercise the power to order removal of the structure in case of any element of urgency. 12. It is fundamental principle of law that no Court shall read the judgment given by any Court so as to nullify a statutory provision. The statute does not provide for invoking the powers by the Commissioner in case of urgency. In M.Raj Kumar’s case (1st cited), the power of the Commissioner to order demolition of the unauthorized structure by invoking the provisions of Section 405 of the Act has been discussed. Hence, the said case has no application to the facts of the case on hand. 13. Learned counsel for the petitioner also relied on the judgment of this Court in Mohd. Suleman V. S.O., Municipal Corpn. of Hyderabad[2], wherein it is held as under: - “In my considered view, Sec. 405 of the H.M.C. Act while it enables the Commissioner to direct removal of a structure or fixture erected or set up in or upon a street contrary to law, does not give a carte-blanche to the Commissioner to act without notice, in each and every case falling under Clause (a) of Section 405. The expression 'may' is significant . It imports an element of discretion confided to the designated statutory authority viz., the Commissioner. Removal without notice is not a 'must' in all cases despite the fact that the structure, etc. mentioned in Clause (a) of Section 405 had been erected in violation of the provisions of the Act. Far from casting a mandatory obligation to proceed without notice, the opening part of the section vests the Commissioner with discretion to proceed to take action without notice to the affected person. It is well settled that a discretionary power has to be exercised reasonably on a proper application of mind to the facts of the case. A discretion exercised casually and without application of mind to the relevant factors introduces an element of arbitrariness and strikes at the root of the exercise of power. Distortions or excesses in the exercise, of discretionary power have to be scrupulously avoided by the repository of power. Viewed from this angle, can it be said that in the instant case the Commissioner exercised the discretion in a reasonable manner after taking into account the relevant factors? On the facts of this case, I am unable to say that the Commissioner was justified in law in causing the structures in question to be removed without any notice. The wooden structures were erected by the petitioners more than a decade back to the full knowledge of the officials of the Municipal Corporation. It is the specific case of the petitioners that they obtained permission from the Corporation for the erection of the wooden 'Dabbas'. He also relied on the decision reported in Olga Tellis V. Bombay Municipal Corporation[3], wherein it is held as under: - “It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (‘Hear the other side’) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.” 14. In this case, the slum dwellers of Bombay city are said to have unauthorisedly occupied and erected structures on pavements so as to cause inconvenience to the pavement users. So, in the peculiar facts and circumstances of case, it is held that the principles of natural justice require that notice should be given to the affected parties. 15. Learned Standing Counsel appearing for the respondents relied on the judgment of this Court in Mohd. Miskinavelli V. Visakhapatnam Municipal Corporation[4], wherein it is held as under: - “It is therefore clear that if an encroachment is on a road, the Commissioner has power to remove the same by invoking the provisions of Section 405 of the Act even without notice.” 16. There is a slight difference between Sections 405 and 406 of the Act. As per Section 405 of the Act, the Commissioner has got power to remove encroachment if it is made unauthorisedly, without any notice, whereas under Section 406 of the Act, if a person makes unauthorized constructions on his own site, then in such a case, a notice is required to be given to him. 17. In the instant case, a part of the compound wall of the petitioner constructed encroaching the public road was already removed by the respondents-Corporation. Therefore, when the compound wall of the petitioner was already removed, the question of issuing direction to the respondents to follow the due process of law, even assuming for a moment that a notice is required under Section 405 of the Act, does not arise. At best, the petitioner can claim damages, provided he proves that he is the owner of the disputed property. When the action of the respondents is found to be illegal, then only the petitioner is entitled for damages. If the construction is found to be made by encroaching the road, certainly the petitioner is not entitled to any damages. 18. It is the specific case of the respondents that the petitioner encroached on the public road. Therefore, when serious disputed questions of fact viz., whether the petitioner allegedly encroached on the road and constructed the compound wall and whether the petitioner is the owner of the land on which the compound wall is constructed by him are involved, the same cannot be adjudicated and decided by this Court exercising its jurisdiction under Artilce-226 of the Constitution of India. 19. For the foregoing reasons, the Writ Petition is devoid of merits and is, accordingly, dismissed. There shall be no order as to costs. ___________________ JUSTICE K.C.BHANU 08thNovember 2011 DR [1] 1991(1) ALT 653 [2] AIR 1994 AP 275 [3] (1985) 3 SCC 545 [4] 2003(2) ALD 541