Smt. T. Seshamma vs The State Of Andhra Pradesh
2022 Latest Caselaw 5087 AP

             HIGH COURT OF ANDHRA PRADESH
                   MAIN CASE: W.P. No. 25065 of 2022

                               PROCEEDING SHEET

SL.     DATE                                ORDER                               OFFICE
NO.                                                                              NOTE

01.   10.08.2022    RNT, J

                             Heard Sri M. V. S. Suresh Kumar, learned
                    senior counsel, assisted by Sri Karra Srinivas,
                    learned counsel for the petitioner.
                             2. Sri N. Ranga Reddy, learned counsel,
                    takes      notice      for     respondent       No.2-the

Commissioner, Kavali Municipality, Kavali.

3. Learned GP for Municipal Administration takes notice for respondent No.1

4. Sri M. V. S. Suresh Kumar, learned senior counsel for the petitioner, submits that the petitioner was granted house site patta for housing purposes in Sy.No.2048/B situated at Kavali to the extent of Ac.0.01 cent on 20.05.1993 and she constructed house. In 2005, the 2nd respondent or its authorities tried to evict the petitioner without taking due course of law and consequently, she filed O.S.No.212 of 2005 which was decreed vide judgment dated 30.01.2013. In the said suit, the municipality was the defendant and it had taken a plea that the patta granted to the petitioner was bogus one, but the defendant failed to prove the same. Copy of the house site patta dated 20.05.1993 was filed in the suit as Ex.A1 with respect to which along with the other documents Exs.A2 to A5 the Civil Court recorded a finding that the defendants failed to prove those documents to be bogus. The suit was decreed restraining the municipality from interfering with the plaintiff's

SL. DATE ORDER OFFICE NO. NOTE possession and enjoyment of the plaint schedule property, which is the subject matter in this writ petition. Learned senior counsel for the petitioner submits that the decree in the suit attained finality in the absence of any challenge thereto by the municipality.

5. The 3rd respondent, private person, filed some complaint before the 2nd respondent and also filed W.P.No.26165 of 2018 raising the grievance that her representation was not been considered by the 2nd respondent, upon which, this Court disposed of the writ petition vide order dated 24.08.2018, directing the 2nd respondent to consider and decide the same. Pursuant thereto, the 2nd respondent directly issued notice of removal dated 11.09.2018 without giving any opportunity of hearing to the petitioner, who therefore filed W.P.No.33938 of 2018, which was disposed of vide judgment/order dated 19.09.2018 directing that the impugned notice of removal dated 11.09.2018 shall be treated as show cause notice and the petitioner was granted liberty to file explanation within the specified time and the 2nd respondent was directed to consider the same and pass final orders, strictly in accordance with law, after giving notice to all the stake holders, and till such exercise was to be taken, this Court directed that status quo with regard to the subject construction shall be maintained.

6. The 2nd respondent authorities passed an order dated 11.02.2019 directing the petitioner to remove the encroachment liberally with her own expenses, failing which, the same shall be removed by the municipal authorities.

SL.   DATE                               ORDER                                   OFFICE
NO.                                                                               NOTE

Challenging the order dated 11.02.2019 the petitioner filed W.P.No.3069 of 2019 which was dismissed on 04.12.2020, against which the petitioner filed W.A.No.379 of 2021, which was allowed by the Division Bench of this Court, vide judgment dated 24.09.2021. The order dated 04.12.2020 and the proceedings of the 2nd respondent dated 11.02.2019 were set aside and the 2nd respondent was directed to pass appropriate reasoned order duly considering the petitioner's explanation after affording opportunity of hearing to all the parties, strictly in accordance with law, within the specified time. It is thereafter the impugned order dated 18.07.2022 has been passed by the 2nd respondent.

7. Sri M. V. S. Suresh Kumar, learned senior counsel for the petitioner, submits that the decree dated 30.01.2013 attained finality between the petitioner and the 2nd respondent and in view thereof the patta of the petitioner was not bogus and any stand contrary to that decree cannot be taken by the municipality. He further submits that the 2nd respondent has not considered the objection of the petitioner in the light of the decree of the Civil Court in its order, quo the house site patta.

8. He further submits that with respect to the two points decided by the 2nd respondent- Commissioner, on the first point, it has only extracted the extent of the alleged encroachment by the petitioner which is the same as was mentioned in the judgment of this Court dated 04.12.2020 in W.P.No.3069 of 2019, whereas this Court in W.A.No.379 of 2021 observed that

SL. DATE ORDER OFFICE NO. NOTE though the learned single Judge went into the aspect of extent of alleged encroachment by the petitioner and recorded a finding although there was no such finding by the 2nd respondent to that extent, and consequently, his submission is that on that first point of extent of encroachment recorded by the 2nd respondent is also without any basis and based on the findings recorded by the learned single Judge in W.P.No.3069 of 2019, which was finally set aside.

9. On the second point, learned senior counsel for the petitioner submits that the 2nd respondent has placed reliance upon the report of the Tahsildar bearing Rc.B.721/2022, dated 23.05.2022 which was a fresh report called, but the copy thereof was not provided, neither before nor after passing of the impugned order. Any opportunity of hearing against the said report, upon which reliance has been placed, was not afforded to the petitioner. Previously also when the writ appeal was allowed, the 2nd respondent had placed reliance upon the earlier report of the Tahsildar, the copy of which also was not provided to the petitioner, and consequently, the previous order being in violation of the principles of natural justice was set aside in the writ appeal.

10. In view of the above submissions, the matter requires consideration.

11. Sri N. Ranga Reddy, learned counsel for the 2nd respondent, prays for and is granted 4 weeks time to file counter affidavit.

12. If counter affidavit is filed, the reply affidavit, if any, may be filed within a further period of 2 weeks.

13. Issue notice to respondent No.3.

SL.   DATE                         ORDER                            OFFICE
NO.                                                                  NOTE

14. In addition to the normal mode of service, the petitioner shall also take out personal service through RPAD and file proof of service before the next date of listing.

15. List on 28.09.2022.

16. In view of the submissions advanced, prima facie case for grant of interim order is made out.

17. Accordingly, the operation of the impugned order shall remain stayed till the next date of listing.

_________ RNT, J Dsr