HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION Nos. 15061 and 15109 OF 2010 DATED 4th SEPTEMBER, 2014.
BETWEEN Kandula Ramesh Reddy ……Petitioner in WP.No. 15061 of 2010 Atchuta Omkar Gupta ……Petitioner in WP.No. 15109 of 2010 and The Executive Engineer, R& B, Kanigiri, Prakasam District and others.
…..Respondents in both WPs.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION Nos. 15061 and 15109 OF 2010 COMMON ORDER:
Inasmuch as the petitioners in these two Writ Petitions challenge the action of the respondents in threatening to demolish their premises without following due process of law, they are heard together and being disposed of by this common order.
Writ Petition No. 15061 of 2010:
The petitioner states that he is the absolute owner and possessor of the house premises bearing D.No.9-256 and 9-257 situate in 9th ward of Kanigiri village and Gram panchayat, Kanigiri mandal, Prakasam District having purchased the same from its lawful owner under a registered sale deed dated 5.9.1979. While so, on 20.6.2010, the respondents came to the above premises and threatened the petitioner to demolish the same. In the circumstances, he filed the present Writ Petition.
Writ Petition No.15109 of 2010:
The petitioner states that he is the absolute owner and possessor of the house premises bearing D.No.9-254 situate in 9th ward of Kanigiri village and Gram Panchayat, Kanigiri mandal, Prakasam District having purchased the same from its lawful owner under a registered sale deed dated 3.8.1998. He further states that his vendor purchased the said property in the year 1945 and the vendor of his vendor purchased the same in the year 1931. While so, the respondents came to the aforesaid premises on 20.06.2010 and threatened the petitioner to demolish the same without assigning reasons. In the circumstances he filed the present Writ Petition.
The second respondent filed counter affidavit in Writ Petition No.15061 of 2010 stating that the Kanigiri-Gudipadu- Kothapalem road (Garlapet road) is an important rural road and the same was handed over to the Road and Buildings Department in the year 1999 by Zilla Parishad. In the year 2007 cement road was laid in the town limits i.e. in Cheppulabajar. One T.Narasaiah of Kanigiri informed that Mr. Devaki Venkateswarlu Deputy Sarpanch of Kanigiri had started construction of pucca building adjacent to R& B road and requested to clarify whether there is encroachment in the R&B road. In view of the above, the Tahsildar of Kanigiri was requested to depute a surveyor and fix the boundaries so as to give a reply. Thereupon, boundaries were fixed and reply was issued under the provisions of the Right to Information Act. The said Devaki Venkateswarlu filed Writ petition No. 13409 of 2010 before this Court and obtained interim order not to demolish the shops without following the due process of law. It is further stated that a street survey was conducted for the aforesaid road in the year 1921 and as per the records available with Executive Officer of Kanigiri Panchayat, it was revealed that by that time, no building was existing. It is further stated that in the said street survey, Street Survey Nos. 42 and 43, the road was encroached by the petitioner in Writ Petition No.15061 of 2010 duly constructing a RCC building and made the road narrow and dangerous to the traffic. The Tahsildar vide his letter dated 22.6.2010 informed that an extent of 0.3 cents was encroached by the petitioner in the street survey No. 42/2 and in view of the same, a notice was issued to the petitioner on 17.7.2010 requesting him to vacate the encroached portion by 30.07.2010. It is also stated in the counter affidavit that they have not attempted to demolish the shops without issuing notice and contrary to the procedure prescribed under the law and that the Writ Petition was filed only to prevent the respondents from initiating action for eviction from the encroached portion of the shop building. It is stated that only after issuing notice as required under the provisions of the AP Land Encroachment Act, 1904, necessary action will be initiated.
No counter affidavit is filed by the second respondent in Writ Petition No. 15109 of 2010.
The fourth respondent filed separate counter affidavits in both Writ Petitions stating that the petitioners encroached R & B road margin and made pucca constructions and in view of the same, there is serious traffic congestion. It is further stated that pursuant to the complaints from the general public, the Joint Collector, Prakasam District directed the Revenue and R & B departments to conduct a survey and identify the encroachment portion and accordingly a joint survey was conducted and identified the encroachment portions and pursuant to the same, it appears, the Tahsildar, Kanigiri was entrusted with the removal of said encroachments. It is also stated that the Gram Panchayat has no role in the removal of alleged encroachments.
In view of the above averments, it is clear that pursuant to the complaints made by the general public, a joint survey was conducted by the Revenue and R&B Departments and identified the encroachment portions. The R& B department wanted to remove the encroachments for widening the road. Since the petitioners have already made constructions by encroaching certain portion of the road, it is just and appropriate to issue prior notice to the petitioners for removal of the encroachments made by them. The second respondent also assured that appropriate notices will be issued to the petitioners before initiating action for removal of the said encroachments. In that view of the matter, the Writ Petitions are disposed of directing the respondents to follow due process of law before initiating action for removal of the encroachments made by the petitioners.
The Writ Petitions are disposed of accordingly. Consequently, miscellaneous petitions pending consideration if any in the Writ Petitions shall stand closed. No costs.
JUSTICE A. RAMALINGESWARA RAO
Dated 4th September, 2014. Msnro