Andhra Pradesh High Court - Amravati
Smt. B. Girija vs The State Of Andhra Pradesh on 23 September, 2021
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No. 380 of 2021
(Taken up through video conferencing)
Smt. B. Girija, W/o Bhaskara Rao,
aged about 57 years, R/o D.No.10-37/10A,
Janatha Pet South, Udayagiri Road, Kavali,
SPSR Nellore District. .... Appellant
Versus
The State of Andhra Pradesh,
rep. by its Principal Secretary, Municipal
Administration Department, A.P. Secretariat,
Amaravati at Velagapudi, Guntur District
and others .... Respondent s
Counsel for the appellant : Mr. M.V.S. Suresh Kumar,
Senior Counsel for Mr. Karra Srinivas
Counsel for respondent No.1 : The Government Pleader for
Municipal Administration
Counsel for respondent No.2 : Mr. N. Ranga Reddy
Counsel for respondent No.3 : Mr. K.G. Krishna Murthy
Senior Counsel for Mr. K. Rama Mohan
Date of hearing : 29.07.2021
Date of Pronouncement : 24.09.2021
JUDGMENT
(Per Ninala Jayasurya, J)
The unsuccessful petitioner in W.P.No.2895 of 2019 aggrieved by the order of the
learned Single Judge dated 04.12.2020 filed the present appeal.
2. The 2nd respondent, by proceedings dated 11.02.2019 challenged in the writ
petition, directed the petitioner to remove the encroachments in respect of the property
thereof within 30 days from the date of receipt of the said proceedings.
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3. The case of the petitioner is that her mother-in-law one Budamgunta Gnanamma
was in possession and enjoyment of an extent of two cents of site in Sy.No.2048/B
situated at Kavali since long time and having regard to her uninterrupted long possession
and on her application, the Government assigned the said extent of land and D-Form patta
was issued to her by the then Mandal Revenue Officer, Kavali Mandal, on 20.05.1993 in
RCB No.1049/93. It is her further case that Gnanamma constructed a house in the said
site which was assigned Door No.10-37/10A by the 2nd respondent and the same is being
assessed to property tax. The said Gnanamma executed a Will dated 09.12.2002
bequeathing the said property to the petitioner and after death of Gnanamma took
possession and was in peaceful enjoyment of the same. She filed a suit in O.S.No.213 of
2005 on the file of the Court of the Principal Junior Civil Judge, Kavali, seeking
permanent injunction against the 2nd respondent and another, when an attempt was made
to demolish a portion of the house alleging that it was an encroachment. The said suit, on
contest, was decreed by judgment dated 30.01.2013 and it had attained finality, as no
appeal was preferred against the same.
i) One Thotireddy Subbalakshmamma, 3rd respondent herein, filed W.P.No.26165 of
2018 against the petitioner's husband, the 2nd respondent and others alleging that the 2nd
respondent failed to remove the illegal road margin encroachment made by the petitioner
and others and sought for a direction to the 2nd respondent to remove the alleged
encroachments on the road margin. The said writ petition was disposed of by an order
dated 24.08.2018 giving liberty to submit an appropriate representation to the 2nd
respondent who in turn was directed to take appropriate action, in accordance with law,
after giving notice to all the stakeholders, as expeditiously as possible.
ii) In terms of the said order, the 2nd respondent issued a notice dated 11.09.2018
under Sections 189, 192 and 361 of the A.P. Municipalities Act, 1965 (for short "the
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Municipalities Act") to the petitioner's husband calling upon to remove the alleged
encroachments to the extent of 69.95 square meters within seven days. Challenging the
said notice, the petitioner's husband filed W.P.No.33937 of 2018 and the same was
disposed of by an order dated 19.09.2018 providing that the said notice be treated as a
show-cause-notice and the petitioner was granted liberty to file an appropriate
explanation, and that the same shall be considered and appropriate final orders be passed,
strictly in accordance with law, after giving notice to all the stakeholders. It was further
provided that till such exercise attains finality, status-quo with regard to the subject
constructions shall be maintained.
iii) Pursuant to the said orders in W.P.No.33937 of 2018, the petitioner submitted an
explanation on 03.10.2018 to the 2nd respondent inter alia stating that there was no
encroachment in the road margin, that the road exists as it is, and that construction was
made by her within the assigned site. On receipt of the said explanation, the 2nd
respondent issued the proceedings dated 11.02.2019 impugned in the writ petition.
