IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 25546 of 2001 BETWEEN: B. Srinivasulu S/o. Late B. Chinna Munnaiah, R/o. Plot No. I/B, M.L.A.'s Colony, Road No.12, Banjara Hills, Hydederabad-34. ... PETITIONER AND The Commissioner, Municipal Corporation of Hyderabad, M.C.H. Buildings, Hyderabad. ...RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondent in issuing the proceedings No.5322/TPS/ACP/C5/IV 8/2001 dt.12.12.2001 in directing the petitioner to remove the structures of Compound Wall and room in the rear side of petitioner's Plot No.1/B, M.L.A.'s Colony, Road No.12, Banjara Hills, Hyderabad, as illegal and arbitrary and consequently set aside the same; pass such other order or orders. Counsel for the Petitioner: MR.D.SUDARSHAN REDDY Counsel for the Respondent: SMT.KALPANA EKBOTE The Court made the following: ORDER: Heard the learned counsel for the petitioner as well as the learned Standing Counsel for the respondent. 2. Petitioner submits that he is a member of Sri Venktateswara Co-operative House Building Society (for short ‘the Society’) and he was allotted Plot No.1/B admeasuring 900 sq. yards, which was registered vide registered sale deed dated 25.02.1983 executed by the Society. Thereafter, the petitioner obtained sanction for construction of residential house from the respondent vide File No.555/Open/8/84 and Permit No.62/63 dated 29.11.1984 and he constructed the house in accordance with the sanction plan and residing therein since 1986. While so, the respondent issued a notice under Section 405 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) in Sl.No.45, Book No.40 dated 12.12.2001 in proceedings No.5322/TPS/ACP/C5/IV8/2001 stating that the petitioner constructed the compound wall and room constructed on the open space of the park area of the layout of the Society and accordingly, requested to remove the encroachment. Petitioner submits that the said notice was issued without giving any opportunity. 3. No counter is filed. 4. Learned Standing Counsel appearing for the respondent submits that though the said order was issued directing the petitioner to remove the encroachment within twenty four hours, it is stated that the Commissioner is entitled to issue such final notice under Section 405 of the Act without giving any opportunity. 5. I am of the opinion that in certain cases wherever there is urgency to remove the channel drain, tank etc. depending upon the exigencies and circumstances, the Commissioner can initiate action but in the instant case, the petitioner constructed the compound wall and room on the open space of park area of the layout of the Society; more so the show cause notice do not indicate any particulars of the existence of the encroachment and the construction of a room. However, the petitioner submits that he constructed the said house within the plotted area but he did not encroach any land. 6. Having regard to the facts and circumstances of the case and as the said notice is bereft of any material particulars, the impugned notice is set aside giving liberty to the respondent to issue a fresh show cause notice calling upon the petitioner as to why the compound wall and a room said to have been constructed by him in the park area shall not be removed and thereafter pass appropriate orders in accordance with law. The writ petition is accordingly allowed. There shall be no order as to costs. ______________ V. ESWARAIAH, J April 10, 2008 DSK