K.Gopal vs State Of Andhra Pradesh
2022 Latest Caselaw 5660 AP

         THE HON'BLE SRI JUSTICE RAVI NATH TILHARI


  WRIT PETITION Nos.27607, 27608, 27609, 27610, 27612 &

                              27614 OF 2022


COMMON JUDGMENT:

       Heard Sri N. Sai Phanidra Kumar, learned counsel for the

petitioners,     learned      Government            Pleader     for    Municipal

Administration and Urban Development and Sri N. Ranga Reddy,

learned standing counsel for the respondents 2 and 3.

2. With the consent of the learned counsels for the parties, writ

petition is being disposed of finally, at this stage.

3. The present writ petition is filed with the following reliefs:

"Hon'ble Court may be pleased to pass an order or orders or direction more particularly one in the nature of a writ of mandamus declaring that the action of the 3rd respondent herein in taking steps to demolish petitioners' premises by demarcating the same, without considering the reply dated 11.08.2022 submitted by the petitioners herein to the notices issued by the Municipal authorities as arbitrary, illegal, contrary to the order dated 05.06.2000, passed by the erstwhile High Court of Andhra Pradesh in W.P.Nos.5263, 5150, 5949 and 5652 of 1999."

4. Learned counsel for the petitioners submits that the

petitioners' ancestors filed regular O.S.No.70 of 1966 for

permanent injunction restraining the same Municipality from

interfering with any portion of the building described in the

schedule annexed to the plaint or alternatively, otherwise

interfering with the future construction, which was decreed by the

court of the District Munisfi, Gunthakal on 23.01.1967, which

attained finality.

5. The operative portion of the decree reads as under:

"That the defendant municipality be and is hereby restrained from removing the deviations i.e., the stair case, opening of excess

windows, leaving of passage etc., by way of permanent injunction that the defendant-municipality be and the same also is hereby prevented by means of a permanent injunction from stopping the further construction of the building if it (construction) in going to be done in accordance with the approved plans; and that the defendant-municipality do pay plaintiff the sum of Rs.79 and do be its on own of Rs.264,67 being the costs of the suit...."

6. Learned counsel for the petitioners further submits that the

Municipality, issued some notices in the year 1999, with respect to

the same subject matter and challenging those notices Writ

Petition Nos.5267,5150,5949 and 5652 of 1999 were filed which

were disposed of by this Court by a common order dated

05.06.2000, by setting aside the notices impugned in those writ

petitions, with further direction to the 3rd respondent-the

Commissioner, Guntakal Municipality to give a fresh notice clearly

brining out the alleged contraventions and encroachment of the

petitioners giving two weeks time for making representation and on

such representation being made to consider the same in

accordance with law and pass necessary orders based on the

material produced by the petitioners and till such action was taken

the order of status quo as on that date was granted. Pursuant to

the order/judgment dated 05.06.2000, the Municipality issued

fresh notice dated 08.12.2000 but any final order was not passed.

The matter was kept pending for about twenty two years and on

30.07.2022 another notice dated 30.07.2022 was issued to the

petitioner mentioning the details of the alleged encroachment and

calling for the objections within fifteen days of receipt of the notice.

8. The petitioners submitted the reply/explanation dated

11.08.2022 to the notice dated 30.07.2022 inter alia submitting

that the construction on the ground floor and the first floor were

raised in the year 2014 after getting permission and during the

course of construction notice was issued on 19.04.1965 and

20.04.1965 on the same subject matter, upon which O.S.No.70 of

1966 was filed against the Municipal Authorities which was

decreed on 23.01.1967 which attained finality and was binding on

the Municipal Authority, but inspite thereof the authority was

trying to interfere and demolish the drainage etc, alleging as an

encroachment though nearly two feet of the petitioners' place had

already been taken. It was further submitted in the explanation

that similar notice could not be issued again which was in violation

of the principles of natural justice. The petitioners while

submitting the copy of the decree along with their reply, further

requested for some time to file copy of the judgment which they

had applied but could not obtain in the meantime.

9. The 3rd respondent has passed the impugned order dated

20.08.2022 rejecting the explanation and has proceeded for

demolition pursuant to the notice dated 30.07.2022 and the order

dated 20.08.2022.

