IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 13849 of 2002 Between: Smt. Zareena begum, W/o. Mohd. Kursheed Ali, R/o. H.No. 12-2-342/A/4/5, Syed Aliguda, Hyderabad. ..... PETITIONER AND 1 Municipal Corporation of Hyderabad, REp. by its Commissioner, Tankbund Road, Hyderabad. 2 Assistant City Planner, Circle No.IV, MCH, Khairtabad, Hyderabad. .....RESPONDENT(S) 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 to issue a Writ of Mandamus to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus to declare the notice dated 25-7-2002 issued by the 2nd Respondent herein as illegal, unjust and arbitrary, consequently the premises No.12-2-342/A/415 pursuant to the notice dated 25-7-2002 issued by the 2nd Respondent herein and pass Counsel for the Petitioner:MR.P.NARSING RAO Counsel for the Respondent No.1: G.P. FOR MUNICIPAL ADMINISTRATION Counsel for the Respondent No.2: MR.RAMA RAO GHANTA The Court made the following : ORDER: The petitioner seeks to issue a writ of mandamus declaring the notice, dated 25.07.2002 issued by the second respondent, as illegal and arbitrary. Heard the learned counsel for the petitioner. It is the case of the petitioner that he purchased house bearing No. 12- 02-342/A/4/5 comprising of 87 square yards situated at Syedaliguda, Hyderabad under a notarized agreement of sale, dated 16.05.1995 and since then he has been in possession and enjoyment of the property by paying the property tax. While so, the second respondent has issued a notice, dated 20.10.2000 under Section 636 of Hyderabad Municipal Corporation Act (for short ‘HMC Act’) for removal of ground floor without issuing any prior notice under Section 452 of the HMC Act and accordingly he has questioned the said notice by filing a civil suit O.S.No.5462 of 2000 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad on 23.10.2000 and obtained interim injunction restraining the respondents from interfering and demolition of the plaint schedule property. It is stated that the said suit was ultimately dismissed on 02.05.2002 and pursuant to the dismissal of the said suit, the second respondent issued the present notice, dated 25.07.2002 calling upon the petitioner to remove the unauthorized construction. The petitioner questioned the said notice contending that he is the owner of the said house and he is not an encroacher and therefore, the respondents are not entitled to demolish the said house. A counter has been filed by the second respondent stating that one Syed. Abdul Wahid Khadri filed a W.P.No.26313 of 2001 and obtained interim orders for protecting the land from any encroachments and subsequently he also filed a case in C.C.No.447 of 2002 against the government as well as the second respondent stating that the second respondent is not taking any steps for protecting his land and the same is pending adjudication. Therefore, a notice was issued in 2000 under Section 636 of HMC Act asking the petitioner to remove the structures as the same was constructed without any permission of the Corporation. Aggrieved by the said notice, the petitioner filed O.S.No.5464 of 2000 on the file of the VI Junior Civil Judge, Secunderabad and obtained interim injunction and ultimately the said suit was dismissed on 08.03.2002 on the ground of default. After dismissal of the said suit, the present notice has been received on 25.07.2002 asking the petitioner to remove the entire constructions as the same has been made by encroaching into the land in Sy.Nos.54 and 55 of Syed. Aliguda, Hyderabad without having permission from the respondents. It is stated that there is no title or conveyance deed in favour of the petitioner. In the circumstances of the case, I am of the opinion that the petitioner having filed the civil suit before the civil Court seeking the same relief and when the suit has been dismissed, it cannot be said that the said notice is illegal and arbitrary. Admittedly, the petitioner has not obtained any permission from the respondents for construction of the house and therefore, any construction made without permission is liable to be demolished. Having regard to the facts of the case, the petitioner is not entitled for any relief. Hence, the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ______________ V.ESWARAIAH, J. Date:25.04.2008 Ccm To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KRD}