THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.730 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Srinivas Reddy, learned counsel for the
appellants; Mr. Ramesh Chilla, learned counsel for
respondent No.1/writ petitioner; Ms. Borra Lakshmi
Kanakavalli, learned Assistant Government Pleader for Municipal Administration and Urban Development Department, appearing for respondent No.2; Mr. M.Ram Mohan Reddy, learned Standing Counsel appearing for respondent No.3; Mr. T.Srikanth Reddy, learned Government Pleader for Revenue appearing for respondents No.4 and 5; Mr. Ram Prasad Pattipaka, learned Government Pleader for Social Welfare appearing for respondent No.6; and Mr. M.Roopender, learned Government Pleader for Home appearing for respondents No.7 and 8.
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2. This writ appeal is directed against the order dated 20.07.2022 passed by the learned Single Judge disposing of W.P.No.29393 of 2022 filed by respondent No.1 as the writ petitioner.
3. Respondent No.1 had filed the related writ petition alleging inaction by the authorities of Palwancha Municipality in taking any action against the appellants, who were arrayed as respondents No.8 to 25 in the writ petition. It was alleged that appellants had encroached upon the assigned land of respondent No.1 admeasuring Acs.3.00 in Survey No.444/1/31 situated at KCR Nagar Colony, Palwancha Village and Mandal, Bhadradri Kothagudem District (subject property). Respondent No.1 further sought for a direction to the authorities of Palwancha Municipality to demolish the unauthorised construction made by the appellants over the subject property.
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4. Before the learned Single Judge it was contended by respondent No.1 that appellants were going ahead with the construction which he termed as "unauthorised" over the subject property in spite of status quo order passed by this Court in W.P.No.33019 of 2010 on 29.12.2010 and also in violation of the interim injunction order as well as police protection order passed in O.S.No.67 of 2020. Learned counsel for respondent No.1 submitted that respondent No.1 had filed a representation on 08.10.2020 before the Palwancha Municipality but there was no response. Therefore, respondent No.1 was compelled to file the writ petition.
4.1. Learned Standing Counsel for Palwancha Municipality submitted that appellants were making constructions in the subject property and that appropriate action would be taken.
4.2. Thereafter, by the order dated 20.07.2022, learned Single Judge disposed of the writ petition in the following manner:
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"4. Recording the said submission of the learned standing counsel, this writ petition is disposed of directing the respondents to take appropriate action on the illegal constructions in land admeasuring Ac.3.00Gts in Sy.No.444/1/31 situated at KCR Nagar Colony, Palwancha Village and Mandal, Bhadradri Kothagudem District in accordance with law, within a period of six (6) weeks from the date of receipt of copy of the order. There shall be no order as to costs."
5. Thus, we find that learned Single Judge had noted the submission of learned Standing Counsel and thereafter directed the respondents (Palwancha Municipality) to take appropriate action against the "illegal construction" on the subject property in accordance with law and within a period of six weeks.
6. From a perusal of the aforesaid order dated 20.07.2022, we do not find that notice was issued to the appellants (respondents No.8 to 25 in the writ petition). The order does not disclose that despite notice, appellants did not come forward to contest the proceeding. In the absence thereof, it was not proper for the learned Single Judge to have directed the authorities of Palwancha 5 Municipality to take appropriate action against the "illegal construction". To declare a construction as illegal, there must be sufficient materials on record and there must be a clear finding based on such materials that construction was carried out in violation of law. In the absence thereof, it would not be proper to term any construction as "illegal construction".
7. Be that as it may, learned counsel for the appellants has drawn our attention to page No.44 of the appeal papers and submits therefrom that by order dated 18.03.2021, the Court of Special Assistant Agent and Sub Divisional Magistrate, Mobile Court at Bhadrachalam, had dismissed I.A.No.64 of 2020 filed by respondent No.1/writ petitioner in O.S.No.67 of 2020 by holding that the defendants therein are in possession of the subject property which has been proved by the materials on record. They are entitled to continue in possession. Therefore, temporary injunction order passed earlier and also police protection order granted earlier were all recalled.
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8. Insofar order of this Court dated 29.12.2010 is concerned, we find from page No.30 of the appeal papers that in the aforesaid status quo order no survey numbers were mentioned by the Court. Direction was granted to the revenue authorities of Palwancha, Khammam District. We find therefrom that appellants are not parties to the said proceeding.
9. All these things are required to be considered before any direction is issued to the municipal authorities for demolition of any construction.
10. That being the position, we set aside the order of the learned Single Judge dated 20.07.2022 and remand the matter back to the learned Single Judge having roster for hearing afresh.
11. Appellants being respondents No.8 to 25 in the writ petition shall file counter affidavit in the writ petition within four weeks from today.
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12. Writ appeal is accordingly allowed.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 09.11.2022 vs