G Sudhakar Babu vs The State Of Ap
2023 Latest Caselaw 1368 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                     WRIT PETITION No.5968 of 2023

ORDER:-

      Aggrieved by the impugned notice, dated 02.03.2023, that

was issued by respondent No.2 under Sections 189, 192, 360

and 361 of the A.P. Municipalities Act, 1965 (for short, "the

Act") to remove the shop of the petitioner situate in Nagulagunta

of Babu Agraharam, Srikalahasti of Tirupati District, the instant

Writ Petition has been filed by the petitioner to declare the said

notice as illegal.

2. Heard Sri Posani Venkateswarlu, learned Senior Counsel

representing Sri T. Janardhan Rao, learned counsel for the

petitioner, learned Assistant Government Pleader for Municipal

Administration & Urban Development appearing for respondent

No.1 and Sri N. Ranga Reddy, learned Standing Counsel for

respondent No.2.

3. As per the case pleaded by the petitioner, his father has

occupied a Government poramboku land in an extent of 24 x

18: 43 Sq. Ft in Nagulagunta of Babu Agraharam, Srikalahasti

of Tirupati District, long back in the year 1970 and installed a

shop in the said occupied site and used to do sale of soda

business in the said shop. The 2nd respondent - Municipality

also recognized the possession of his father in respect of the

said land and has collected taxes from him towards

encroachment fee of Rs.45/- half-yearly. After the demise of the

father of the petitioner, it is stated that the petitioner has been

continuing to do business in the said shop, and he has been

paying the said encroachment tax to the Municipality.

Electricity power supply connection was also given to the said

shop, which is being run in the name and style "Ramachandra

Cool Drink Shop". It is stated that when the petitioner has been

in possession and enjoyment of the said shop for all this long

length of time from the time of his father that a notice was given

to the petitioner on the representation made by the neighbour of

the petitioner to the 2nd respondent - Municipality alleging that

he has encroached on to the Government site and to remove the

said shop from the said place. The petitioner has submitted his

explanation to the same. The same is now pending

consideration before the 2nd respondent - Municipality.

4. Learned Senior Counsel would submit that when the

petitioner has been in possession of the said site for a long time,

he would acquire prescriptive title in respect of the said land

and in such case, clause (2) of Section 192 of the Act mandates

that the 2nd respondent - Municipality has to make a reasonable

compensation to the petitioner, who suffers damages by removal

of the said shop from the said place and without making any

offer or paying the compensation as contemplated under clause

(2) of Section 192 of the Act that the 2nd respondent -

Municipality has been making an effort to remove the said shop

from the said site.

5. He would also contend that as per the judgment of the

Apex Court in Olga Tellis vs. Bombay Municipal

Corporation1, the Constitutional Bench held that even when

any such encroachment is removed that the Municipality has to

provide an alternative accommodation for the encroacher. So,

on these two grounds, the petitioner now challenges the

impugned notice that was given to the petitioner for removal of

the said shop.

6. Sri N. Ranga Reddy, learned Standing Counsel for the 2nd

respondent would submit that the explanation offered by the

petitioner is still under consideration and he would submit that

it is not stated in the said explanation that the petitioner is

entitled to compensation or to any alternative accommodation.

He would further submit that at any rate, the explanation of the

petitioner is yet to be considered and a final order is yet to be

passed on it. Therefore, he would submit that after considering

(1985) 3 SCC 545

the said explanation and the law in this regard that they would

pass appropriate final order according to law on it.

7. Therefore, in the said facts and circumstances of the case,

as the explanation submitted by the petitioner is yet to be

considered by the 2nd respondent and a final order is yet to be

passed, this Writ Petition is disposed of with a direction to the

2nd respondent to consider the explanation of the petitioner and

pass appropriate final orders according to law on it. While

considering the said explanation and also while passing the said

final order, the 2nd respondent has to take into consideration

the mandate of law as contemplated under clause (2) of Section

192 of the Act regarding entitlement of the petitioner for

payment of compensation towards damages. As it is a statutory

requirement, even if the same is not pleaded in the explanation,

still the 2nd respondent is under legal obligation to pass orders

according to law as contemplated under clause (2) of Section

192 of the Act. Further, the 2nd respondent has to also consider

the judgment of the Constitutional Bench of the Apex Court in

the case of Olga Tellis vs. Bombay Municipal Corporation

(referred supra) to provide any alternative accommodation to the

petitioner. After considering the explanation of the petitioner in

the light of the law discussed supra, final orders are to be

passed by the 2nd respondent. Till the said final orders are

passed in terms of the above directions, no coercive steps to

demolish or to remove the said shop shall be taken by the 2nd

respondent. No costs.

Miscellaneous petitions, if any pending, in the Writ

Petition, shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 10.03.2023 AKN

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

WRIT PETITION No. 5968 of 2023

Date: 10-03-2023

AKN