IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 10041 of 2007 Between: T. Mallanna S/o.Late Sidhappa, Hindu R/o. 4-5-63/2, Ramamandir Streat, Sadhasivapet, Medak District. ..... PETITIONER AND 1 Sadhasivapet Municipality Rep. by its Commissioner, Sadhasivapet, Medak District. 2 Sadhasivapet Mandal Revenue office, Rep. by its Mandal Revenue Officer, Sadhasivapet, Medak 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 may be pleased to issue a writ, order direction more particularly a writ in the nature of Mandamus U/A Art. 226 of Constitution of India, declaring the action of the 1st Respondent though the petitioner leaving the 70 feet from the N.H.9 which is more than the mentioned in the master plan, the 1st Respondent issuing the impugned notice Lr.No. G1/327/2005 dt. 5-4-2007 by rejecting our explanation and also stating our construction is not in accordance with the sanctioned plan and granting three (3) days time not to make any further construction of encroached kandakam land as illegal, improper and arbitrary consequently by setting aside an impugned notice Lr.No. G1/327/05 dt. 5-4-2007 and declared as illegal and pass such other order or orders as may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: SMT.A.PADMA Counsel for the Respondent No.1: MR.POLISETTI RADHAKRISHNA, STANDING COUNSEL. Counsel for the Respondent No.2: GOVT. PLEADER FOR REVENUE The Court made the following : ORDER: The petitioner claims to be an absolute owner and possessor of the premises bearing No.2-7-13 (old) 2-7-14 (new) admeasuring 251.70 sq. mts. situated at Ramamandir Street, Sadhasivapeta Municipality, Medak District. He submitted building permission application to the Sadhasivapeta Municipality-1st respondent on 12.07.2005. He also paid an amount of Rs.6,605/- towards security charges etc. The 1st respondent Municipality issued a receipt acknowledging the payment of Rs.6,605/-. According to the petitioner, the 1st respondent Municipality kept his application pending without passing any orders thereon. Therefore, he approached this Court by ﬁling W.P.No.25830 of 2006. The said writ petition came to be disposed of at the admission stage on 22.12.2006 directing the 1st respondent Municipality to consider his building permission application dated 12.07.2005 and pass appropriate orders within a period of four weeks from the date of receipt of the copy of the order. The 1st respondent Municipality issued proceedings No.G1/372/2004, dt.14.07.2005 granting permission for construction of house to the extent of part of the plan while refusing the permission in respect of the area covered by Kandakam land. The 1st respondent Municipality issued notice to the petitioner vide letter No.G/4/2007, dated 23.03.2007 under Sections 360 and 361 of the A.P. Municipalities Act, 1965 (for short, ‘the Act’), whereunder he has been asked to remove the encroachments made on Kandakam land to an extent of 22’.00” x 50’.00” within three days. Thereupon, he ﬁled W.P.No.6365 of 2007. The said writ petition came to he disposed of on 30.03.2007 directing him to submit explanation. Accordingly, the petitioner submitted explanation on 02.04.2007. His explanation came to be rejected on 05.04.2007. For better understanding of the grievance of the petitioner, I deem it appropriate to refer paras. 4 to 6 of the writ affidavit and they are thus: “4. It is respectfully submitted that, though the Hon’ble Court gave a speciﬁc direction but the 1st respondent herein did not take any steps for disposing of the application. As per Secs.212 & 213 of A.P. Municipalities Act, if the permission is not granted within a period of 60 days the Commissioner neither given nor refused its approval of a building site or its permission to execute any work, as the case may be, such approval or permission shall be deemed to have given and the applicant may proceed to execute the work. Accordingly, the petitioner has waited for a period of 18 months. Though the petitioner made several eﬀorts, but the Commissioner is not taking steps for disposing of the application granting permission. In the said situation he has no other alternate and commenced the construction work. While the matter stood thus, the 1st respondent herein by issuing a notice to the petitioner vide No.Lr.No.G/4/2007, Dt.23.03.2007 under Sec.360 & 361 of A.P.Municipalities Act stating that, it has been brought to the notice of under signed that you have encroached the Kandakam land (Government land) to an extent of 22’00 x 50’00 by way of construction raising of the RCC Pillar by causing inconvenience to traﬃc and also public therefore directed the petitioner to remove the encroachments within a period of 3 days failing which the same will be got removed departmentally. Immediately after receipt of the said notice, the petitioner approached this Hon’ble Court by ﬁling a