10. The main submission of the learned counsel for the

petitioners is that the subject matter of the notice dated

30.07.2022 is covered under the decree of the suit in O.S.No.70 of

1966 which attained finality between the parties, and if sufficient

time was granted to them to submit the copy of the judgment, it

could have been easily ascertained by the respondents that the

subject matter of the suit as also the notice was the same but time

was not granted and hurriedly order was passed stating that the

petitioners failed to submit such documentary evidences and as

such the reply deserved no consideration.

11. Learned counsel for the petitioners further submits that

though the notice mentions that the alleged encroachments were

examined according to the records of the Town Surveyor and has

been recognized as encroachment and marks were placed on the

building but copy of any such record was not given to the

petitioners nor any such exercise was done in their presence.

12. Sri N. Ranga Reddy, learned standing counsel for the

respondent 2 and 3, on the basis of instructions received submits

that the subject matter of the suit is different which is with respect

to the building whereas the subject matter of the notice dated

30.07.2022 is different which is the encroachment made over the

public drain and the constructions raised over the public place.

13. He further submits that the encroachment over the public

drain has already been removed prior to the petitioners

approaching this Court, however the rest of the

encroachment/construction has not yet been removed.

14. I have considered the submissions advanced by the learned

counsels for the parties and perused the material on record.

15. From the submissions advanced by the learned counsels for

the parties as also from perusal of the record, the main dispute

appears to be, as to whether the property sought to be demolished

as encroachment/unauthorised is the same as was involved in

O.S.No.70 of 1966 or not. This is disputed question of fact which

at the first instance, cannot be determined by this Court in the

exercise of writ jurisdiction and required due determination by the

respondent authorities in the light of the explanation submitted by

the petitioners.

16. The court is of the considered view that once the petitioner

requested for some time to file the copy of the judgment of

O.S.No.70 of 1966, of which decree had already been filed along

with the explanation, the respondent authority ought to have

granted a reasonable time for filing copy of the judgment and on

consideration thereof, after being satisfied that the property was

different than the suit property with respect to which there was

decree of permanent injunction in favour of the petitioners and

against the Municipality, they ought to have proceeded further.

17. The above would have been inconsonance with the principles

of natural justice as also it could have avoided likelihood of any

violation of the court's decree. When for the last twenty two years,

the authorities did not take any step to finalize the matter even

after the order passed by this Court on 05.06.2000 in W.P.No.5263

OF 1999 and batch, the authorities in all reasonableness would

have granted a reasonable time to the petitioners to file copy of the

judgment etc. as was requested in their explanation.

18. The interest of justice would be met if the writ petition is

disposed of directing the 3rd respondent to pass fresh order

pursuant to the notice dated 30.07.2022, after considering the

petitioners' explanation dated 11.08.2022 as also the copy of the

judgment in O.S.No.70 of 1966, which the petitioners undertake to

file before the 3rd respondent within four weeks from today, and

such other documents as they want to file in support of their

explanation, within the same period. The copy of the relevant

extract of the records of the Town Surveyor recognizing the subject

matter of the notice as encroachment, be also given to the

petitioners within two weeks from today, against which if the

petitioners want to file some reply the same may also be done

within four weeks from today.

19. The fresh order shall be passed by the 3rd respondent within

a period of three months from today, in accordance with law, after

providing opportunity of hearing to the parties concerned.

20. Any further demolition shall not take place and the order

dated 20.08.2022 shall remain in abeyance for a period of three

months or till passing of the fresh orders by the 3rd respondent,

whichever is earlier. The final order to be passed shall supersede

the order dated 20.08.2022.

21. If the petitioners fail to file the documents as mentioned/

requested or the reply within the time stipulated, it would be open

for the 3rd respondent to pass fresh orders even in the absence of

those documents or the reply, within the period specified above but

according to law.

22. The petitioners shall also not encroach upon the public

drainage nor shall obstruct its course nor raise any other

construction over the same.

23. With the above directions, all the writ petitions are disposed

of finally. No order as to costs.

Consequently, the Miscellaneous Petitions if any pending in

this writ petition shall stand closed.

________________________ RAVI NATH TILHARI,J Date:29.08.2022 Note:

Issue CC by 02.09.2022.

B/o.

Gk.

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION Nos.27607, 27608, 27609, 27610, 27612 &

27614 OF 2022

DATE: 29.08.2022

GK.