JUDGMENT
C.Y. Somayajulu, J
1. This Writ Petition is filed for a declaration that the action of the respondent in demolishing the huts situated at Murlidhar Street, Bowdara Raod, Visakhapatnam is illegal and contrary to the provisions of the Municipal Corporation Act and violative of Article 21 of the Constitution of India.
2. The case, in brief, of the petitioners is that they erected huts in Murlidhar Street, Visakhapatnam about 35 years back and are doing business therein by paying taxes to the respondent Corporation and when the respondent Corporation tried to demolish the structures without notice they filed O.S.No. 854 of 1996 on the file of the Principal Junior Civil Judge, Visakhapatnam, which, after contest, was decreed on 7.1,1999 and that decree has become final and in spite of that decree the respondent is threatening to evict the petitioners.
3. When the Writ Petition came up for admission on 2.1.2003 before my learned brother the learned Counsel for the respondent Corporation wanted to ascertain whether any notice as contemplated by the Land Encroachment Act or Municipal Corporation Act was sent to and received by the petitioners, and sought time. So the matter was posted by my learned bother to 9.1.2003 from 2.1.2003. On 9.1.2003 it was reported by the Standing Counsel for the respondent, on instructions, that the respondent has removed the encroachments in exercise of powers under Section 405 of the Municipal Corporation Act, and that fact was disputed by the learned Counsel for the petitioner. So the matter was adjourned to this date.
4. Heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondent.
5. The contention of the learned Counsel for the petitioner is that since the petitioner obtained decree against the respondent, the respondent is bound by the decree and contended that when the respondent collected tax and licence fee from the petitioners, it has no right or authority to dispossess the petitioners from the premises without due notice and that Section 405 of the Municipal Corporation Act has no application and it is Section 406 of the Municipal Corporation Act that applies to the facts of this case. His further contention is that since admittedly the petitioners are in possession of the property for more than 35 years, they, as per the provisions of the Land Encroachment Act, are entitled to notice and hence the high handed act of the respondent in trying to demolish the structures of the petitioners without notice is highly arbitrary and is violation of the principles of natural justice and fair play.
6. The contention of the learned Standing Counsel for the respondent is that since the petitioners encroached the road and raised structures, the residents of the locality had made a complaint that they are finding it difficult to make use of the road, and so the Commissioner, by virtue of the power vested in him under Section 405 of the Municipal Corporation Act, got removed the encroachments. It is also his contention that the petitioners who were provided alternative sites for their residence had after occupying the alternative sites given to them restarted their unsocial activity of encroaching the street, causing obstruction to the free flow of traffic, and so petitioners are not entitled to any relief.
7. It is no doubt true that the petitioners filed OS No. 854 of 1996 in which the decree passed is as under:
“That the permanent injunction is hereby granted restraining the Corporation and its
officials from evicting the plaintiffs except by a process known to law.”
8. From the decree it is clear that the injunction only restrains the respondent from evicting the petitioners “except by a process known to law”. So there is no impediment under the decree for the respondent evicting the petitioners by a process known to law.
9. Section 405 of the Municipal Corporation Act reads:
“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 on or upon 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.”
10. It is therefore clear that if an encroachment is on a road the Commissioner has power to remove the same by invoking the provisions of Section 405 of the Act even without notice.
11. The material papers filed along with Writ Petition show that the second petitioner paid encroachment fee for the year 2001-2002 and the first petitioner paid encroachment fee on 12.2.1996 and one
P. Satyavathi, who is not a petitioner herein, paid encroachment fee on 1.2.1994 for running a tea stall. No doubt the petitioners also filed some bills showing that they paid electricity charges to APEPDC Limited, Visakhapatnam, but they relate to period 6/2002 to 7/2002, 2/2002 to 3/2002, 4/2000 -5/2000 and 2/2002 to 3/2002, i.e., long subsequent to the petitioners obtaining a decree on 7.1.1999. So payment of electricity charges by the petitioners, per se does not create right in them to continue the encroachments on the road. Since some of the petitioners have paid encroachment fee, it means that they have acknowledged that they are encroachers. The payment of licence fees only gives a licence to continue the encroachment till the expiry of the period for which the licence fees was paid. After expiry of that period they would be encroachers, and cease to be licensees. Since the encroachment fee paid by two petitioners is for the year 2001-2002 only, they ceased to be the licensees from 1.4.2002, therefore, the Commissioner has power under Section 405 of the Municipal Corporation Act to evict encroachments even without issuing notice. Therefore, the power exercised by the respondent to remove encroachments made by the petitioners, especially when they are said to be causing obstruction of free flow of traffic, and when they are said to have occupied the alternative sites provided to them cannot be interfered with by this Court by exercising power under Article 226 of the Constitution.
12. Therefore, I find no merit in the Writ Petition and therefore, the same is dismissed with costs.