IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 12079 of 2008 Between: Chilmakuri Rama Swamy S/o.late Ch Nagappa R/o. H.No.4482 Vidyut Nagar MIG Phase2 BHEL Ramachandrapuram Hyd-AP ..... PETITIONER AND 1 The G.H.M.C Rep.by its Commissioner and Special Officer Hyderabad-AP 2 The G.H.M.C rte.by its Deputy Commissioner Circle No.12 Chanda Nagar Serilingampally R.R District .....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 issue an appropriate writ of Mandamus order or handedly from the plot of petitioner in Sy.No.207/A extent 390 sq.yds situated at the then Village, Chandra Nagar,Talaq West R.R Dist now Serilingampally Hyderabad as illegal, arbitary, unjust discriminatory unreasonable without jurisdiction opposed to public policy violative of Fundamental Rights guaranteed under Art 14 21.300-A of constitution of India and also violative of principles of natural justice and issue consequential directions a) not to dispossess the petitioner from this polt No.in Sy.No.207/A extent 390 sq.yds situated at the them Village, Chandra Nagar Taluq West R.R Dist now Serilingampally Hyderabad without due process of law b) to erect the fencing wire around the petitioner's Plot at the cost of respondents and award the costs. Counsel for the Petitioner : MR. K.M.MAHENDER REDDY Counsel for the Respondents : SMT. KALPANA EKBOTE The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.12079 of 2008 ORDER : The petitioner claims to be owner and possessor of a plot admeasuring 390 sq. yards situated in Sy.No.207/A of Chandanagar, Rangareddy District, having purchased the same under a Registered Sale Deed, dated 12.03.1979. This writ petition is filed seeking a declaration that the alleged action of the respondents – Greater Hyderabad Municipal Corporation – in demolishing the fenced wire around the petitioner’s plot high- handedly as arbitrary and illegal and consequently for directions not to dispossess the petitioner from the said plot without due process of law. The petitioner also seeks a further direction to the Corporation to erect the fencing wire around the petitioner’s plot at the cost of the Corporation. In the counter-affidavit filed on behalf of the Corporation, it is stated that since the petitioner had encroached into the road to an extent of 43 feet x 53 feet and fenced the plot duly encroaching upon the road portion, after inspection by the executive authority of Serilingamaplli Circle, the fencing was removed departmentally thereby restoring the road portion. It is also stated that the said action was initiated on a complaint made a neighbour by name Damodar Reddy and no damage was caused to the property of the petitioner. However, in his reply affidavit the petitioner disputed the stand taken by the Corporation and contended that when he had purchased the plot in question under the Registered Sale Deed dated 12.03.1979 Chandanagar was only a Gram Panchayat and subsequently a Master Plan was prepared and approved by the Government vide G.O.Ms.No.353, dated 30.05.1980. It is alleged that the 150 feet wide road claimed by the Corporation was shown in the Master Plan only on paper and at any rate no road can be laid without acquisition of the petitioner’s plot following due process of law. It is further claimed that in the year 1979 the road was only 18 feet to 25 feet wide and it was not 150 feet as alleged by the Corporation. It is also alleged that the 150 feet wide road as claimed by the Corporation was never laid to the East of the petitioner’s plot leading to Amdipuram and therefore the allegation that he had encroached upon the road is absolutely false. Thus it is contended that the respondents are bound to pay compensation as per law for the illegal and high-handed action in removing the fencing. I have heard the learned counsel for both the parties. Though the fact that the petitioner had purchased the 390 sq. yards of plot in the year 1979 is not disputed, the specific case of the Corporation is that the petitioner had recently encroached upon the road portion to an extent of 43 feet x 53 feet while fencing the plot. It is the case of the Corporation that one of the neighbours submitted a petition with regard to the encroachment made by the petitioner and pursuant thereto after due inspection by the executive authority, the encroachment was removed and the road portion was restored. It is also the specific case of the Corporation that 150 feet wide road is existing upon which the petitioner had made the encroachment. The learned Standing Counsel while relying upon Section 405 of the Hyderabad Municipal Corporations Act, 1955, submits that the Commissioner is competent to remove such an encroachment even without notice. The petitioner’s claim that as on the date of his purchase the road existing was only 18 to 25 feet wide and either the Municipality or the Corporation had never formed the 150 feet wide road as per the approved Master Plan dated 30.05.1980 are all disputed questions of fact which cannot be enquired into by this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India. Hence, a finding as such cannot be recorded in favour of the petitioner that he never encroached upon the public road. Consequently, there cannot be a direction to the Corporation to pay the compensation as claimed by the petitioner. However, it is always open to the petitioner to work out the appropriate common law remedy before the competent forum for redressal of his grievance. If any such proceedings are initiated the same shall be decided on merits uninfluenced by any of the observations made in this order. With the above observations, the Writ Petition is dismissed. No costs. ______________ G. ROHINI,J. Dt. 06.07.2009 gbs