THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.26891 of 2008 Between:
Mudigonda Durga Prasad PETITIONER AND
1. The District Collector, Krishna District, Machilipatnam, and others.
RESPONDENTS ORDER:
This writ petition, filed under Article 226 of the Constitution of India, assails the action of respondents 1 to 3 in not taking any steps for removal of illegal construction alleged to have been made in Sy.No.170/5, main road, Nadim Tiruvuru, Krishna District, and encroachment into public lane by the 4th respondent as illegal, arbitrary and in violation of Building Rules.
2. Heard Sri Srinivasa Rao Velivela, learned counsel for the petitioner, learned Government Pleader for Panchayat Raj, Sri G. Elisha, learned Standing Counsel for the 3rd respondent-Gram Panchayat, and Sri Kowturu Vinaya Kumar, learned counsel for respondent No.4.
3. The sum and substance of the pleadings in the affidavit filed in support of the writ petition is that the 4th respondent started the work of digging pillar points on the boundary of their site and despite the objection raised by the petitioner the official respondents did not take any action. It is also the case of the petitioner that the 4th respondent did not obtain any permission from the Gram Panchayat.
4. Responding to the Rule Nisi, a counter affidavit is filed on behalf of the 3rd respondent-Gram Panchayat stating that the 4th respondent is constructing a Mask in their own site by obtaining necessary permission from the Gram Panchayat and the Tahsildar, Tiruvuru. On receipt of the complaint from the petitioner, an inspection has been conducted and that the Mask is being constructed as per the sanctioned plan. The counter affidavit further says that a small projection of Sajja is being made in deviation of the sanctioned plan and as such notice dated 26.11.2008 was issued for removal of the same. It is further stated in the counter affidavit that in response to the notice a reply was given by the 4th respondent saying that there are no deviations and that their land was occupied by the writ petitioner and requested to conduct a survey and demarcate their land and in the event of finding any deviation they would remove the deviated structures. It is further stated that there is a boundary dispute between the petitioner and the 4th respondent and the same can be resolved only in civil proceedings, as such the present writ petition is not maintainable.
5. It is settled and well established proposition of law that the jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked when disputed questions of law are involved. The grievance of the petitioner that the 4th respondent is proceeding with the construction without any permission, falls to the ground in view of the averments in the counter affidavit filed on behalf of the 3rd respondent for which no reply is filed. In view of the said reason, this Court is not inclined to grant any relief in the present writ petition in favour of the petitioner.
6. For the aforesaid reasons and having regard to the nature of the controversy in the writ petition and keeping in view the averments in the counter affidavit filed on behalf of the 3rd respondent, this writ petition is disposed of, permitting the petitioner to submit a representation afresh to the 3rd respondent-Gram Panchayat within a period of one month from the date of receipt of a copy of this order, pointing out the deviations, if any, made by the 4th respondent in contravention of the sanctioned plan. If any such representation is made, the 3rd respondent shall take appropriate action in accordance with law, after giving notice and opportunity of being heard to all the stake holders. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
10th June, 2014 Js.