THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.706 of 2022
AND
WRIT PETITION No.30708 of 2022
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Vedula Srinivas, learned Senior Counsel
for the appellant and Mr. B.Adinarayana Rao, learned
Senior Counsel for respondent No.1/writ petitioner. We
have also heard Ms. Laeeq Unnisa Begum, learned Assistant Government Pleader for Panchayat Raj & Rural Development Department appearing for respondents No.2, 4 and 6 in the writ appeal; Ms. D.Madhavi, learned Standing Counsel for Hyderabad Metropolitan Development Authority (HMDA) for respondent No.3 in the writ appeal; and Mr. Kishore Rao Puskuru, learned Standing Counsel appearing for respondent No.5 in the writ appeal. 2
2. W.A.No.706 of 2022 is directed against the order dated 27.09.2022 passed by the learned Single Judge in I.A.No.1 of 2022 in W.P.No.30708 of 2022.
3. Parties in this common judgment shall be referred to as they are arrayed in W.A.No.706 of 2022.
4. Respondent No.1 has filed the related writ petition, being W.P.No.30708 of 2022, seeking a direction to HMDA and others to remove the encroachments and restore the public road as gifted by M/s. Sri Vishnu Estates and Developers to Mansanpally Panchayat vide the gift deed dated 20.02.2010 contending that the said public road leads to the layout of M/s. Sri Vishnu Estates and Developers from the main road in which respondent No.1 has purchased a plot. Along with the writ petition, an interlocutory application was filed for interim order, being I.A.No.1 of 2022. Prayer made in I.A.No.1 of 2022 was to direct HMDA and other authorities to forthwith restore the public road and to ensure that there are no further 3 encroachments thereon during pendency of W.P.No.30708 of 2022.
5. Learned Single Judge by the order dated 27.09.2022 expressed the prima facie opinion that there is ample evidence to show existence of 40 feet wide road passing through Survey No.324 even prior to the year 2007 and therefore, the authorities are under obligation to restore the said 40 feet wide road treating the same as a public road. In view thereof, an interim direction was issued by the learned Single Judge to HMDA and other authorities to restore the 40 feet wide road forthwith after duly removing the encroachments or any constructions, if any, made by the appellant and respondent No.7. Further, learned Single Judge restrained the appellant and respondent No.7 from interfering with/encroaching any part of the 40 feet wide road passing through Survey No.324, pending further orders.
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6. It is against the aforesaid order dated 27.09.2022 that the present writ appeal, being W.A.No.706 of 2022, came to be filed.
7. This Court after hearing learned Senior Counsel for the appellant as well as learned Senior Counsel for respondent No.1 passed an order on 01.11.2022 staying the order dated 27.09.2022 as well as further proceedings in W.P.No.30708 of 2022.
8. For vacating the aforesaid order dated 01.11.2022, respondent No.1 has filed I.A.No.1 of 2023 in W.A.No.706 of 2022.
9. We have heard learned Senior Counsel appearing for both the sides.
10. In the course of the hearing, a consensus has emerged that insofar contention of respondent No.1 that there is a public road leading to the layout of M/s. Sri Vishnu Estates and Developers in which respondent No.1 has purchased a plot and that there is encroachment on 5 the said road, it should be referred to HMDA for a final determination of facts. In this connection, it is further submitted that HMDA may also consider whether the 40 feet wide road passes through Survey No.324 or Survey No.323.
11. In view of the above, HMDA i.e., respondent No.3, represented by its Commissioner, is directed to hear both the appellant as well as respondent No.1, make necessary survey, consider the relevant land documents and thereafter take an appropriate decision in accordance with law. Since both the parties are present before the Court, we direct appellant and respondent No.1 to appear before respondent No.3 on 06.03.2023 at 11:00 am whereafter Commissioner of HMDA shall do the needful in terms of this order. Whatever decision is taken by the Commissioner, HMDA, the same shall be communicated to both the parties and thereafter appropriate steps, if deemed necessary, may be taken in accordance with law. 6 The said exercise shall be carried out within a period of six weeks from the date of appearance of the parties.
12. Needless to say, in view of the order passed today, order dated 27.09.2022 passed by the learned Single Judge in I.A.No.1 of 2022 in W.P.No.30708 of 2022 is hereby set aside.
13. Consequently, both W.A.No.706 of 2022 and W.P.No.30708 of 2022 are disposed of.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ N. TUKARAMJI, J 17.02.2023 vs