It is pleaded in the writ petition inter alia that the 2nd respondent failed to conduct
any enquiry affording an opportunity to the petitioner and also failed to take into
consideration the permanent injunction granted in favour of the petitioner, etc.
4. The 2nd respondent filed a counter stating inter alia that the D-Form patta allegedly
granted to the petitioner is a fake patta, that the permanent injunction granted in her
favour is to protect her property, but it would not be helpful to the petitioner to protect the
encroachment of road margin, and that the order of the 2nd respondent dated 11.02.2019 is
not illegal, arbitrary or unjust as averred in the writ petition.
5. The 3rd respondent got herself impleaded and filed a detailed counter. It was inter
alia pleaded that the Civil Courts should not and ought not to ordinarily entertain every
suit against Local Authority, Panchayat or Municipal Corporation especially in a case
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where these Authorities have issued notices under the relevant provisions of law. Further,
on the basis of the information obtained under the Right to Information Act, it was
averred that the petitioner and others encroached the service road nearly to an extent of
8.50 meters out of 11.00 meters leaving 2.50 meters of service road.
6. The learned Single Judge, after considering the submissions of all the parties and
perusing the material available on record, dismissed the writ petition vide order dated
04.12.2020 recording his conclusions as follows:
"10. Having regard to the facts and circumstances of the case and
considering the submissions of the counsel and on perusal of the
record, this court found that the impugned final order is passed in
pursuance of the orders of this Court passed in W.P.No.26165 of
2018 and W.P.No.33937 of 2018, this court came to the conclusion
that the injunction order passed in O.S.No.213 of 2008 is not a bar
to take appropriate action as per the provisions of A.P. Municipalities
Act. In fact a notice is issued to the petitioner's husband and the
same is challenged in W.P.No.33937 of 2018 and in pursuance of
the order passed in W.P.No.33937 of 2018, the petitioner's husband
submitted a comprehensive representation. The 2nd respondent,
considering the representation of the petitioner's husband and the
representation of the 3rd respondent, the impugned final order is
passed directing the petitioner to remove the encroachments made
on the road margin, within 30 days from the date of receipt of order.
The information given under Right to Information Act, 2005, to the
husband of the 3rd respondent shows that total width of Udayagiri
main road is 40.23 metres, the middle portion of the road is 18
metres covered by CC road and road over bridge and the remaining
portion of the road is covered by service road on either side of the
main road with 11 metres width, whereas the petitioner encroached
about 8.50 metres width of the service road leaving 2.5 metres by
construction the house. The evidence on record clearly established
that the petitioner encroached about 8.50 metres of service road
margin by way of construction of house leaving only 2.5 metres of
road which is highly objectionable, causing obstruction to the free
flow of vehicular traffic on the road. Hence, the encroachment made
by the petitioner is highly objectionable, needs to be removed.
Hence, the contention of the petitioner that before passing impugned
final order, no notice is issued or proper enquiry is conducted to find
out the road encroachment made by the petitioner is untenable. The
further contention of the petitioner that the petitioner paid property
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tax regularly and electrical connection is provided, the same did not
confer any right to squat on the road margin, which is causing
obstruction to the free flow of traffic and the public is put to
inconvenience. The petitioner's counsel failed to persuade this court,
how the provisions of Articles 14, 19, 21 and 304-A of the
Constitution of India and the provisions of the A.P. Municipalities Act
and the principles of natural justice are violated. Hence, the said
contention of the petitioner's counsel is untenable. On a careful
consideration of the rival contentions and also on perusal of the impugned
order, this court found that there is no illegality or
irregularity in passing the impugned final order. Hence, the writ
petition is devoid of any merit, and liable to be dismissed."
7. Heard Mr. M.V.S. Suresh Kumar, learned Senior Counsel for the appellant. Also
heard Mr. N. Ranga Reddy, learned Standing Counsel for the 2nd respondent, and Mr.
K.G. Krishna Murthy, learned Senior Counsel for the 3rd respondent.
8. Assailing the order of the learned Single Judge, Mr. M.V.S. Suresh Kumar,
learned Senior Counsel for the appellant/writ petitioner, submits that the learned Single
Judge failed to appreciate that the order passed by the 2nd respondent was based on the
report of the Tahsildar to the effect that the file relating to the patta granted in favour of
the petitioner is not traceable, but, the 2nd respondent however, recorded a finding that the
patta is fabricated, without any basis or jurisdiction.
i) The learned Senior Counsel while drawing the attention of this Court to the
judgment dated 30.01.2013 in O.S.No.213 of 2005, submits that on an earlier occasion,
an attempt was made by the 2nd respondent-Municipality to dispossess the petitioner from
the subject property on the premise that the petitioner made some encroachment and a
permanent injunction was granted restraining the 2nd respondent and another from
interfering with the petitioner's peaceful possession and enjoyment of the suit property.
