IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17930 of 2008 Between: 1 Nalluri Rambabu S/o. Rattaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 2 V. Hanumantha Rao S/o. Seshaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 3 Ch. Srinivasa Rao S/o. Seshaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 4 Ravinuthala Satyanarayana S/o. Kannaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 5 Madala Somulu S/o. Chalamaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 6 Bellamkonda Ranga Rao S/o. Musalaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 7 Jarugula Haribabu S/o. Brahmaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 8 Makkena Sriramulu S/o. Chenchaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 9 Jarugula Subba Rao S/o. Kanthaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 10 Kantamraju Venkata Rathnaiah S/o. Subbaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 11 Inkollu Lakshmi Prasada Rao S/o. Venkatappaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 12 Bellamkonda Baleswara Rao S/o. Gurunadham R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 13 Kantamraju Kotaiah S/o. Subbaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 14 Bellamkonda Pardhasarathi S/o. Kanakaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 15 Bellamkonda Srinivas Rao S/o. Panduranga Rao R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 16 Narayana Srinivasacharyulu S/o. Pedahanuma Charyulu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 17 Madala Mahalaxmamma W/o. Chalamaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 18 Nalluri Raghavamma W/o. Subba Rao R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 19 Thagirisa Samrjyam W/o. Sriramulu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 20 Narayanam Ranganayakamma W/o. Peddahanumacharyulu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 21 Vasantha Suresh S/o. Seshaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 22 Makkenna Raghavaiah S/o. Chenchaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 23 Muppala Nagabhushanam S/o. Venkaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 24 Veruva Srinivasa Rao S/o. Venkateswarlu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 25 Veruva Govindamma W/o. Venkateswarlu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 26 Vasantha Venkateswarlu S/o. Venkata Subbaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 27 Nalluri Maruthi Rao S/o. Chenchaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 28 Duddukuru Prabhavathi W/o. Rangaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 29 Chigurupati Venkata Rao S/o. Tirupathi Naidu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 30 Thota Venkateswaramma W/o. Venkata Rao R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 31 Kancharlapalli Rathaiah S/o. Bala Kotaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 32 Kancharlapalli Singaiah S/o. Kesavulu R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 33 Kancharlapalli Vekata Rao S/o. Singaiah R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. 34 Manukonda Raghupathi W/o. Hanumantha Rao R/o. Duddukuru Village, Inkollu Mandal, Prakasam District. ..... PETITIONERS AND 1 The State of Andhra Pradesh, rep. by Prl. Secretary, (R&B) Secretariat, Hyderabad. 2 The Engineer-in-Chief (R&B), Roads, Erramanzil Colony, Hyderabad. 3 The Superintendent Engineer R&B, Ongole. 4 The District Collector, Prakasam, Prakasam District, Ongole. 5 The Revenue Divisional Officer, Ongole. 6 The Tahsildar, Inkollu Mandal, Inkollu, Prakasam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in giving marking of 25 feet on either side of the road from center point of road of Duddukuru Village, Inkollu Mandal, Prakasam District as illegal, perverse and nonest in law, arbitrary and untenable and consequently direct the respondents to withdraw the markings in the interest of justice and equity and pass Counsel for the Petitioners:SRI SUDHAKARA RAO AMBATI Counsel for the Respondents: GP FOR ROADS & BUILDINGS The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17930 of 2008 ORDER: The petitioners who are 34 in number are residents of Duddukuru Village, Inkollu Mandal, Prakasam District. They filed the instant writ petition seeking a writ of mandamus declaring the action of respondents in giving marking of 25 feet on either side of the road from centre point of road of Duddukuru Village, Inkollu Mandal, Prakasam District as illegal and arbitrary. They also seek a consequential direction to respondents to withdraw the markings in the interest of justice. At the outset, it must be pointed out that the writ petition with a prayer like that would not lie. In connection with any development activity if the Officials require conducting survey and giving markings for taking further necessary action, that itself would not give cause of action in public law. However, having regard to the separate counter affidavits filed by respondent Nos.3 and 6 as well as by the impleaded seventh respondent, the writ petition is taken up for hearing at the interlocutory stage and is being disposed of by this order. Naguluppalapadu road in Duddukuru Village is Roads and Buildings (R&B) Road. It appears, it is a busy road often resulting in bottlenecks with free flow of traffic. Due to the fact that it is not provided with CC payment and also the fact that there are some encroachments on either side of the