HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION Nos. 918, 1075, 1104,1276,1425 and 1784 of 2008 DATED 24th December, 2014.
BETWEEN Patha Ramulu and ors …Petitioners in WP.No.918 of 2008 G.Laxminarayana and ors ….Petitioners in WP.No. 1075 of 2008 Chintala Laxminarayana ….Petitioner in WP.No. 1104 of 2008 Ravinder and ors ….Petitioners in WP.No. 1276 of 2008 S.Ganga Rajam and ors ….Petitioners in WP.No.1425 of 2008 V.Sairam ….Petitioner in WP.No.1784 of 2008 And The Government of A.P., rep. by its Principal Secretary, Roads and Buildings Department, Secretariat, Hyderabad and ors.
…Respondents in all WPs.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION Nos. 918, 1104, 1075,1276,1425 and 1784 of 2008
COMMON ORDER:
Heard learned Senior Counsel, Sri D.Prakash Reddy appearing for the petitioners, learned Government Pleader for respondents 1 to 4 and learned Standing Counsel for Respondents 5 and 6.
This Writ Petitions were filed challenging the final notices dated 16.01.2006 issued under Sections 192 and 360 of the Andhra Pradesh Municipalities Act, 1965 ( for short ‘the Act’) asking the petitioners to remove the encroachments.
As the issue involved in these Writ Petitions is one and the same, they were heard together and are being disposed of by this common order.
The petitioners are the residents of their respective houses constructed in the land at Old Bus Stand Road, Kamareddy after obtaining due permission from the then Gram Panchayat. They were assessed to municipal tax. It is the case of the petitioners that they have constructed their respective houses within the land owned by them and they have not encroached any portion of the Government land nor they have deviated the sanctioned plan while constructing the houses. Earlier, when the respondents tried to demolish their houses, the petitioners approached this Court by way of filing Writ Petition Nos. 11852, 11912 and 10998 of 2006, which were disposed of by this Court by order on 03.07.2006 holding that the petitioners approached this Court when their houses were sought to be demolished without following the procedure laid down under the law and without putting them on notice; that the question whether the road is 80 feet or 100 feet is a disputed question of fact and the same may have to be decided only in the event of the petitioners falling under the category of ‘encroachers’ and if so, they are not entitled for any compensation; and thereby directed the respondents to put the petitioners on notice and take appropriate decision on verification of the records, if any, which would be produced in relation thereto, in accordance with law. Thereafter, show cause notices were issued to the petitioners and the petitioners submitted their explanations. After considering the explanations submitted by the petitioners, impugned final notices were issued stating that:
“The addressee has submitted explanation vide 3rd ref. cited are not satisfactory as you have not stated in your reply that whether you have constructed the building as per approved plan, further you have not submitted any building permission copy. The 100 feet Siricilla road are in existence right through the then Gram Panchayat period were after constitution of the Municipality, there were number of approved layouts by the Director of Town & Country Planning, A.P., Hyderabad by mentioning 100 feet wide road PWD (State Highway) towards Siricilla- Karimnagar road. Some of the layouts approved are vide L.P.No.470/1979, L.P.No.371/1985, L.P.No.152/1985, L.P.No.70/1984, L.P.No.8/1983, and L.P.No.144/1994 in all these layouts are showing the width of road was shown as 100 feet road as per the master plans of the year 1958 and 2000. These contents were recorded in the orders of the Honourable High Court vide 1st ref. cited. The Honourable High Court categorically held that if any body made encroachment on 100 feet road, the Municipality can remove the same by following due process of law.
Hence, xxxxxxxx S/o xxxxxxxxx is hereby directed to remove the encroachment made on 100 feet wide Siricilla Road within (3) days failing which the same will be removed departmentally and expenses incurred will be recovered by the Municipality.”
Challenging the issuance of aforesaid final notices, these batch of Writ Petitions were filed.
The Executive Engineer, Roads & Buildings Division, Nizamabad, fourth respondent herein filed a counter affidavit stating that the road leading from Siricilla to Karimangar is a 100 feet wide road since 1958 and the Roads and Buildings Department has been maintaining the said road. It is stated that in several places there are encroachments and the Kamareddy Municipality has issued show cause notice for eviction of encroachers pursuant to the orders of this Court in Writ Petition Nos. 11852 of 1006 and Batch. It is further stated that on the road leading from Siricilla to Karimnagar which is a State Highway, there is heavy vehicular traffic flowing and due to the encroachments, there is a lot of congestion. In order to see that there is free flow of traffic on the said road , it was proposed to remove the encroachments, and therefore the respondent- Municipality has issued show cause notices for removal of all encroachments. It is further stated that R&B department has taken up the work for widening of the road to an extent of 100 feet and work has not been completed in some places where the encroachments are not removed and in respect of some places, Writ Petitions are pending before this Court.
