Gorantla Bhaskara Rao vs The State Of Andhra Pradesh
2022 Latest Caselaw 8331 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               WRIT PETITION No.35603 of 2022

JUDGMENT:-

1.    Heard Sri P.Venkata Rao, learned counsel for the

petitioner and learned Government Pleader for Municipal

Administration for the respondent Nos.1 and 2, Sri G.Naresh

Kumar, learned counsel, representing Sri M.Manohar Reddy,

learned Standing Counsel for the respondent No.3 and Sri

M.Soloman Raj, learned Standing Counsel for A.P.S.R.T.C. for

the respondent No.4.

2. With the consent of the parties counsels, the writ petition

is being disposed of finally at this stage.

3. This writ petition under Article 226 of the Constitution of

India has been filed for the following relief:-

"In view of the reasons stated above, it is hereby prayed that this Hon'ble Court may be pleased to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Eviction Notice in E.R.No. /2022/WPRS 10, dated 18.10.2022 issued by the 3rd respondent directing the petitioner to vacate the petty shop within 3 days from the date of receipt of the said notice situated at 4 th respondent Bus Stand without providing an opportunity of hearing and without providing alternative place for running the petty shop as illegal, arbitrary, capricious, violation of principles

of natural justice and contrary to the fundamental rights guaranteed under Article 14, 19 (1) (g) and 21 of the Constitution of India and consequently direct the respondents not to evict the Petitioner from the petty shop in any manner and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

4. Learned counsel for the petitioner submits that pursuant

to the eviction notice dated 18.10.2022 served to the petitioner,

the respondent No.3 and its staff is trying to evict the petitioner

on the ground that the petitioner is occupying the road margin

by encroachment. He submits that infact there is no

encroachment by the petitioner and in this respect no

opportunity of hearing has been given to the petitioner. Only 3

days time has been granted to remove the alleged

encroachment, which is also not a reasonable time to enable the

petitioner to submit reply.

5. Sri G.Naresh Kumar does not dispute that the owner or

occupier of the premises asked to vacate, on the ground of

encroachment has a right to prove before the Commissioner

that such person has not made any encroachment.

6. Section 192 of the Municipalities Act, 1955 provides as

under:

"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) has 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."

7. A bare reading of Section 192 of the Act shows inter alia

that the Commissioner may cause to be removed any

encroachment etc., to which the owner or occupier of the

premises proves that any such projection, encroachment or

obstruction under clause (a) of sub-section (1) has existed for a

period sufficient under the law of limitation to give any person a

prescriptive title. In other words, under sub section (2) of

Section 192 of the Act, the owner or occupier of the premises

has a right to be given opportunity of hearing against the action

under sub section (1) of Section 192.

8. Consequently, the impugned notice dated 18.10.2022,

directing the petitioner to vacate, shall be considered only as the

notice to show cause with respect to the action proposed

therein.

9. Learned counsel for the petitioner submits that the

petitioner shall submit reply within a period of ten (10) days

from the date of receipt of copy of this order before the

respondent No.3.

10. In view of the aforesaid, the writ petition is being disposed

of finally with the consent, with the following directions:-

(i) The impugned notice of encroachment dated

18.10.2022 shall be treated by the respondent No.3 as the show

cause notice with respect to the contents thereof.

(ii) The petitioner shall submit reply within a period of

ten (10) days from the date of receipt of copy of this order.

(iii) The respondent No.3 shall pass appropriate orders

in accordance with law, within a further period of four (04)

weeks from the date of receipt of petitioner's reply.

(iv) If the petitioner fails to submit the reply, it shall be

open for the respondent No.3 to proceed in accordance with law

even in the absence of his reply/and pass orders.

11. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 04.11.2022 Note:-

Issue C.C in one week B/o SCS FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGG GGGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.35603 of 2022

Date: 04.11.2022

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