IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.14319 of 2001 Between: Kanugu Shankar S/o.Late Bhoomaiah R/o.Brahmin Street, Medak. ..... PETITIONER AND The Muncipal Council, through its Commissioner Medak. .....RESPONDENT 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 to issue a Writ of Mandamus or any other appropriate writ or writs Order or Direction, declaring and setting aside the order dt.5-7-2001 in Proc.No.C1/259/2001 on the file of the Respondent herein as illegal, arbitrary and without jurisdiction; Award costs and pass Counsel for the Petitioner:MR.K.RAGHUVEER REDDY Counsel for the Respondent No.: MR.RADHA KRISHNA POLISETTY (SC FOR MPL) The Court made the following: Form-NIC-OGS/WP{KMR} THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.14319 of 2001 O R D E R: The petitioner questions the proceedings of the Commissioner, Municipal Council, Medak, dated 05.07.2001 in proceedings No.C1/259/2001. The respondent by the aforesaid proceedings, cancelled the mutation proceedings earlier granted in Proceedings No.B2/2113/2000, dated 12.12.2000 and the building permission granted in proceedings No.C1/259/2001, dated 03.03.2001 and revoked the same, directing the petitioner to remove the structures made on the land pursuant to the permission granted earlier in proceedings dated 03.03.2001. It is the case of the petitioner that his father Bhoomaiah purchased an extent of 30 guntas of land in Sy.No.84 (Perade) situated in Medak town in the year 1951 through registered sale deed dated 24.01.1951. A perusal of the sale deed goes to show that the land admeasuring 30 guntas with land revenue assessment of Rs.7/- along with two Wells with Mote situated inside the locality of Brahmingalli village, Medak taluq, bounded by East-Patel Kunta, West-House of Shankaraiah, North- Public thoroughfare, South-Public thoroughfare, was purchased by the father of the petitioner. It is stated that the land was far away from Medak town and with a view to develop the said land, permission was obtained for construction of compound wall in 1953 for the entire area and thereafter in 1961 permission was obtained for construction of cattle shed and compound wall around the Wells. The said property was also assessed to tax by the Municipality in the year 1970. In the year 1972 permission was granted for construction of shops in a portion of the property and accordingly shops were constructed. In the year 1984 the compound wall in a part of the land was constructed after obtaining permission, and in 1986 shops were temporarily erected after obtaining necessary permission. It is stated that one of the shop was a tea stall and some others are small sanitary shops. The said temporary sheds have been removed and again constructed four shops and a residential portion in the backside on the total extent of 393 sq.metres. It is stated that permission was granted for the said construction vide proceedings dated 03.03.2001. It is stated that after construction of the four shops and residential portion, some councilors made a complaint to the Regional Director of Municipal Administration alleging that the petitioner made constructions on the land of the municipality. Basing on the said oral complaint, a notice dated 23.05.2001 has been issued, alleging that the petitioner encroached the land which was allotted by Nagar Panchayat, Medak for the construction of shopping complex and parking place under the approved IDSMT scheme and the Director of Town and Country Planning, Andhra Pradesh, Hyderabad vide B.P.No.17/83 in Roc.No.7584/81-F4 approved the same and therefore, the petitioner was called upon to submit explanation as to why the permission accorded to the petitioner vide proceedings dated 27.02.2001 granting permission to construct shops shall not be cancelled. It is stated that the petitioner filed a detailed explanation dated 29.05.2001 stating that the aforesaid open space of 393.34 sq.metres bearing Municipal No.1-7- 84/1/B at Brahmin street, Medak is the absolute property of his father Bhoomaiah and after death of his father Bhoomaiah, the said property has fallen to his share in the partition among the two brothers namely himself and his brother Kanugu Laxminarayana. It is stated that in fact the municipality periodically accorded permissions for construction of the compound wall, shops, sheds etc. and the shops in question in the said land were constructed after obtaining the necessary permission dated 27.02.2001. It is further stated that earlier the Ex-Chairman, K.Ramkishan Rao due to some animosity made similar allegations about the alleged encroachment over the land by the petitioner and on the said complaint, the earlier Municipal Commissioner issued notice dated 19.09.1987 and after submitting explanation, thorough enquiry has been conducted and the municipal council finally concluded that the land in question belongs to the petitioner. Dissatisfying with the action of the Municipal Council, the said Ex-Chairman also went to file a land grabbing case in LGP.1/90 before the District Court, Medak at Sangareddy in which the municipal council was also a party Respondent No.12 and the Land Grabbing Court dismissed the said LGP.1/90 which was also confirmed in an appeal filed by the complainant/Ex-Chairman in LGA.2/98 before the Special Court under A.P.Land Grabbing (Prohibition) Act. It is further stated that even according to the show cause notice, there is a dispute with regard to the ownership of the land in question