The Commissioner of the Kamareddy Municipality, fifth respondent herein, filed a separate counter affidavit stating that the adjacent buildings are in existence 10 feet behind the existing buildings maintaining the 100 feet road i.e. 50 feet from the centre of the 100 feet Siricilla road and hence the petitioners are encroachers. As per the master plan of the Kamareddy town, 100 feet road was shown as Siricilla road which is from railway station to the Siricilla passing through the busy commercial area and 80 feet road was shown at railway station having one side commercial area and railway jurisdiction on other side. The Kamareddy town was having Master Plan since 1958 i.e. during the period of erstwhile Gram Panchayat and after that the Kamareddy Gram Panchayat has been upgraded to Municipality in the year 1987, the existing Master Plan had been revised in the year 2000 vide G.O.Ms.No.487 MA, dated 19.09.2000 and that the aforesaid Siricilla road was mentioned as 100 feet wide in both Master Plans of 1958 and 2000. The petitioners submitted their explanations to the show cause notices issued to them. In the counter affidavit, the fifth respondent-Municipality has explained the governing position with regard to the petitioners’ stand in their respective explanations.
In view of the dispute involved in the Writ Petitions, an Advocate Commissioner has been appointed in order to ascertain the width of the road in question which runs from Siricilla to Karimangar. The Advocate Commissioner so appointed has visited the road on 30.08.2008 in the presence of the Commissioner, Municipal Council, Kamareddy;, Town Planning Officer;, Executive Engineer, R&B Department, Nizamabad;, Dy. Executive Engineer, R&B Department, Kamareddy; and Mandal Surveyor, Mandal Revenue Officer, Kamareddy. He submitted the report stating as follows:
“…….It is submitted that I have measured the width from the petitioner’s house which are old permanent residential houses and shops to the center of the road. The petitioners and witnesses are stated that the respondent can acquire the land under Land Acquisition Act after paying the compensation they can demolish and fix up the road. It is submitted that the local people and witnesses have submitted that the BT roads were laid down 6 onths ago. There is a gap between BT Road and Houses and shops of the petitioners which are covered by the drainage and stair cases on to the existing road. It is submitted that I have measured the width of the road in front of the ouse of the petitioners with the assistance of Executive Engineer (R&B), Nizamabad and Dy.Executive Engineer, Kamareddy. The measurements are as follows:
It is submitted that I have also measured the width of the existing BT road at Potti Sriramulu junction which is on the same road which runs from Siricilla to Karimangar on the request of the Standing Counsel for the respondents which was measured as 65.6 feet in total from one end to other end. I have also measured the width of the existing BT road at the railway station junction which is also on the same road on the request of the petitioner counsel which measured as 69 feet in total from one end to other end. The divider exists in the center of the road.”
The foregoing averments show that the respondents proposed to widen the existing road from 80 feet to 100 feet based on the Master Plans of Kamareddy town of 1958 and 2000. The petitioners, on the other hand, submit that they have constructed their respective houses within the land owned by them after obtaining due permission from the then Kamareddy Gram Panchayat and that they have not encroached any portion of the Government land. They further submit that if the respondents wanted to widen the road to 100 feet by occupying the portions of their land, they (respondents) have to pay compensation in accordance with law. The respondents on the other hand maintain that since the width of the road was shown as 100 feet in the Master Plans of 1958 and 2000, they need not to pay any compensation and that the portions of the houses which have encroached the road have to be demolished for widening the road. In these circumstances, the impugned final notices were issued under Sections 192 and 360 of the Act.
Section 192 of the Act deals with the removal of encroachments. It reads as follows:
“192. Removal of Encroachments:--(1) The Commissioner may, cause to be removed or altered—
a. any projection, encroachment or obstruction (other than a door, or gate or a necessary access thereto, or bar or ground floor windows) situated against, or in front of such premises and in, over any street.
b. 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, together with any vehicle, package, box or any other thing in or on which such article is placed.
