THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.23096 of 2011 Date:17.08.2011 Between: Palle Srinivasa Rao And eight others. ..... Petitioners AND The Greater Visakhapatnam Municipal Corporation, reptd., by its Commissioner, Visakhapatnam and another. .....Respondents Counsel for the Petitioners : Sri K.Jyothi Prasad For Sri K.Sarvabhouma Rao Counsel for Respondents : Sri N.Ranga Reddy, Standing Counsel for GVMC The Court made the following: ORDER: This Writ Petition is filed for a Mandamus to declare the action of the respondents in attempting to demolish the structures belonging to the petitioners in premises bearing D.Nos.32-1-8/7, 32-1-8/8, 32-1-8/6, 32-1-8/5, 32-4-57/2, 32-1-8/4, 32-1-8 and 32-2-13/1 of Tunglaam Revenue Village, Natayyapalem Village, Gajuwaka Mandal, Visakhapatnam District, as illegal and arbitrary. The petitioners are in possession of small extents of land over which they have raised constructions and are residing therein. The petitioners filed Writ Petition No.22302 of 2011 apprehending demolition of their houses. The said Writ Petition was disposed of by recording the submission of the learned Standing Counsel for Greater Visakhapatnam Municipal Corporation that the petitioners have constructed the buildings without obtaining prior permission from the respondents; that a survey was conducted before contemplating further action; and that before proceeding further against the alleged unauthorised constructions, the respondents will follow due process of law under the provisions of the Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’). The respondents have subsequently issued the impugned notices to the petitioners purportedly under Sections 405 and 406 of the Act. At the hearing, learned counsel for the petitioners submitted, and in my view rightly, that the said provisions have no application whatsoever for removal of unauthorised constructions. It is useful to reproduce these two provisions in this context, which are as under: - “Section 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) (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. Section 406- Power to require removal of a structure or fixture erected or set up: - The Commissioner may, by written notice, require the owner, occupier of any premises contiguous to, or in front of, or in connection with which any wall, fence, rail, post, step, booth or other structure or fixture which it would be unlawful to erect or set up under this Act has been erected or set up to remove the said wall, fence, rail, post, step, booth or other structure or thing: Provided that, if any such case the structure or fixture shall have been lawfully erected or set up, compensation shall be paid by the Commissioner to every person who sustains loss or damage by the removal or alteration thereof.” A reading of these two provisions would show that they apply to cases where anything was erected, deposited or hawked or exposed in or over any street, open channel, drain, well or tank etc., or at a place contiguous to the premises of the person who has so erected the things such as wall, fence, rail, post, step, booth or other structures. A reading of the impugned notices would show that the petitioners have allegedly encroached the ‘rastha poramboke’ in Sy.No.156/21 and 167/1 of Tunglam Village and erected AC sheet sheds. If the respondents seek to remove such constructions, they are required to take recourse to the procedure prescribed under Sections 452 and 636 of the Act. As this procedure is not followed by the respondents, the impugned notices cannot be sustained and they are accordingly quashed. The respondents are, however, given liberty to follow proper procedure under the provisions of Sections 452 and 636 of the Act for removal of the alleged illegal constructions. With the above observations, the Writ Petition is allowed. As a sequel to disposal of the Writ Petition, W.P.M.P.No.28251 of 2011 filed by the petitioners for interim relief is disposed of as infructuous. __________________________ C.V.NAGARJUNA REDDY, J 17th August, 2011 DR