THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P.No.21255 of 2019 & 1347 of 2020
COMMON ORDER:-
The Writ Petition No.21255 of 2019 is filed under Article
226 of the Constitution of India for the following relief/s:-
"... to issue an appropriate Writ, Order or direction more
particularly one in the nature of Writ of Mandamus declaring the
endorsement in Ref.No.83/G1/2016, dated 10.12.2019 issued by
the respondent No.2 rejecting the application dated 17.10.2019
submitted by the petitioner seeking regularization of the residential building and the shop rooms bearing D.No.1/1715 situated at Yerramukkapalli, Kadapa, Y.S.R. District submitted under Section 455-A of the Greater Hyderabad Municipal Corporation Act, 1955, stating that regularization scheme introduced through G.O.Ms.No.14 expires by 31.08.2019 instead of considering it as per the provisions of Section 455-A of the Hyderabad Municipal Corporation Act, 1955 as arbitrary, illegal, colourable exercise of power, contrary to the provisions of the Hyderabad Municipal Corporation Act, 1955 and well established legal principles apart from being violative of fundamental rights guaranteed to the petitioner under Articles 14, 19, 21 of the Constitution of India and consequently direct the respondents to reconsider the application, dated 16.10.2019 strictly in accordance with Section 455-A of the Hyderabad Municipal Corporation Act, 1955 by setting aside the endorsement in Ref.No.83/G1/2016 dated 10.12.2019 issued by the respondent No.2 and pass such other order or orders ..."
2. Heard both sides.
3. The present Writ Petition is filed aggrieved by the endorsement dated 10.12.2019 vide Ref.No.83/G1/2016 issued by the 2nd respondent. The 2nd respondent-Municipal Commissioner has rejected the representation made by the petitioner for regularization of his residential building. 2
4. The case of the petitioner is that he purchased an extent of 00.261 cents in Survey No.84/1 of Nagarajupalli Village Fields, Kadapa Mandal, Y.S.R. District which was registered through Sale Deed document bearing No.2039 of 2005 dated 28.02.2005 for a valid consideration from one G. Sathyanadham and two (2) others. In addition to that extent of land the petitioner was in possession and enjoyment of 00.239 cents in the same survey number which was classified as Gramanatham/Gramakantham/Village site. It was asserted in the Writ affidavit filed in support of the Writ Petition that there is an extent of Ac 9.30 cents which is Gramakantham land and number of people occupied the said Gramakantham land and constructed the houses. The petitioner further submits that the 2nd respondent is not considering his case for regularization at the behest of the 4th respondent who is politically enimical and who is trying to occupy the property of the petitioner.
5. The contention of the Writ Petitioner in W.P.No.1347 of 2020 is that the Writ Petitioner in W.P.No.21255 of 2019 has not approached this Court with clean hands and he mislead this Court by stating/asserting that he has purchased the property in Survey No.86/1 and 2 and he stated in the Writ affidavit that he has purchased the property in Survey Nos.84/1 and 2 which amounts to the suppression of the fact. This Court feels that when there is a document showing that the petitioner herein has purchased the property in Survey 3 No.86/1 and 2 merely mentioning/asserting as property in Survey No.84/1 does not amount to misleading this Court or suppression of the fact as document prevails over the assertion made in the affidavit. Hence, the said contention is rejected.
6. The 2nd respondent-Commissioner, Kadapa Municipal Corporation in W.P.No.21255 of 2019 filed counter affidavit stating that the petitioner herein has constructed house in gramakantham land in survey No.84/1 of Nagarajupalli Village Fields, Kadapa. The Madal Surveyor, Kadapa has got surveyed and categorically stated that the petitioner has constructed the house in survey No.84/1 which is a gramakantam land in an extent of 126.6 square yards which is equal to 2.61 cents and the petitioner is not entitled for regularization as per the Building Penalization Scheme, as the Scheme elapsed. Learned counsel for the 2nd respondent has stated that the Government has issued G.O.Ms.No.14, dated 04.01.2019 to the public to regularize their un-authorized structures granting limit by means of BPS Scheme basing on Section.455(A) of Municipal Corporation Act, 1955. The said scheme has been extended from time to time vide G.O.Rt.No.334, dated 02.05.2019 and G.O.Rt.No.447, dated 05.08.2019 and the scheme was closed and the petitioner is not entitled for any regularization. As the petitioner got constructed the building in contravention of the provisions of the Andhra Pradesh Municipalities Act, 1965 a notice dated 4 24.09.2019 was issued to him stating that the 2nd respondent shall take action in accordance with law. Hence, prayed to dismiss the Writ Petition.
7. For the above said contention, the counsel for the petitioner submits that the land in survey No.84/1 and 84/2 is not Government land or panchayat land and it is a gramkantam land, where the revenue/government/gram panchayat have no claim over the gramakantam land and admittedly the land in survey No.84/1 and 84/2 is a gramakantam land.
