Heard Sri Kambhampati Ramesh Babu vs Administration For The
2023 Latest Caselaw 4042 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

       WRIT PETITION Nos.23193 & 23195 OF 2023

COMMON JUDGMENT:-

     Heard Sri Kambhampati Ramesh Babu, learned counsel

for the petitioner and learned Government Pleader for Municipal

Administration for the respondent No.1 and Sri G. Naresh

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

learned Standing Counsel for the respondent Nos.2 and 3.

2. The petitioner was issued a provisional order/notice

No.14/1027/SAP/UC/2023, dated 22.07.2023, inter alia on the

ground that he was raising unauthorized construction in the

premises of D.No./Plot No. 11-2-51, situated at Boya Colony

Street/Colony, Boya Colony area, Sattenapalle Municipality

Limits, contrary to the provisions of APM Act and APMR & UDA

Act, Bye-laws made there under. The details of the unauthorized

constructions were mentioned in the said notice. One of the

unauthorized constructions as mentioned was that for road

widening as per the Rule 7.29 Sq.m was to be left, but as per

ground nothing was left. Besides, with respect to the setback

also, setback side No.1, there were deviations. The petitioner

did not submit any reply to the provisional order. The same

was confirmed vide order of confirmation dated 02.08.2023,

directing the petitioner to bring down the offending construction

within a period of seven (07) days, otherwise action would be

initiated against him.

3. The petitioner did not comply with the order of

confirmation. Consequently, the encroachment notice dated

29.08.2023 was issued. It was inter alia mentioned that the

petitioner was constructing house contrary to the rules as also

contrary to G.O.Ms.No.119, dated 28.03.2017. The petitioner

had donated some portion of the land vide Doc. No. 5639/2023

as part of road widening for the public purpose to the

Municipality, but on that part also the construction was being

raised. Also referring to the provisional and the confirmation

order, the petitioner by means of this notice was directed to

remove the constructions.

4. Thereafter, the petitioner submitted the representation

dated 30.08.2023 against the order of confirmation (Ex.P5). He

also submitted reply dated 31.08.2023 to the Commissioner of

the respondent No.2, to the encroachment notice dated

29.08.2023.

5. W.P.No.23193 of 2023 has been filed challenging the

encroachment notice dated 29.08.2023 and W.P.No.23195 of

2023 has been filed with respect to the same property

challenging the order of confirmation dated 02.08.2023.

6. Both the writ petitions are decided by the common

judgment.

7. I have considered the submissions advanced by the

learned counsels for the parties and perused the material on

record.

8. Learned counsel for the petitioner submits that in the

representation/reply dated 31.08.2023, the petitioner has

specifically stated that the petitioner did not encroach upon the

land donated for road widening. According to the submission,

because of incorrect measurement, the provisional order and

the confirmation order came to be passed. Consequently, the

encroachment notice is also bad and the petitioner's reply dated

31.08.2023 deserves consideration.

9. Sri G. Naresh Kumar, learned counsel appearing for the

respondent Nos.2 and 3, submits that the petitioner did not

avail opportunity of hearing by filing reply to the provisional

order and consequently there is no illegality in the order of

confirmation nor with the encroachment notice.

10. Though the petitioner should have filed reply to the

provisional order/show cause notice and ought to have availed

the opportunity of hearing before the respondent No.2 which he

did not. However, right to property is a right guaranteed by

Article 300-A of the Constitution of India. Its deprivation will

have serious civil consequences. The order of confirmation has

yet not been implemented for which encroachment notice dated

29.08.2023 has been issued to which petitioner has already

filed reply on 31.08.2023 which is pending before respondent

No.2. It would be in the interest of justice to provide one

opportunity of consideration of petitioner's reply dated

31.08.2023 against the encroachment notice dated 29.08.2023.

11. Consequently, without expressing any view on the

contention of the petitioner in the writ petition as also in the

reply submitted, as to whether, the petitioner raised

construction over the donated land or not, this writ petition is

being disposed of finally, with direction to the respondent No.2

to consider the petitioner's representation dated 31.08.2023

(Ex.P6) and pass appropriate order thereon.

12. To determine the plea of the petitioner that the

measurement in the provisional order is not correct, the land in

question shall be got measured to find out the extent of

unauthorized construction over the land donated to the

Corporation.

13. Consequent upon such decision, the respondents shall

proceed to execute the order of confirmation if the occasion so

arises.

14. Let the decision as aforesaid be taken within a period of

four (04) weeks from the date copy of this order along with copy

of Ex.P6 is served to the respondent No.2.

15. Till such time, the order of confirmation and

encroachment notice shall remain in abeyance.

16. The petitioner shall serve copy of this order as aforesaid

within a period of one (01) week from the date of its receipt,

failing which the protection as granted under this order would

not be available to the petitioner and it shall be open for the

respondent Nos.2 and 3 to proceed with the encroachment

notice.

17. The petitioner shall not raise any further construction

over the property in question and shall stop construction work

immediately.

18. Both the writ petitions stands disposed of with the

aforesaid directions.

No order as to costs.

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

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date: 05.09.2023 Note:-

Issue C. C by 12.09.2023 B/o:- SCS

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION Nos.23193 & 23195 OF 2023

Date:05.09.2023 Scs.