Rachamallu Gouthama Reddy, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 2410 AP

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

            W.P.No.21255 of 2019 & 1347 of 2020

COMMON ORDER:-

      The Writ Petition No.21255 of 2019 is filed under Article

226 of the Constitution of India for the following relief/s:-

      "... to issue an appropriate Writ, Order or direction more
      particularly one in the nature of Writ of Mandamus declaring the
      endorsement in Ref.No.83/G1/2016, dated 10.12.2019 issued by
      the respondent No.2 rejecting the application dated 17.10.2019

submitted by the petitioner seeking regularization of the residential building and the shop rooms bearing D.No.1/1715 situated at Yerramukkapalli, Kadapa, Y.S.R. District submitted under Section 455-A of the Greater Hyderabad Municipal Corporation Act, 1955, stating that regularization scheme introduced through G.O.Ms.No.14 expires by 31.08.2019 instead of considering it as per the provisions of Section 455-A of the Hyderabad Municipal Corporation Act, 1955 as arbitrary, illegal, colourable exercise of power, contrary to the provisions of the Hyderabad Municipal Corporation Act, 1955 and well established legal principles apart from being violative of fundamental rights guaranteed to the petitioner under Articles 14, 19, 21 of the Constitution of India and consequently direct the respondents to reconsider the application, dated 16.10.2019 strictly in accordance with Section 455-A of the Hyderabad Municipal Corporation Act, 1955 by setting aside the endorsement in Ref.No.83/G1/2016 dated 10.12.2019 issued by the respondent No.2 and pass such other order or orders ..."

2. Heard both sides.

3. The present Writ Petition is filed aggrieved by the

endorsement dated 10.12.2019 vide Ref.No.83/G1/2016

issued by the 2nd respondent. The 2nd respondent-Municipal

Commissioner has rejected the representation made by the

petitioner for regularization of his residential building.

4. The case of the petitioner is that he purchased an extent

of 00.261 cents in Survey No.84/1 of Nagarajupalli Village

Fields, Kadapa Mandal, Y.S.R. District which was registered

through Sale Deed document bearing No.2039 of 2005 dated

28.02.2005 for a valid consideration from one

G. Sathyanadham and two (2) others. In addition to that

extent of land the petitioner was in possession and enjoyment

of 00.239 cents in the same survey number which was

classified as Gramanatham/Gramakantham/Village site. It

was asserted in the Writ affidavit filed in support of the Writ

Petition that there is an extent of Ac 9.30 cents which is

Gramakantham land and number of people occupied the said

Gramakantham land and constructed the houses. The

petitioner further submits that the 2nd respondent is not

considering his case for regularization at the behest of the 4th

respondent who is politically enimical and who is trying to

occupy the property of the petitioner.

5. The contention of the Writ Petitioner in W.P.No.1347 of

2020 is that the Writ Petitioner in W.P.No.21255 of 2019 has

not approached this Court with clean hands and he mislead

this Court by stating/asserting that he has purchased the

property in Survey No.86/1 and 2 and he stated in the Writ

affidavit that he has purchased the property in Survey

Nos.84/1 and 2 which amounts to the suppression of the fact.

This Court feels that when there is a document showing that

the petitioner herein has purchased the property in Survey

No.86/1 and 2 merely mentioning/asserting as property in

Survey No.84/1 does not amount to misleading this Court or

suppression of the fact as document prevails over the

assertion made in the affidavit. Hence, the said contention is

rejected.

6. The 2nd respondent-Commissioner, Kadapa Municipal

Corporation in W.P.No.21255 of 2019 filed counter affidavit

stating that the petitioner herein has constructed house in

gramakantham land in survey No.84/1 of Nagarajupalli

Village Fields, Kadapa. The Madal Surveyor, Kadapa has got

surveyed and categorically stated that the petitioner has

constructed the house in survey No.84/1 which is a

gramakantam land in an extent of 126.6 square yards which

is equal to 2.61 cents and the petitioner is not entitled for

regularization as per the Building Penalization Scheme, as the

Scheme elapsed. Learned counsel for the 2nd respondent has

stated that the Government has issued G.O.Ms.No.14, dated

04.01.2019 to the public to regularize their un-authorized

structures granting limit by means of BPS Scheme basing on

Section.455(A) of Municipal Corporation Act, 1955. The said

scheme has been extended from time to time vide

G.O.Rt.No.334, dated 02.05.2019 and G.O.Rt.No.447, dated

05.08.2019 and the scheme was closed and the petitioner is

not entitled for any regularization. As the petitioner got

constructed the building in contravention of the provisions of

the Andhra Pradesh Municipalities Act, 1965 a notice dated

24.09.2019 was issued to him stating that the 2nd respondent

shall take action in accordance with law. Hence, prayed to

dismiss the Writ Petition.

7. For the above said contention, the counsel for the

petitioner submits that the land in survey No.84/1 and 84/2

is not Government land or panchayat land and it is a

gramkantam land, where the revenue/government/gram

panchayat have no claim over the gramakantam land and

admittedly the land in survey No.84/1 and 84/2 is a

gramakantam land.