8. Hence, the petitioner shall not be construed as an encroacher of the government land. The said contention is supported by the judgments reported in "Bayya Mahadeva Sastry and others V. State of Andhra Pradesh, rep. by its Principal Secretary, (Panchayat Department), Velagapudi, and others1", "Nagarala Nirvasithula Welfare Association V. Government of Andhra Pradesh and others2" and "Sigadapu Vijaya V. State of Andhra Pradesh, rep. by its Principal Secretary, Revenue Department and others3". Thus, relying on the above cited judgments, the petitioner prayed to set aside the impugned endorsement dated 10.12.2019.
9. The petitioner further submits that the respondent authorities failed to consider the application made to the 2nd respondent dated 16.10.2019, for regularization of the house 1 2020 (4) ALT 250 (S.B.) 2 2012 Law Suit (AP) 358 3 2015 (4) ALT 296 5 which was made under Section 455A of the Municipal Corporation Act and not under the scheme as provided by the Government vide G.O.Ms.No.14, dated 04.01.2019.
10. Thus, relying on the judgments cited supra, this Court agree with the contention raised by the petitioner and the petitioner cannot be termed as encroacher as the land belongs to the gramakantam. Hence, the unofficial respondent has no locus standi to make complaint against the petitioner herein. The petitioner also further submitted that the unofficial respondent is not a neighbour of the petitioner herein.
11. The further contention of the petitioner is that he made an application under Section 455-A of the Greater Hyderabad Municipal Corporation Act, 1955 but the 2nd respondent has rejected the application basing on the G.O.Ms.No.14, dated 04.01.2019. He stated that the said rejection is not maintainable as no application was filed under BPS scheme and prayed to allow the Writ Petition, by setting aside the endorsement in Ref.No.83/G1/2016, dated 10.12.2019.
12. The petitioner cannot countenance the above said contention as the G.O.Ms.No.14, dated 04.01.2019 was issued in exercise of the powers conferred under Section 455-A of the Greater Hyderabad Municipal Corporation Act, 1955. The petitioner ought to have questioned the said G.O. The petitioner has not questioned the G.O.
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13. The further contention of the petitioner is that the land in an extent of Ac 9.30 cents in survey Nos.84/1, 84/2 is classified as Gramakantham land and number of people have occupied the said land and constructed houses and no action was initiated against them. Only, the action was initiated against the petitioner at the behest of the unofficial 4th respondent who is the Writ Petitioner in W.P.No.1347 of 2020.
14. This Court feels that there is some force in the above said submission when no action was initiated against the people who made constructions in the land in an extent of Ac 9.30 cents in survey Nos.84/1, 84/2, initiating action only against the Writ Petitioner in W.P.No.21255 of 2019 amounts to arbitrary action.
15. The contention of the unofficial respondent is that the petitioner has encroached the land in survey Nos.84/1, 84/2 which is a government land. The said contention is untenable as the said land in survey Nos.84/1, 84/2 is Grama Kantam land, it cannot be treated as revenue or panchayat land hence, the Writ Petitioner in W.P.No.21255 of 2019 cannot be treated as an encroacher. Hence, the W.P.No.1347 of 2020 is liable to be dismissed, accordingly, stands dismissed.
16. The W.P.No.21255 of 2019 is hereby disposed of with a direction to the respondent authorities to reconsider the case in W.P.No.21255 of 2019 as the construction made in survey Nos.84/1, 84/2, which is not government land as per the judgments cited supra and also to consider other contention 7 raised by the Writ Petitioner in W.P.No.21255 of 2019, initiating action against the petitioner's property is being arbitrary, when there are other constructions in the same survey numbers i.e., Nos. 84/1, 84/2 without any permission from the respective authorities. Till the reconsideration of the petitioner's contentions, the respondents are directed not to take any coercive steps like demolition or dispossession of the petitioner herein over the subject property.
16. Accordingly, both the Writ Petitions are disposed of. There shall be no order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 06-05-2022 EPS 8 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 1 W.P.Nos.21255 of 2019 & 1347 of 2020 Dated:06-05-2022 EPS 9 In the cited judgments the learned single Judge has relied on the judgment of the Hon'ble Apex Court reported in "Rajatha Enterprises V. S.K.Sharma and Others," reported in 1989 AIR 860 and held that the neighbour cannot approach the High Court under Article 226 of the Constitution of India.
As per the Hon'ble Apex Court judgment when there is evidence that the builder constructed the building with dishonest intention, fraud or negligence then the Writ is maintainable.
In the present case admittedly the unofficial respondent No.8 has constructed the building without leaving set backs and jutting towards the road and laid an iron stair case on the road which endangers to the public. When an enactment provides to take action against the violator, if the authority does not act, then the neighbour can definitely approach this Court under Article 226 of the Constitution of India when his right to enjoy the property is deprived of either corporeal, incorporeal right viz., light, air etc when there is an invasion.