O R D E R This Court ordered Notice before admission on 24-11-2006. Sri Ganta Rama Rao, the learned standing Counsel had taken notice. Status quo was ordered for a limited period. 2. The Writ Petition is filed for a writ of mandamus declaring the action of the respondents in trying to demolish the premises bearing 22-7-145 (5.44 sq. yards), Aligunj Pattargatti, Hyderabad under the guise of clearing footpath as illegal and to pass such other suitable orders. 3. Sri Francis, the learned Counsel representing the writ petitioner would submit that the petitioner in fact purchased the property, the subject matter of the Writ Petition and inasmuch as the petitioner is the owner of the property in question the question of encroaching into the road or removal of such encroachment would not arise at all. The learned Counsel also would submit that the action of the respondents in trying to demolish the premises in question in a highhanded manner without even putting the petitioner on notice in the facts and circumstances would not be just and proper. 4. Per contra Sri Ganta Rama Rao, the learned standing Counsel representing the respondents would submit that the Hyderabad Municipal Corporation had initiated this action under Section 405 of the Hyderabad Municipal Corporations Act 1955 and inasmuch as this is a clear case of encroachment, no prior notice is necessary and hence the Writ Petition to be dismissed. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 5. The case of the writ petitioner is that he is the owner of premises bearing No.22-7-146, Ali Gunj Pattargatti, Hyderabad admeasuring 5.44 sq. yards which was purchased by the him from one Gaffor Ahmed under a registered sale deed dated 15-1-1981 under document No.2242/1981 and in the said premises he is running a fancy lungi store since several years and it is the only source of his living. It is also stated that due to the recent policy directions of the respondents to widen the road and to clear hawkers from the foot paths in commercial localities the respondents had taken active drive to implement the same pursuant to the directions of this Court and under the guise of objective of clearing the hawkers from the footpath the respondents with an oblique motive are now contemplating to demolish the petitioner’s premises under the guise of clearing the footpath. Specific stand is take that the petitioner is not a squatter on the footpath nor he is running the business on the footpath and hence the respondents cannot illegally remove the petitioner or demolish the property in question under the guise of clearing the footpath. Specific stand is taken that unless the due process of law is followed in this regard, the respondents cannot resort to the present demolition activity. 6. The learned standing Counsel on instructions would submit that as far as the property covered by the sale deed is concerned, there cannot be serious controversy but on verification it is found that the petitioner in fact encroached upon the road and hence the same can be removed even without putting the writ petitioner on notice. 7. It may be appropriate to have a look at Section 405 of the Hyderabad Municipal Corporations Act 1955 in this regard. The said provison dealing with Commissioner may without notice, remove anything erected, deposited or hawked or exposed for sale in contravention of Act, reads as hereunder: 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 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) 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. Before taking up further discussion in relation to this provision Section 405 of the Act referred to supra, it may be appropriate to have a look at Section 406 of the said Act also and the said provision dealing with Power to require removal of a structure or fixture erected or set up reads as hereunder : “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, in 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.” Certain submissions were made in relation to the distinction to be drawn in between Section 405 and Section 406 of the aforesaid Act and further submissions were made that in several cases it would be difficult to draw a clear line in between the encroachments or otherwise. In other words, the stand taken by the learned standing Counsel representing the Municipal Corporation is that even such persons who are encroachers, for the purpose of delaying the removal of encroachments, may take a stand that such property is their property and in such cases also if issuance of notice to be made a condition precedent or mandatory it would be very difficult for the Corporation to discharge its duties of clearing the encroachments on road margins. 8. There cannot be any two opinions about these difficulties, but equally it is pertinent to note that there may be cases where the citizens who are in peaceful possession of their property, for certain reasons, may be disturbed by the Municipal Corporation without following the due procedure. The language employed in Sections 405 and 406 of the Act aforesaid being self-explanatory, the scope and ambit thereof need not be further discussed. The language employed in Sections 405 and 406 of the Act aforesaid being self-explanatory, the scope and ambit thereof need not be further discussed. In the present case it is pertinent to note that the writ petitioner is claiming the property in question under a registered sale deed and in fact a copy of the said sale deed also is produced before this Court. However, specific stand is taken by the respondents that apart from the property covered by the sale deed, some further encroachment is there