road, as per the official respondents it has a width of 18 feet. Petitioners allege that their predecessors have been in possession of the houses abutting the road on either side for more than hundred years and there is a Temple and also houses of Pujaries situated on the northern side of the road. When the proposal to provide CC payment was mooted, second respondent accorded administrative sanction vide Memo No.15063/SRP 2006-07 Ongole TA 3 AEEI, dated 07.09.2006, for providing CC payment on Inkollu – Naguluppalapadu road Km 9/2 to 9/6 for an estimated cost of Rs.22.50 lakhs under S.R.P 2006-2007. The petitioners allege that there are no encroachments on the road. However, pursuant to a communication of fifth respondent, sixth respondent conducted survey and allegedly sent a report dated 23.11.2007 to the effect that there are no particulars of R&B road in FMB book of Duddukuru Village. In the meanwhile, the local Member of Legislative Assembly addressed a letter to the third respondent requesting to provide CC payment to the existing road and lay bypass road for free flow of vehicles. A survey was also conducted for construction of a new bypass road. In spite of the same, it is alleged that respondent Nos.3, 5 and 6 conducted survey and markings up to 25 feet. The villagers allegedly gave a representation on 05.02.2008, which was forwarded by third respondent to sixth respondent. Petitioners allege that respondents are proclaiming that they would demolish the structures of the petitioners and hence they filed the instant writ petition. This Court while admitting the writ petition directed to maintain status quo. Therefore, sixth respondent has moved this Court by filing W.V.M.P.No.2829 of 2008 for vacating the interim order. The Sarpanch of Duddukuru Gram Panchayat also filed application to implead in the matter and moved W.V.M.P.No.3009 of 2008 for vacating the orders of status quo. The Sarpanch in her counter affidavit stated as follows. The writ petition is filed to stall the provision of CC payment to the existing road known as ‘Old Madras Road’ connecting Guntur District with Ongole. It is Gram Panchayat road and as per FMB records maintained by Survey and Land Records Department, it passes through survey No.434 and classified as poramboke. Thus, under Section 53 read with Section 56 of the Andhra Pradesh Panchayat Raj Act, 1994 (the Act, for brevity), road vests in the Gram Panchayat. As there is traffic congestion, the Gram Panchayat passed a resolution to remove the encroachments on the road and requested R&B Department to take up road widening work. Considering the representation of the petitioners dated 05.02.2008 to lay cement road with 18 feet width, third respondent directed sixth respondent to examine the representation and take necessary action for removal of encroachments. On 05.05.2008, in the Village meeting it was resolved by the villagers that the existing road as per FMB is 50 feet and it is narrowed down by encroachments to less than 12 feet in some places, and it requires to be widened at least by 35 feet. First petitioner gave a representation on 27.05.2008 to fourth respondent requesting to lay the road, as there is severe traffic congestion. However, having regard to the representation of the villagers made on 05.02.2008 fourth respondent on 22.05.2008 directed third and fifth respondents to take up road widening activity up to 35 feet. Third respondent vide memo dated 21.05.2008 also directed the Executive Engineer, R&B, to take necessary steps for removal of encroachments. At that juncture, the present writ petition is filed. Third respondent in a separate counter affidavit while tracing the steps that led to grant of administrative sanction by second respondent stated that a tender notice on e-platform was issued on 08.06.2007, but due to administrative reasons, it was cancelled. Third respondent also addressed a letter to fifth respondent to fix the road boundaries in Duddukuru Village as per FMB. As the villagers requested for widening the road to an extent of 35 feet, on 03.08.2008 fifth respondent conducted joint survey and fixed the boundaries to the extent of 35 feet with drains. At that stage, the writ petition is filed. All major roads in the State of Andhra Pradesh are 30 metres, and the entire road from Guntur – Ongole passing through Duddukuru Village is also 30 metres and only in the Village limits the road is narrow to an extent of 18 feet. There are encroachments on R&B road and respondents have not yet initiated road widening to the extent of R&B boundaries. Widening work up to 35 feet is taken up as requested by the villagers. The Sarpanch of the Village gave a representation to the Hon’ble Minister on 19.05.2006 for widening. The petitioners are not ready to give consent for widening the road, and therefore, the road widening cannot be taken up wherever encroachments are there, unless due process of law is followed. Counter affidavit filed by sixth respondent also is to the effect that to the extent of 35 feet marking has been made and that there are encroachments by way of construction of houses on either side of the road. It is proposed to remove the encroachments, and accordingly, fifth respondent sent a letter on 16.08.2007 to sixth respondent to identify road margin encroachments for removal, so as to form a road by R&B by widening the road at least 40 feet wide from the center of the existing road and 60 feet wide at corners. The