between petitioner and Nagar Panchayat as no boundaries are fixed in between the land of the Nagar Panchayat and the private lands. If that be so, it is stated that the boundary dispute cannot be decided by the municipality itself and it has to be resolved in a properly constituted civil suit alone. Accordingly, it was requested not to cancel the permission granted earlier. It is stated that a further show cause notice dated 08.06.2001 was issued requesting the petitioner to produce the title deeds and earlier proceedings in support of his claim, and accordingly, the petitioner submitted all the required documents vide his explanation dated 14.06.2001 such as the registered sale deed dated 24.01.1951 and permissions granted in the year 1961 and 1984. The show cause notice is issued only for cancellation of grant of earlier permission in proceedings No.C1/259/2001 dated 27.02.2001. But in the final cancellation orders dated 05.07.2001, it is stated that the date of proceedings as 03.03.2001 is obviously incorrect instead of stating as 27.02.2001. The respondent not only cancelled the earlier permission dated 27.02.2001, but also cancelled the mutation proceedings dated 12.12.2000 for which no show cause notice has been issued. A counter has been filed stating that the respondent has no knowledge about the title of the property, but admitted with regard to grant of earlier permissions for construction of the compound wall in 1953, cattle shed in 1961, shops in 1972, compound wall around the Wells and others in 1984 and for construction of the shops in 1986 in the said land. It is further accepted that on an application made by the petitioner for grant of permission of the shops in 2001 by removing the existing temporary sheds, it is stated that permission was accorded vide proceedings No.C1/259/01, dated 27.02.2001. But it is stated that at the time of granting of permission, thorough enquiry was not properly done and as there was a mistake in granting permission, the show cause notice dated 23.05.2001 has been issued. It is further stated that from the enquiry made by the respondent’s office, it appears that the land in question was allotted for parking place. It is stated that the explanation submitted by the petitioner enclosing the sale deed and earlier proceedings issued by the respondent do not show the clear boundary of the site and as such it was concluded that the permission was obtained without any title and hence the impugned order has been issued, canceling the earlier permission under Sec.344 (6) of A.P. Municipalities Act. With regard to filing of the land grabbing O.P.1/90 by the Ex-chairman namely M.Ramkishan Rao, which was dismissed and the same was also confirmed in the appeal, it is stated that the respondent has no knowledge. Otherwise, it is stated that the dispute was in between the private parties. It is further admitted that the Municipal Council earlier passed unanimous resolution dated 30.10.87 holding that the petitioner and his brother are absolute owners of the disputed site on the complaint made by the Ex-Chairman and in view of the said resolution, further proceedings were dropped, against which an appeal alleged to have been filed before the Collector, who in turn suspended the resolution and against which the petitioner filed a revision before the Government and the Government suspended the order of the Collector and thus it was admitted that the earlier resolution dated 30.10.1987 passed by the Municipal Council holding that the land belongs to the petitioner and his brother was subsisting. If that be so, I am of the opinion that there cannot be any justification on the part of the respondent in issuing a show cause notice for cancellation of the permission granted earlier on 27.02.2001 on the ground that there was no demarcation of boundary between the land of the petitioner and Nagar Panchayat. If there is a boundary dispute, it is for the aggrieved party to get the said boundary dispute resolved in a properly constituted civil suit and further the boundary dispute is not at all be decided by any proceedings by the respondent. Even according to the respondent itself the boundaries have not been fixed between the Nagar Panchayat and private lands, and if that be so, the proceedings initiated is not with regard to the settlement of the boundary dispute. But the show cause notice issued by the respondent is for cancellation of the building permission earlier accorded on 27.02.2001. I am of the opinion that there was no mistake committed by the Municipal Council in according sanction for construction of shops dated 27.02.2001 or in granting the mutation proceedings on 03.03.2001. Without there being any notice for cancellation of the mutation proceedings, the question of canceling of mutation proceedings by the impugned order does not arise. Even according to the counter, I am of the opinion that the earlier periodical sanctions and resolution of the Municipal Council holding that the property belongs to the petitioner and his brother are not in dispute, and if that be so, there cannot be any justification on the part of the respondent in issuing the show cause notice and passing the impugned order. For the foregoing observations, the Writ Petition is liable to be allowed, and accordingly, allowed with costs. ___________________ V.ESWARAIAH,J Dated: 08.08.2008 Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Muncipal Council, through its Commissioner Medak. 2.2CCs to 3.2CD copies