and hence the Municipal Corporation is at liberty to remove such excess portions of encroachments on the road margin. Strong reliance was placed on a decision of this Court in MOHD.MISKINAVELLI AND OTHERS VS. VISAKHAPATNAM MUNICIPAL CORPORATION (1) wherein a learned Judge of this Court while dealing with Section 405 of the Hyderabad Municipal Corporation Act and Section 7 of Visakhapatnam Municipal Corporation Act 1979 observed that where the petitioners are occupying portions of road and paying encroachment fees, the Corporation is entitled to evict them even without issuing any notice and the mere fact that the petitioners have been paying electricity charges and had obtained licences for their trade does not confer any right to continue to stay in the encroached area. On facts it is clear that the encroachment as such is not a disputed question in the said case. Reliance also was placed on a decision of another learned Judge of this Court in QUMAR SULTANA VS. THE COMMISSIONER, MUNICIPAL CORPORATION OF HYDERABAD AND ANOTHER(2) wherein the learned Judge while dealing with the scope and ambit of Sections 405 and 406 of the Hyderabad Municipal Corporations Act 1955 held at paras 8, 9 and 10 as hereunder : “From the above it is clear that in a case where a person claims to be the owner of a particular piece of land the Municipality cannot remove the structures erected in that property without issuing a notice under Section 406 of the Act and Section 406 of the Act is relevant Section and not Section 405 of the Act. It is true, though Section 405 of the Act enables the Municipality to remove unauthorized structures, but, it applies where there is no dispute about the ownership of the Municipality in respect of that property. It is true, though Section 405 of the Act enables the Municipality to remove unauthorized structures, but, it applies where there is no dispute about the ownership of the Municipality in respect of that property. I have already referred to the averments made in the counter affidavits according to which the first respondent claims that the property in question is the property of the third respondent, whereas the third respondent claims that it was already surrendered in favour of the Municipality for which they have not produced any evidence. In view of that the Municipality is not the owner of that property and therefore Section 405 of the Act is not applicable and it is only Section 406 of the Act that is applicable. Admittedly on the facts of this case no notice was issued and, therefore, the action of the first respondent in demolishing the structures is illegal, unreasonable and without authority of law. I may also point out that the first respondent acted highhandedly in demolishing the structures. The application filed for the construction of the multistoreyed flat was sanctioned as long ago as in 1980. Thereafter no steps were taken for the purpose of widening the road. It is true that the first respondent claims that in an effort to streamline the traffic and relieve the congestion at Panjagutta junction they proposed to widen Kapadia lane. The power of the first respondent to widen the road is undisputed. However, while widening the road first respondent has to ascertain whether the property belongs to it, and if it does not belong to it and in case the widening of the road affects the property rights of third persons, it cannot high-handedly demolish the structures without following the procedure under Section 406 of the Act.” 9. Right to property though not a fundamental right, is a legal right protected by the Constitutional provision Article 300-A of the Constitution of India. The Legislative provisions referred to supra can be resorted to only in the case of encroachments without following the principles of natural justice and without affording opportunity to the aggrieved party. In this case, there is clear assertion that the property in question is the private property of the writ petitioner and it is not an encroachment at all. The Legislative provisions referred to supra can be resorted to only in the case of encroachments without following the principles of natural justice and without affording opportunity to the aggrieved party. In this case, there is clear assertion that the property in question is the private property of the writ petitioner and it is not an encroachment at all. May be, in several cases it may be a disputed question of fact, but in the light of the material placed before this Court, this Court is of the considered opinion that the respondents cannot be permitted to pull down or resort to demolition activity of such structures in the private property unless and until the petitioner is put on notice. It is pertinent to note that the specific stand taken by the Municipal Corporation is that certain portions partly had been encroached and they are encroachments on to the road. This is a matter to be verified by the respondents. It is needless to say that in the peculiar facts and circumstances, the impugned action cannot be sustained since the respondents are bound to follow the procedure and in view of the same, the respondents are hereby directed to put the petitioner on notice, give the petitioner an opportunity of hearing in this regard and satisfy whether at least the portions or encroached portions would fall within the property covered by the registered sale deed referred to supra and further proceed in accordance with law. It is needless to say that till this exercise is made, status quo obtaining as on today to be maintained. 10. Accordingly with the above directions, the Writ Petition is disposed of. No costs. --X—