8. Hence, the petitioner shall not be construed as an

encroacher of the government land. The said contention is

supported by the judgments reported in "Bayya Mahadeva

Sastry and others V. State of Andhra Pradesh, rep. by its

Principal Secretary, (Panchayat Department), Velagapudi, and

others1", "Nagarala Nirvasithula Welfare Association V.

Government of Andhra Pradesh and others2" and "Sigadapu

Vijaya V. State of Andhra Pradesh, rep. by its Principal

Secretary, Revenue Department and others3". Thus, relying on

the above cited judgments, the petitioner prayed to set aside

the impugned endorsement dated 10.12.2019.

9. The petitioner further submits that the respondent

authorities failed to consider the application made to the 2nd

respondent dated 16.10.2019, for regularization of the house

2020 (4) ALT 250 (S.B.) 2 2012 Law Suit (AP) 358 3 2015 (4) ALT 296

which was made under Section 455A of the Municipal

Corporation Act and not under the scheme as provided by the

Government vide G.O.Ms.No.14, dated 04.01.2019.

10. Thus, relying on the judgments cited supra, this Court

agree with the contention raised by the petitioner and the

petitioner cannot be termed as encroacher as the land belongs

to the gramakantam. Hence, the unofficial respondent has no

locus standi to make complaint against the petitioner herein.

The petitioner also further submitted that the unofficial

respondent is not a neighbour of the petitioner herein.

11. The further contention of the petitioner is that he made

an application under Section 455-A of the Greater Hyderabad

Municipal Corporation Act, 1955 but the 2nd respondent has

rejected the application basing on the G.O.Ms.No.14, dated

04.01.2019. He stated that the said rejection is not

maintainable as no application was filed under BPS scheme

and prayed to allow the Writ Petition, by setting aside the

endorsement in Ref.No.83/G1/2016, dated 10.12.2019.

12. The petitioner cannot countenance the above said

contention as the G.O.Ms.No.14, dated 04.01.2019 was issued

in exercise of the powers conferred under Section 455-A of the

Greater Hyderabad Municipal Corporation Act, 1955. The

petitioner ought to have questioned the said G.O. The

petitioner has not questioned the G.O.

13. The further contention of the petitioner is that the land

in an extent of Ac 9.30 cents in survey Nos.84/1, 84/2 is

classified as Gramakantham land and number of people have

occupied the said land and constructed houses and no action

was initiated against them. Only, the action was initiated

against the petitioner at the behest of the unofficial 4th

respondent who is the Writ Petitioner in W.P.No.1347 of 2020.

14. This Court feels that there is some force in the above

said submission when no action was initiated against the

people who made constructions in the land in an extent of

Ac 9.30 cents in survey Nos.84/1, 84/2, initiating action only

against the Writ Petitioner in W.P.No.21255 of 2019 amounts

to arbitrary action.

15. The contention of the unofficial respondent is that the

petitioner has encroached the land in survey Nos.84/1, 84/2

which is a government land. The said contention is untenable

as the said land in survey Nos.84/1, 84/2 is Grama Kantam

land, it cannot be treated as revenue or panchayat land hence,

the Writ Petitioner in W.P.No.21255 of 2019 cannot be treated

as an encroacher. Hence, the W.P.No.1347 of 2020 is liable to

be dismissed, accordingly, stands dismissed.

16. The W.P.No.21255 of 2019 is hereby disposed of with a

direction to the respondent authorities to reconsider the case

in W.P.No.21255 of 2019 as the construction made in survey

Nos.84/1, 84/2, which is not government land as per the

judgments cited supra and also to consider other contention

raised by the Writ Petitioner in W.P.No.21255 of 2019,

initiating action against the petitioner's property is being

arbitrary, when there are other constructions in the same

survey numbers i.e., Nos. 84/1, 84/2 without any permission

from the respective authorities. Till the reconsideration of the

petitioner's contentions, the respondents are directed not to

take any coercive steps like demolition or dispossession of the

petitioner herein over the subject property.

16. Accordingly, both the Writ Petitions are disposed of.

There shall be no order as to costs.

Miscellaneous Petitions pending, if any, shall stand

closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 06-05-2022 EPS

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

W.P.Nos.21255 of 2019 & 1347 of 2020

Dated:06-05-2022

EPS

In the cited judgments the learned single Judge has relied on the

judgment of the Hon'ble Apex Court reported in "Rajatha Enterprises

V. S.K.Sharma and Others," reported in 1989 AIR 860 and held that the

neighbour cannot approach the High Court under Article 226 of the

Constitution of India.

As per the Hon'ble Apex Court judgment when there is evidence

that the builder constructed the building with dishonest intention,

fraud or negligence then the Writ is maintainable.

In the present case admittedly the unofficial respondent No.8

has constructed the building without leaving set backs and jutting

towards the road and laid an iron stair case on the road which

endangers to the public. When an enactment provides to take action

against the violator, if the authority does not act, then the neighbour

can definitely approach this Court under Article 226 of the

Constitution of India when his right to enjoy the property is deprived

of either corporeal, incorporeal right viz., light, air etc when there is

an invasion.