Telangana High Court
Islavath Shanker vs Yerroboina Venkateswarlu on 9 November, 2022
Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.730 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Srinivas Reddy, learned counsel for the
appellants; Mr. Ramesh Chilla, learned counsel for
respondent No.1/writ petitioner; Ms. Borra Lakshmi
Kanakavalli, learned Assistant Government Pleader for
Municipal Administration and Urban Development
Department, appearing for respondent No.2; Mr. M.Ram
Mohan Reddy, learned Standing Counsel appearing for
respondent No.3; Mr. T.Srikanth Reddy, learned
Government Pleader for Revenue appearing for respondents
No.4 and 5; Mr. Ram Prasad Pattipaka, learned
Government Pleader for Social Welfare appearing for
respondent No.6; and Mr. M.Roopender, learned
Government Pleader for Home appearing for respondents
No.7 and 8.
2. This writ appeal is directed against the order dated
20.07.2022 passed by the learned Single Judge disposing
of W.P.No.29393 of 2022 filed by respondent No.1 as the
writ petitioner.
3. Respondent No.1 had filed the related writ petition
alleging inaction by the authorities of Palwancha
Municipality in taking any action against the appellants,
who were arrayed as respondents No.8 to 25 in the writ
petition. It was alleged that appellants had encroached
upon the assigned land of respondent No.1 admeasuring
Acs.3.00 in Survey No.444/1/31 situated at KCR Nagar
Colony, Palwancha Village and Mandal, Bhadradri
Kothagudem District (subject property). Respondent No.1
further sought for a direction to the authorities of
Palwancha Municipality to demolish the unauthorised
construction made by the appellants over the subject
property.
4. Before the learned Single Judge it was contended by
respondent No.1 that appellants were going ahead with the
construction which he termed as "unauthorised" over the
subject property in spite of status quo order passed by this
Court in W.P.No.33019 of 2010 on 29.12.2010 and also in
violation of the interim injunction order as well as police
protection order passed in O.S.No.67 of 2020. Learned
counsel for respondent No.1 submitted that respondent
No.1 had filed a representation on 08.10.2020 before the
Palwancha Municipality but there was no response.
Therefore, respondent No.1 was compelled to file the writ
petition.
4.1. Learned Standing Counsel for Palwancha
Municipality submitted that appellants were making
constructions in the subject property and that appropriate
action would be taken.
4.2. Thereafter, by the order dated 20.07.2022, learned
Single Judge disposed of the writ petition in the following
manner:
"4. Recording the said submission of the learned
standing counsel, this writ petition is disposed of
directing the respondents to take appropriate action on
the illegal constructions in land admeasuring
Ac.3.00Gts in Sy.No.444/1/31 situated at KCR Nagar
Colony, Palwancha Village and Mandal, Bhadradri
Kothagudem District in accordance with law, within a
period of six (6) weeks from the date of receipt of copy of
the order. There shall be no order as to costs."
5. Thus, we find that learned Single Judge had noted
the submission of learned Standing Counsel and thereafter
directed the respondents (Palwancha Municipality) to take
appropriate action against the "illegal construction" on the
subject property in accordance with law and within a
period of six weeks.
6. From a perusal of the aforesaid order dated
20.07.2022, we do not find that notice was issued to the
appellants (respondents No.8 to 25 in the writ petition).
The order does not disclose that despite notice, appellants
did not come forward to contest the proceeding. In the
absence thereof, it was not proper for the learned Single
Judge to have directed the authorities of Palwancha
Municipality to take appropriate action against the "illegal
construction". To declare a construction as illegal, there
must be sufficient materials on record and there must be a
clear finding based on such materials that construction
was carried out in violation of law. In the absence thereof,
it would not be proper to term any construction as "illegal
construction".
7. Be that as it may, learned counsel for the appellants
has drawn our attention to page No.44 of the appeal papers
and submits therefrom that by order dated 18.03.2021, the
Court of Special Assistant Agent and Sub Divisional
Magistrate, Mobile Court at Bhadrachalam, had dismissed
I.A.No.64 of 2020 filed by respondent No.1/writ petitioner
in O.S.No.67 of 2020 by holding that the defendants
therein are in possession of the subject property which has
been proved by the materials on record. They are entitled
to continue in possession. Therefore, temporary injunction
order passed earlier and also police protection order
granted earlier were all recalled.
8. Insofar order of this Court dated 29.12.2010 is
concerned, we find from page No.30 of the appeal papers
that in the aforesaid status quo order no survey numbers
were mentioned by the Court. Direction was granted to the
revenue authorities of Palwancha, Khammam District. We
find therefrom that appellants are not parties to the said
proceeding.
9. All these things are required to be considered before
any direction is issued to the municipal authorities for
demolition of any construction.
10. That being the position, we set aside the order of the
learned Single Judge dated 20.07.2022 and remand the
matter back to the learned Single Judge having roster for
hearing afresh.
11. Appellants being respondents No.8 to 25 in the writ
petition shall file counter affidavit in the writ petition
within four weeks from today.
12. Writ appeal is accordingly allowed.
Miscellaneous applications pending, if any, shall
stand closed. However, there shall be no order as to costs.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
C.V.BHASKAR REDDY, J
09.11.2022
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