He also submits that the 2nd respondent, who is the 1st defendant in the suit, took a plea
that the patta granted to the petitioner/plaintiff is not a genuine one and is a bogus patta,
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but the same was disbelieved by the Trial Court, as no steps were taken to prove that the
patta granted to the petitioner/plaintiff is bogus one. The learned Senior Counsel submits
that the judgment and decree of the Trial Court was not challenged by way of an appeal
and thereby, the same had become final. He also submits that in the light of the said
judgment and the categorical findings recorded therein, the proceedings dated 11.02.2019
issued by the 2nd respondent without even considering the same, is not sustainable in law.
Further that the learned Single Judge erred in recording a finding that the injunction order
passed in the suit is not a bar to take appropriate action as per the provisions of the
Municipalities Act.
ii) The learned Senior Counsel further contends that the 2nd respondent had
concluded that the petitioner encroached the road margin merely on the premise that the
patta was fabricated and that the 2nd respondent had not examined the issue as to the
extent allegedly encroached upon by the petitioner nor arrived at the same by undertaking
any exercise, that the learned Single Judge however committed an error in recording
findings with regard to the extent of alleged encroachment, and that the same is beyond
the scope of the writ petition. He also submits that the order passed by the 2nd respondent
is in gross violation of the principles of natural justice, inasmuch as the 2nd respondent
based his conclusions with reference to the report of the Tahsildar, a copy of which was
not even furnished to the petitioner. At any rate, the learned Senior Counsel submits, that
the 2nd respondent's order is liable to be set aside on the ground that the same is not in
accordance with law and the learned Single Judge failed to appreciate the said aspect in
the right perspective. Accordingly, he submits that the order under appeal and the
impugned proceedings of the 2nd respondent are liable to be set aside.
9. Refuting the said contentions, Mr. K.G. Krishna Murthy, learned Senior Counsel
appearing for the 3rd respondent, contends that the order passed by the learned Single
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Judge is well considered and the same warrants no interference in the facts and
circumstances of the case. He submits that the order impugned in the writ petition was
passed pursuant to the earlier orders of this Court in W.P.No.26165 of 2018 and
W.P.No.33937 of 2018 dated 24.08.2018 and 19.09.2018, respectively, after giving due
opportunity to the petitioner and the same cannot be found fault with. The learned Senior
Counsel submits that the petitioner had encroached upon the road margin and is
successfully preventing the Authorities from taking action in accordance with law. He
contends that the submissions made on behalf of the appellant/petitioner with reference to
the judgment and decree dated 30.01.2013 in O.S.No.213 of 2005 deserves no
appreciation, inasmuch as the same was passed without taking into account the bar
contained in Section 192(3) of the Municipalities Act. While taking this Court through
the relevant provisions of the Municipalities Act viz., Sections 190, 191 and 192, the
learned Senior Counsel would submit that the action taken by the 2nd respondent is in
accordance with the said provisions, and as rightly pointed out by the learned Single
Judge, the judgment and decree of the Civil Court would not come in the way of the
Municipal Authorities in view of the express provision contained under Section 192(3) of
the Municipalities Act. While relying on the judgments of the Hon'ble Supreme Court in
Harshad Chiman Lal Modi Vs. DLF Universal and others, reported in (2005) 7 SCC
791, in Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and others, reported in (2007)
2 SCC 355, and in Chandrabhai K. Bhoir Vs. Krishna Arjun Bhoir and others, reported
in (2009) 2 SCC 315, the learned Senior Counsel submits that the appeal is liable to be
dismissed.
10. Mr. N. Ranga Reddy, learned Standing Counsel appearing for the 2nd respondent,
while supporting the arguments of the learned Senior Counsel advanced on behalf of the
3rd respondent, contends that neither the proceedings of the 2nd respondent dated
11.02.2019 nor the order of the learned Single Judge confirming the same suffer from
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any legal infirmities and in such circumstances, no interference is called for by this Court
in an intra-Court appeal. He submits that the appeal is devoid of merits and is
accordingly liable to be dismissed.
