Andhra Pradesh High Court - Amravati

Yarrala Nagaraju, S/O Late ... vs State Of Andhra Pradesh, on 28 November, 2022

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                WRIT PETITION NO. 34 OF 2015

ORDER:

1) The present Writ Petition came to be filed

questioning the action of the Respondents in laying the

road through land in Survey No. 104/2 admeasuring

Acres 0.25 Cents situated at Uttarakanchi Village,

Prathipadu Mandal, East Godavari District, without

acquiring the same under the provisions of the Land

Acquisition Act, as illegal, improper and incorrect.

2) The averments in the affidavit, filed in support of the

Writ Petition, show that the father of the Petitioner

purchased land to an extent of Acres 3.49 Cents in Survey

No. 104/2 in the year 1979 and after his demise, the

Petitioner become the sole and absolute owner of the

property and claims to be in physical possession of the

same.

3) It is said that, while the Petitioner was residing in

Hyderabad, some persons illegally grabbed the land to an

extent of Acres 0.10 Cents out of Acres 0.25 cents and, as

such, he instituted a Suit for declaration and recovery of

possession vide O.S. No. 87 of 2013. Initially, an order of

injunction came to be passed.

4) While the matter stood thus, on 30.12.2014, when

the Petitioner visited his home town, he was surprised to

notice a stone laid on 14.12.2014, for laying a road from

Uttarakanchi Village to Sarbavaram Village, through his

land. The Petitioner raised objection before the 7th

Respondent, who is the contractor, but to no avail. A legal

notice was issued to the Respondents restraining them

from laying a road through his land, but, however, nothing

materialized in-spite of receipt of notice. Hence, the

present Writ Petition came to be filed seeking a direction

to the Respondents not to lay a road through the land of

the Petitioner.

5) This Court vide Order dated 07.01.2015 directed

"status-quo" to be maintained. Later on, a Vacate Stay

Application came to be filed by Respondent No.5,

disputing the averments made in the affidavit filed in

support of the Writ Petition.

6) It is stated that, the Writ Petitioner did not file his

title deeds like, Sale Deed or Partition Deed to prove his

title over the alleged property. It is further stated that, the

Petitioner herein has intentionally omitted to mention the

boundaries of his property, more so, when the total extent

of the land is about 3½ acres, while the claim is only

Acres 0.25 cents. In-fact, it is urged that, on his own

showing the Petitioner stated that the property was

grabbed by some unknown persons. It is further stated

that, the Respondents herein have not laid any road

through the land of the Petitioner and having only

upgraded the road by laying a cement concrete road.

7) It is stated that, a road is in existence since last 40

years, which is also used by A.P.S.R.T.C. for plying the

buses. It is said that, though, the Respondents have not

touched the land of the Petitioner, Contempt Case is filed

as if showing the road has been laid through the property

of the Petitioner. In-fact, it is urged that upgradation of

road was prior to the interim order passed and that the

Respondents have not touched any private property. It is

further averred in the affidavit that the title of the

Petitioner, to the property in dispute, is under

adjudication and, as such, the Petitioner cannot claim to

be the owner of the property. The Tahsildar, Prathipadu

Mandal, submitted a report stating that Survey No. 104/2

is Inam Punja Land. It is further stated that, the

Department upgraded the existing road under PMGSY

Scheme and the allegation that road came to be laid

through the land of the Petitioner, is incorrect and bad in

law.

8) The point that arises for consideration is, whether

the relief sought for by the Petitioner can be granted in this

Writ Petition?

9) Reiterating the averments made in the affidavit filed

in support of the Writ Petition, the learned Counsel for the

Petitioner mainly submits that, patttas, adangals and the

pattadar passbooks clearly indicate that the Petitioner is

the owner of the land and, as such, laying of road through

the said land is illegal, improper and incorrect. He took us

through the documents and also the decree passed by the

Civil Court in O.S. No. 87 of 2013 in support of his plea.

