M.Ramchandrarao vs Dhonemuncipality. Represented ...
2023 Latest Caselaw 2908 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                WRIT PETITION No.5320 OF 2017

JUDGMENT:-

1.    Heard     Sri    P.   Rajasekhar,   learned   counsel     for    the

petitioner and Sri N. Ranga Reddy, learned Standing Counsel

for the respondent No.1 and Sri Vivekananda, learned counsel,

representing Sri Virupaksha Dattatraya Gowda, learned counsel

for the respondent Nos.2 and 3.

2. 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 to issue any writ or order or direction more particularly in the nature of Writ of Mandamus declaring the impugned action and failure to discharge statutory duties in not taking further action in terms of notices dated 1.10.2014 and 27.02.2015 by the Respondent No. 1 herein to remove the illegal constructions made by the Respondent Nos. 2 and 3 encroaching the public nallah and public toad adjoining the House No. 9-122, Raghavendra street, Kothapeta, Dhone town, Kurnool District, Andhra Pradesh State as arbitrary, illegal and in violation of Article 14 of the Constitution of India and the provisions of Andhra Pradesh Municipalities Act, 1965 and consequently direct the Respondent No. 1 to take further action in terms of its notices dated 1.10.2014 and 27.02.2015 for removal illegal structures made by the Respondent Nos. 2 and 3 encroaching the public nallah

and public road adjoining the House No. 9-122, Raghavendra street, Kothapeta, Dhone town, Kurnool District, Andhra Pradesh State in accordance with law in interest of justice and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case".

3. Learned counsel for the petitioner submits that the

respondent Nos.2 and 3 raised unauthorized

construction/structure on the public drainage on the southern

side of H.No.9-122, Raghvendra Street, Kothapeta, Dhone,

Kurnool District, Andhra Pradesh State. The 1st respondent,

Dhone Municipality issued show cause notice dated 01.10.2014

under Sections 192 (1) (2) (3) and Section 360 of the Andhra

Pradesh Municipalities Act that the said construction was

highly objectionable and directed the respondent Nos.2 and 3 to

remove such encroachment. Another notice to the same effect

was again served on 27.02.2015. Inspite thereof, the

respondents did not remove the unauthorized construction

made by encroaching upon the public drainage. The authorities

also did not take further action.

4. Sri Vivekananda, learned counsel for the respondent Nos.

2 and 3 submits that the respondents have submitted reply on

13.10.2014 to the notice dated 01.10.2014. In the reply their

stand is that they have not made any unuseful construction. It

is further submitted in the reply that with regard to the house

Door No. 9/122, O.S.No.450 of 2011 is pending on the file of the

Additional Senior Civil Judge, Kurnool and in view thereof,

request was made to re-consider the notice issued to the

respondents.

5. Learned counsel for the petitioner submits that the

O.S.No.450 of 2011, is not with respect to the construction

raised on the public drainage, but is with respect to a different

property, in between the houses of the petitioner and the

respondent Nos.2 and 3.

6. It is admitted to all the learned counsels for the parties

that the final orders have not been passed by the 1st respondent

till date.

7. Having considered the submissions advanced by the

learned counsels for the parties, this court is of the view that

the respondent No.1 having issued show cause notice to the

respondent Nos.2 and 3 and they also having filed the response,

the respondent No.1 ought to have brought a logical end to the

proceedings initiated against respondent Nos.2 and 3 by

passing order in accordance with law.

8. In the result, the writ petition is being disposed of finally

with direction to the 1st respondent, the Commissioner of Dhone

Municipality, to consider the reply dated 13.10.2014, to the

show cause notice dated 01.10.2014 issued to respondent Nos.2

and 3, and after affording opportunity of hearing to them as also

to the petitioner pass appropriate order in accordance with law.

9. While doing so, the respondent No.1 shall ascertain if the

subject matter of the show cause notice is same or different as

involved in O.S.No.450 of 2011 as also the pendency of that suit

and the orders passed in the suit. If there is a legal impediment

in passing final order the same shall be recorded and the parties

shall abide by such order in the suit.

No order as to costs.

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

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 05.05.2023 SCS

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.5320 OF 2017

Date:05.05.2023 Scs.