Tahsildar has not marked road margins, and it is R&B authorities, who marked the road for widening. This Court heard learned Counsel for the petitioners, learned Assistant Government Pleader for the Departments of R&B and Revenue (General) as well as the learned Counsel for Sarpanch – seventh respondent. Though there is a suggestion made to the effect that if the bypass road is taken up, there would not be necessity for widening the Guntur – Ongole road passing through the Village, this is not a matter, which is within the writ jurisdiction of this Court. It is for the Executive to decide these questions as to which method of providing access would be more convenient to the people of the Village. There is also dispute with regard to the street map of Duddukuru Village; R&B says, the road as per FMB is 35 feet and requires widening up to 60 feet, whereas Revenue says, there is no FMB available in respect of survey No.434, through which the road passes. The Officials of R&B as well as Revenue agree that even on the existing 18 feet road, there are encroachments by the petitioners and others. If there are really encroachments, it cannot be permitted in law. It is well settled that a road is meant for people to pass and repass, and cannot be occupied. Even under the Act, there are provisions prohibiting construction of structures on the road margins by encroachers. There are also provisions in the same Act, which empower the Gram Panchayat to remove encroachments and projections (Section 98 of the Act). Insofar as roads are concerned, Section 53 of the Act is relevant, and reads as under. 53. Vesting of public roads in gram panchayats:- (1) All public roads in any village, other than National Highways, State Highways and roads vesting in Zilla Parishad or Mandal Parishad shall vest in the gram Panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefor, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the gram Panchayat fund or otherwise, in along side or under such roads, and all works, materials and things appertaining thereto; Provided that the gram Panchayat shall take steps to remove encroachments on, and prevent, un-authorised use of, any road other than a National Highway passing through the gram Panchayat. (2) The Government may, after giving an opportunity to the gram Panchayat of making a representation by notification, exclude from the operation of this Act any such public road, sewer, drain, drainage work tunnel or culvert, and may also modify or cancel such notification. All the roads in the Village other than National Highways, State Highways and roads vesting in Zilla Parishad or Mandal Parishad shall vest in the Gram Panchayat. As per proviso to subsection (1) of Section 53 of the Act, unless it is a National Highway, even if it is a public road, whether it is State Highway or Zilla Parishad Highway, Gram Panchayat can remove encroachments by taking necessary steps. Therefore, if there are encroachments, it is futile for anybody to contend that when the road is R&B road, Gram Panchayat cannot take any action. A reading of the counter affidavit filed by the Sarpanch of the Village would show that the road in survey No.434 of Duddukuru Village is a panchayat road. This question, however, is not a contentious issue. Whether the road in question is a Gram Panchayat road or R&B road, the Chief Engineer has accorded administrative sanction for widening and providing CC payment. If there are encroachments, it is for Gram Panchayat to remove those encroachments, and while doing so, they have to necessarily issue notices to the encroachers and afford reasonable opportunity of submitting explanation, and then take a decision. As observed from the beginning of the order, even before the actual work is taken up, petitioners rushed to this Court. In the counter affidavit filed by third respondent, a categorical averment is made that after conducting survey, makings are given up to 35 feet for the purpose of widening and even before necessary steps are taken to remove encroachments by following due process of law, petitioners rushed to this Court. Now that respondents admit that necessary steps for removing encroachments have not been taken up and survey has been conducted, it would be better for concerned Executive Engineer, R&B, as well as Tahsildar, Inkollu Mandal, to send a list of houses of the villagers, which are constructed encroaching the road, to the Gram Panchayat – Duddukuru. As and when the same is communicated, the Gram Panchayat may issue notices and remove encroachments under Section 53(1) read with Section 98 of the Act. Pending such action by the Gram Panchayat, however, it shall not preclude R&B Department to proceed with the widening and providing CC payment on the road where there are no encroachments and the road is free from encroachments and encumbrances. The Writ Petition, with the above observations and directions, is disposed of accordingly. No costs. _____________ (V.V.S.RAO, J) 17.12.2008 vs To 1 The Prl.Secretary (R&B), State of Andhra Pradesh, Secretariat, Hyderabad. 2 The Engineer-in-Chief (R&B), Roads, Erramanzil Colony, Hyderabad. 3 The Superintendent Engineer R&B, Ongole. 4 The District Collector, Prakasam, Prakasam District, Ongole. 5 The Revenue Divisional Officer, Ongole. 6 The Tahsildar, Inkollu Mandal, Inkollu, Prakasam District. 7 2CCs to G.P For Roads and Buildings, High Court of A.P., Hyderabad. 8 2CD copies Form-NIC-OGS/WP{MSN}