10) On the other hand, learned Government Pleader for

Panchayat Raj would submit that, in view of the disputed

questions of fact, this Court directed the Junior Civil

Judge, Prathipadu, to submit a report. Pursuant thereto, a

report, dated 27.01.2020, came to be submitted through

Ist Additional District Judge in-charge of Principal District

Judge, Rajamahendravaram, before this Court. A perusal

of the same would indicate that the land through which a

road has been laid is a "Grama Kantam" land. In view of

the above, he pleads that, not only the report of the Junior

Civil Judge, Prathipadu, but the documents enclosed and

filed along with the Counter would show that, in the

adangal the said land is shown as "Grama Kantam" and

only through the said land road is passing. In view of the

above, it is urged that there are no merits in the Writ

Petition and the same is liable to be dismissed.

11) In reply, the learned Counsel for the Petitioner would

submit that, if there is any dispute with regard to location

of the property, a Surveyor can be asked to submit the

report and if any road is laid through the land of the

Petitioner, necessary steps be taken in accordance with

law.

12) It is to be noted here that, the Judgment in O.S.

No.87 of 2013 was delivered on 24.04.2019. In the said

case, the Plaintiff, who is the Petitioner herein sought a

direction against the Defendant Nos. 1 to 5 for declaration

of tile over "B, C, D & E" portion of the plaint in plaint "B"

schedule property; for delivery of vacant possession of

plaint "B" schedule property; and for mandatory

injunction, directing the Defendants to remove

unauthorized constructions made at "B, C, D and E"

portion in plaint schedule property.

13) From the above, it is clear that, the Petitioner herein

requested the Senior Civil Judge, not only to declare him

as the owner of "B, C, D and E" portion in plaint schedule

property, but also sought for a mandatory injunction

directing the Defendants to remove unauthorized

constructions made in "B, C, D & E" portion of the plaint

"B" schedule property, which is said to have been decreed.

Therefore, the judgment of the Civil Court, in my view,

may not come to the rescue of the Petitioner, for the

reason that, there were some unauthorized structures

raised by the contesting Defendants therein, which were

sought to be removed by declaring the Petitioner as owner

of the property. There is no reference to existence of road

or removal of the road etc., in the Suit proceedings.

Further, the report of the Civil Judge show that, he

secured the presence of Mandal Surveyor, Prathipadu,

Village Revenue Officer, Uttarakanchi Village, Gram

Panchayat Secretary, Uttarakanchi, visited the said place

and noted down the physical features of the road and land

in Survey No. 104/2 with their assistance and also with

the help of F.M.B and Field Map in Survey No.104/2 of

Uttarakanchi Village. The report submitted by the Junior

Civil Judge to this Court on 24.01.2020 is as under:

"The Field Map shows that the land in Survey No.104/2 was situated in between the roads leads from Uttarakanchi to Peddipalem and Uttarakanchi to Lampakalova Village. There are shops on either side of the road State Bank of India in Survey No. 104/2.

The Panchayat Raj road was started from Uttarakanchi Village Center to Peddipalem. The said road is consisting CC road for some extent and there is a old gravel road/mud road for some extent. The total CC road is 130 mts and from there the road is a old gravel road/mud road up to Peddipalem. The APSRTC Bus from Kakinada to Peddipalem is passed through the road situated in Survey No. 104/2. As per village 'A' Register the land in Survey No.104/2 is situated in Grama Kantam and the road was passing since 1927. The CC road was there for 20 mts from village center. Thereafter 15 mts mud/gravel road. Later some extent CC road with 12 feet width for about 100 mts. There is a 6 feet road margin on both sides of the CC road and permanent open drainage on both sides. The said panchayath Raj road was going upto Peddipalem Village and after 150 mts., there is a mud/gravel road (katcha road). The extension of CC road was not completed till today through Survey No. 104/2 in Uttarkanchi

Village of Prathipadu Mandal, East Godavari District."

14) From the above report, it is very much clear that,

buses plying from Kakinada to Peddipalem are passing

through the road situated in Survey No. 104/2 and that

the State Road Corporation is plying buses since many

years. As per Village "A" Register, the land in Survey

No.104/2 is shown as 'Grama Kantam". In-fact, the Report

shows that the road is passing through the said land since

1927. A CC road was there for 20 meters from Village

Center and, thereafter, 15 meters mud/gravel; later to

some extent CC road with 12 feet width for about 100

meters.

15) Having regard to the above, it is clear that the