3. If the owner or occupier of the premises proves that any such projection, encroachment or obstruction under clause (a) of Sub Section (1) as existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any municipal authority duly empowered in that behalf, and that the period, if any, for which the permission or licence is valid has not expired, the council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.
1. No decision made or order passed or proceeding taken by the Commissioner effecting removal of encroachments shall be called in question before a Civil Court in any suit, application or other proceedings and no injunction shall be granted by any Court in respect of any proceeding taken by the Commissioner.
Section 360 of the Act deals with the power of the Commissioner to take necessary action pursuant to the notice issued under Section 192 of the Act. It reads as follows:
”360. TIME FOR COMPLYING WITH ORDER AND POWER TO ENFORCE IN DEFAULT: (1) Whenever by any notice, requisition, or order under this Act, or under any rule, bye-law or regulation made under it, any person is required to execute any work or to take any measures or to do anything, a reasonable time shall be named in such notice, requisition or order within which the work shall be executed, the measures taken or the thing done.
(2) If such notice, requisition or order is not complied with, within the time so named, the (Chairperson or Commissioner) or other officer concerned may cause such work to be executed or may take any measures or do anything which may, in his opinion, be necessary for giving due effect to the notice; requisition or other as aforesaid and further if no penalty has been specially provided in this Act for failure to comply with such notice, the said person shall be liable on conviction before a magistrate to a fine not exceeding fifty rupees for every such offence.
In view of the above legal position, this Court felt it necessary to ascertain true and correct position in the pending cases and in pursuance thereof, the Executive Engineer was directed to submit a report and he was also asked to produce evidence in support of 100 feet wide road in the Master Plan of 1958. But he could not produce the copy of the Master Plan of 1958. The Advocate Commissioner’s report clearly shows that houses are existing at a distance of 75 feet to 80 feet when measured from the center of the road. The Commissioner of the Kamareddy Municipality in his counter affidavit by commenting on each of the petitioners’ explanations noticed that in some of the permissions granted by the then Gram Panchayat, it was mentioned as a 100 feet road and in other cases it was mentioned as 80 feet road. In order to verify the veracity of the comments made in his counter affidavit, the case of the first petitioner in Writ Petition No. 1075 of 2008 as stated by him in his counter affidavit was examined with reference to the actual documents and it evolves that the statements made by the fifth respondent are not the true and correct reflections of the documents filed by the first petitioner. In the plan submitted by the petitioners it was a 80 feet road and the said plan was dated 15.05.1983; whereas it was mentioned in the counter affidavit that it was dated 27.05.1985 and the width of the road was mentioned as 100 feet. This is palpably and ex facie contrary to the record. When it is the case of the petitioners that they have made constructions within the land owned by them after obtaining due permission from the then Gram Panchayat, it cannot be said that they have encroached the Government land. Trite to state, the title of the petitioners cannot be decided on the basis of the width of the road mentioned in the Master Plans. Needless to observe, the respondents are always at liberty to widen the road in order to cater the needs of the public. But while doing so, if they need any portions of the private land, they have to pay necessary compensation to the owners of the land. Notwithstanding the same, they cannot be termed as encroachers high handedly so as to remove the constructions. The issue can be decided on the basis of the title held by the individual owners. Perusal of the final notices indicate that no finding with regard to the ownership of the land held by the petitioners was given except stating that the petitioners have encroached the Government land. All the notices were issued on the presumption that the 100 feet Siricilla- Karimnagar road is existing during the then Gram Panchayat and that after the constitution of Municipality, number of layouts have been approved by the Director of Town and Country Planning by mentioning 100 feet wide road towards Siricilla from Karimnagar. Some of the layouts approved were mentioned in the said final notices in support of the contention in regard thereto.
As discussed supra, it is pertinent to state that the title of the petitioners cannot be decided on the basis of the width of the road mentioned in the Master Plans and layouts. Having regard to the foregoing discussion and in the result, the final notices dated 16.01.2008 issued by the fifth respondent are liable to be set aside and accordingly set aside. It is made clear that if the respondents requires any portion of the land held by the petitioners, they have to issue appropriate notices indicating the requirement of extent of the land held by each of the petitioners and after inviting explanations from the petitioners along with necessary documents and title deeds if any, in support of their claim, final notices have to be issued fixing the extent of land required to widen the road and payment of compensation therefor.
The Writ Petitions are allowed accordingly. Miscellaneous petitions pending consideration if any in the Writ Petitions shall stand closed in consequence. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO DATED 24th December, 2014. Msnrx