11. This Court has considered the submissions made by the respective counsel and
perused the materials on record.
12. Section 192 of the Municipalities Act 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, or 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.
(2) 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.
(3) 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 proceeding, and no
injunction shall be granted by any Court in respect of any proceeding taken by
the Commissioner."
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13. In Harshad Chiman Lal Modi's case, the Hon'ble Supreme Court, while dealing
with the jurisdiction of the Courts and entertaining the suits instituted before them, at
para 28 opined as follows:
"........... The law is well settled on the point that if such objection is not taken
at the earliest, it cannot be allowed to be taken at a subsequent stage.
Jurisdiction as to subject matter, however, is totally distinct and stands on a
different footing. Where a court has no jurisdiction over the subject matter of
the suit by reason of any limitation imposed by statute, charter or commission,
it cannot take up the cause or matter. An order passed by a court having no
jurisdiction is nullity."
14. In Hasham Abbas Sayyad's case, the Hon'ble Supreme Court, while examining
the effect of decrees vis-à-vis the execution of the same in terms of the provisions of the
Code of Civil Procedure, dealt with the aspect of jurisdiction and in the said context, held
as follows:
"10. The core question is as to whether an order passed by a person lacking
inherent jurisdiction would be a nullity. It will be so. The principles of
estoppel, waiver and acquiescence or even res judicata which are procedural
in nature would have no application in a case where an order has been passed
by the Tribunal/Court which has no authority in that behalf. Any order passed
by a court without jurisdiction would be coram non judice being a nullity, the
same ordinarily should not be given effect to."
15. The judgment in Chandrabhai K. Bhoir's case is also in similar lines.
16. However, this Court deems it not necessary to embark upon the contentions
advanced by the learned Senior Counsels with regard to the decrees passed in the civil
suits vis-à-vis Section 192(3) of the Municipalities Act, inasmuch as the order impugned
in the writ petition is otherwise not sustainable.
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17. A bare reading of the order of the 2nd respondent goes to show that he proceeded
in the matter on the basis of the report of the Tahsildar and rested his conclusions with
reference to the same, without furnishing a copy of the report to the petitioner. Even as
per the said report, the details of the patta in respect of the subject matter property are not
available and nothing is stated about the genuineness or otherwise of the patta allegedly
granted in favour of the petitioner's mother-in-law. However, the 2nd respondent recorded
a finding as if the patta is fabricated and on the basis of the same, came to the conclusion
that the petitioner had encroached and occupied the road margin. The said approach of
the 2nd respondent, in the opinion of this Court, is not in accordance with the settled
principles of law and is vitiated by non-application of mind. Further, as rightly pointed
out by the learned Senior Counsel for the appellant/petitioner, the 2nd respondent has not
recorded any finding as regards the extent allegedly encroached upon by the petitioner.
The learned Single Judge while dismissing the writ petition, went into the aspect of the
extent allegedly encroached upon by the petitioner and recorded a finding that 8.50
meters of service road margin was encroached, though there is no finding by the 2nd
respondent to that effect. While there can be no second opinion about the view taken by
the learned Single Judge that payment of property tax and provision of electricity supply
would not confer any right to squat on the road margin, this Court, however, is of the
opinion that the order under challenge in the writ petition is not in conformity with the
principles of natural justice and on that ground, is liable to be set aside. The learned
Single Judge, in the opinion of this Court, has not examined the issues from the said
perspective and further recorded findings with reference to the extent of the area
allegedly encroached upon by the petitioner, which, otherwise is required to be
determined by the 2nd respondent on the basis of relevant material and by recording
cogent reasons. Under the said circumstances, the order of the learned Single Judge
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warrants interference and contentions advanced on behalf of the appellant in this regard
are accepted.
18. In the aforementioned view of the matter, the Writ Appeal is allowed and the order
of the learned Single Judge in W.P.No.2895 of 2019 dated 04.12.2020 and the
proceedings of the 2nd respondent dated 11.02.2019 are set aside. The 2nd respondent
shall pass appropriate reasoned order duly considering the explanation submitted by the
appellant/petitioner after affording due opportunity of hearing to all the parties, strictly in
accordance with law, within a period of eight (8) weeks, from the date of receipt of a
copy of this order. No order as to costs.
19. As a sequel, miscellaneous applications, if any, pending shall stand disposed of.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
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W.A.No.380 of 2021
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No.380 of 2021
24th September, 2021
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