V.S.Md. Yaqub vs The State Of Andhra Pradesh
2022 Latest Caselaw 7364 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

               WRIT PETITION No.30546 of 2022

JUDGMENT:-

1.    Heard Sri Syed Kaleemulla, learned counsel for the

petitioner and Sri P.Anand Surya, learned counsel, representing

Sri Suresh Kumar Reddy Kalava, learned Standing Counsel for

the respondent No.2.

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:-

"It is therefore prayed that this Hon'ble Court may be pleased declaring the action of the 2nd respondent in marking 3.6 feet wide X 47 feet length area of the house/shops of the petitioner bearing D.No.3/1590-5 situated in Sionpuram of Kadapa city of YSR Kadapa District for demolition claiming the same to be the part of already acquired area without any rights and without following any due process of law is highly illegal, arbitrary and against the provisions of Article 300-A of the constitution of India and consequently to direct the respondents not to demolish any part of the said house/shops of the petitioner and to pass such other order or orders may deem fit and proper in the circumstances of the case."

4. Learned counsel for the petitioner submits that the

petitioner's vendor, Nakat Firdouse earlier filed W.P.No.7348 of

2010 against the same Municipal Corporation with respect to

the same dispute for widening of the road, disputing the area of

the acquired land in acquisition proceedings under the Land

Acquisition Act. The case of Nakat Firdouse in that writ petition

was that the land to an extent of 702 Square feet was acquired

and compensation was paid to her. She herself dismantled

structures. The case of the Municipal Corporation was that the

structure up to 10.4 feet, where 5 pillars were existing from

north to south was dismantled but the rest of the pillars in 3.6

feet, which also fall in the acquired area were not dismantled on

the apprehension of damage to the residential structure.

5. The W.P.No.7348 of 2010 was disposed of vide judgment

and order dated 15.06.2012, holding that, whether the area

marked by the Municipal Corporation for demolition for the

purpose of road widening falls within the acquired area or not is

a disputed question of fact, but granting liberty to the petitioner

therein (the present petitioner's vendor) to make representation

to the respondent No.2, the Superintending Engineer, R&B,

Kadapa, with a direction to him to take appropriate decision

based on the material available and to be made available by the

petitioner after giving opportunity. It was also provided that in

case the disputed area did not fall within the acquired land, the

authorities were not precluded from acquiring the same in

accordance with law. Operative part of the judgment/order

dated 15.06.2012 reads as under:-

"6. In view of the above facts and circumstances and the statement made in the counter affidavit, the petitioner is given liberty to make a representation to the 2 nd respondent, who shall take appropriate decision based on the material evidence to be made available by the petitioner and after giving opportunity. It is made clear that in case the area now is dispute does not fall within the acquired land, this order will not preclude the authorities from acquiring the same in accordance with law for the purpose of widening the road."

6. The petitioner had purchased from his vendor i.e. the

petitioner of W.P.No.7348 of 2010, in the year 2013. In this

petition also the petitioner has raised the same grievance that

the area purchased does not fall within the acquired area, which

is again the same disputed question of fact, for which the

Commissioner has passed an order on 23.09.2022 served on the

petitioner on 24.09.2022, directing to remove the effected road

widening portion giving the measurement and mentioning that

the compensation was already paid by following due process.

7. Sri P.Anand Surya, on the basis of written instructions

submits that the petitioner's vendor did not file any

representation and consequently the authorities are now

proceeding for road widening as the said land construction lies

within the acquired area.

8. This Court has already held in W.P.No.7348 of 2010 that

the question whether the land of the petitioner's vendor,

purchased by the petitioner, falls in the acquired land or not, is

a disputed question of fact which cannot be investigated in the

writ petition. However, liberty was granted to the petitioner's

vendor to file representation, which was not filed. The

proceedings for road widening were not taken for last nine (09)

years, therefore this Court is of the view that the valuable right

of the petitioner being involved, it would be in the interest of

justice to direct the Commissioner to decide the petitioner's

objection already filed on 24.09.2022 against the order dated

23.09.2022, by a reasoned order recording the finding based on

material on record, if the disputed portion falls in the acquired

area or not and if necessary, measurements as per the record,

be also taken by survey if possible, as also keeping in view the

directions contained in the judgment dated 15.06.2012 passed

in W.P.No.7348 of 2010.

9. It is ordered accordingly as in Para No.8.

10. The Commissioner shall take decision within a period of

two (02) weeks from the date of production of copy of this order

before the said authority.

11. The petitioner to serve copy of this order within a period

of one (01) week from today. If the copy is not served, the

benefit of this order will not be available to the petitioner.

12. For a period of four (04) weeks or till the decision is taken

by the Commissioner whichever is earlier no coercive action

shall be taken, pursuant to the order dated 23.09.2022.

13. With the aforesaid directions, writ petition is disposed of

finally.

14. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 26.09.2022

Note:-

Issue C.C by 27.09.2022 B/o SCS FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGG GGGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.30546 of 2022

Date: 26.09.2022

Scs