THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.30546 of 2022
JUDGMENT:-
1. Heard Sri Syed Kaleemulla, learned counsel for the
petitioner and Sri P.Anand Surya, learned counsel, representing
Sri Suresh Kumar Reddy Kalava, learned Standing Counsel for
the respondent No.2.
2. With the consent of the parties counsels, the writ petition is being disposed of finally at this stage.
3. This writ petition under Article 226 of the Constitution of India has been filed for the following relief:-
"It is therefore prayed that this Hon'ble Court may be pleased declaring the action of the 2nd respondent in marking 3.6 feet wide X 47 feet length area of the house/shops of the petitioner bearing D.No.3/1590-5 situated in Sionpuram of Kadapa city of YSR Kadapa District for demolition claiming the same to be the part of already acquired area without any rights and without following any due process of law is highly illegal, arbitrary and against the provisions of Article 300-A of the constitution of India and consequently to direct the respondents not to demolish any part of the said house/shops of the petitioner and to pass such other order or orders may deem fit and proper in the circumstances of the case."2
4. Learned counsel for the petitioner submits that the petitioner's vendor, Nakat Firdouse earlier filed W.P.No.7348 of 2010 against the same Municipal Corporation with respect to the same dispute for widening of the road, disputing the area of the acquired land in acquisition proceedings under the Land Acquisition Act. The case of Nakat Firdouse in that writ petition was that the land to an extent of 702 Square feet was acquired and compensation was paid to her. She herself dismantled structures. The case of the Municipal Corporation was that the structure up to 10.4 feet, where 5 pillars were existing from north to south was dismantled but the rest of the pillars in 3.6 feet, which also fall in the acquired area were not dismantled on the apprehension of damage to the residential structure.
5. The W.P.No.7348 of 2010 was disposed of vide judgment and order dated 15.06.2012, holding that, whether the area marked by the Municipal Corporation for demolition for the purpose of road widening falls within the acquired area or not is a disputed question of fact, but granting liberty to the petitioner therein (the present petitioner's vendor) to make representation to the respondent No.2, the Superintending Engineer, R&B, Kadapa, with a direction to him to take appropriate decision based on the material available and to be made available by the petitioner after giving opportunity. It was also provided that in 3 case the disputed area did not fall within the acquired land, the authorities were not precluded from acquiring the same in accordance with law. Operative part of the judgment/order dated 15.06.2012 reads as under:-
"6. In view of the above facts and circumstances and the statement made in the counter affidavit, the petitioner is given liberty to make a representation to the 2 nd respondent, who shall take appropriate decision based on the material evidence to be made available by the petitioner and after giving opportunity. It is made clear that in case the area now is dispute does not fall within the acquired land, this order will not preclude the authorities from acquiring the same in accordance with law for the purpose of widening the road."
6. The petitioner had purchased from his vendor i.e. the petitioner of W.P.No.7348 of 2010, in the year 2013. In this petition also the petitioner has raised the same grievance that the area purchased does not fall within the acquired area, which is again the same disputed question of fact, for which the Commissioner has passed an order on 23.09.2022 served on the petitioner on 24.09.2022, directing to remove the effected road widening portion giving the measurement and mentioning that the compensation was already paid by following due process.
7. Sri P.Anand Surya, on the basis of written instructions submits that the petitioner's vendor did not file any 4 representation and consequently the authorities are now proceeding for road widening as the said land construction lies within the acquired area.
8. This Court has already held in W.P.No.7348 of 2010 that the question whether the land of the petitioner's vendor, purchased by the petitioner, falls in the acquired land or not, is a disputed question of fact which cannot be investigated in the writ petition. However, liberty was granted to the petitioner's vendor to file representation, which was not filed. The proceedings for road widening were not taken for last nine (09) years, therefore this Court is of the view that the valuable right of the petitioner being involved, it would be in the interest of justice to direct the Commissioner to decide the petitioner's objection already filed on 24.09.2022 against the order dated 23.09.2022, by a reasoned order recording the finding based on material on record, if the disputed portion falls in the acquired area or not and if necessary, measurements as per the record, be also taken by survey if possible, as also keeping in view the directions contained in the judgment dated 15.06.2012 passed in W.P.No.7348 of 2010.
9. It is ordered accordingly as in Para No.8. 5
10. The Commissioner shall take decision within a period of two (02) weeks from the date of production of copy of this order before the said authority.
11. The petitioner to serve copy of this order within a period of one (01) week from today. If the copy is not served, the benefit of this order will not be available to the petitioner.
12. For a period of four (04) weeks or till the decision is taken by the Commissioner whichever is earlier no coercive action shall be taken, pursuant to the order dated 23.09.2022.
13. With the aforesaid directions, writ petition is disposed of finally.
14. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
__________________________ RAVI NATH TILHARI,J Date: 26.09.2022 Note:-
Issue C.C by 27.09.2022 B/o SCS FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGG GGGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD 6 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI 51 WRIT PETITION No.30546 of 2022 Date: 26.09.2022 Scs