W.p.no.6365/2007 stating that, the petitioner’s construction building premises is situated N.H.road 9. As per the master plan of Sadhasivapet Municipality, and the Mandal Revenue Oﬃcer, Sadhasivpet, Dt.08.01.2007 issued a report and also as per Mandal Surveyor, Sadhasivpet Report, Dt.24.11.2006, the Kandkakam land 65 feet from N.H.Road 9. Basing on the report of the 2nd respondent addressed a letter to the 1st respondent herein vide Lr.No.B/97/2007 Dt.22.01.2007 wherein he categorically stated that, the kandakam government land is situated within the distance of 65 from the middle of the road of N.H.9. Accordingly, the 1st respondent herein by relying upon on the said report and letter by granting permission in favour of Kovvuri Jayasree, w/o.Rama Goud, who are also resident of the same street and opposite lane. Though the petitioner has already left 70 feet of land from N.H.9 to the building. By showing discrimination, the 1st respondent herein by granting permission to one person and not granting permission to the petitioner as illegal, improper and arbitrary. In the said W.P.no.6365/2007 was disposed of by this Hon’ble Court at the admission stage Dt.30.03.2007 directing the 1st respondent to be treated as a show cause notice and the petitioner shall be ﬁled an explanation to the said show-cause notice within a period of 5 days on receipt of the representation/explanation within 5 days the respondent shall consider and dispose of the same in accordance with law. Meanwhile, they shall not demolish the construction/encroachment land. 5. It is respectfully submitted that, as per the Hon’ble Court direction the petitioner herein submitted an explanation on Dt.02.04.207 to the 1st respondent herein wherein he stated that as per the Mandal Surveyor report Dt.24.11.2006 and also 2nd respondent’s report, Dt.22.01.2007 the kandakam land is only 65 feet from national highway road 9. The petitioner has already left 75 feet from N.H.Road 9. therefore, he submitted a plan in accordance with law, he never encroached the government land, and demolition of the encroached land does not arise. Therefore, consider his explanation according to law. 6. It is respectfully submitted that, after receipt of the explanation the 1st respondent herein who has issued a impugned proceedings vide No.G1/327/2005, dt.05.04.2007 the said impugned proceedings was received by the petitioner on 30.04.2007 wherein contended that, the construction is under progress as against the sanctioned plan G./372/2005, dt.14.07.2005 and also encroaching the kandakam land, your request to consider the explanation is refused and directed the petitioner to stop all building construction activities and not to proceed the work failing which take action as per rules in force. In fact, the 1st respondent herein without disputing and clarifying the 2nd respondent’s report regarding kandakam land is 65 feet from N.H.9, the Mandal Surveyor’s report is also not disputing. By relying upon the granting of permission in favour of Kovvuri Jaya Sree resident of the same street and the same lane is also admitting by the 1st respondent. Therefore, by showing discrimination by leaving 65 feet as a kandakam land they are granting permission, where as the petitioner has let more than 65 feet in the as per their impugned proceeding the petitioner encroached only 50 feet only. As per the 2nd respondent’s report upto 65 feet is permissible. The 1st respondent directing the petitioner stopping further construction as illegal, improper and unjust. But by issuing impugned proceeding and stopping the further construction work without any valid reasons is nothing but an harassment. The petitioner who has invested huge amount by taking hand loans and paying huge interest. Having waited 18 months and constructed the work now. If the work is suddenly stopped the entire material of cement, iron etc are become useless. In the circumstances unless this Hon’ble Court interfere at this stage the petitioner will be put to irreparable loss.” 2. Rule Nisi came to be issued on 09.05.2007. An interim order of status quo came to be granted on 01.11.2007. 3. 1st respondent ﬁled counter-aﬃdavit and also moved WVMP No.3187 of 2007 with a prayer to vacate the interim order o f status quo dated 01.11.2007. D.Balaji, Commissioner, Sadasivapeta Municipality, has sworn to the counter-aﬃdavit. It is stated in the counter-aﬃdavit that the building permission application ﬁled by the petitioner was considered and permission was granted for an area, which he is lawfully entitled. The letter allegedly referred to in para.5 of the writ aﬃdavit has not been received from the Madnal Revenue Oﬃcer, Sadhashivpet. It is further stated in the counter- aﬃdavit that there is a Kandakam land of 65 feet width all around Sadasivapet old village abutting to 41.00 Mts. wide N.H.9 road as per the record of E.E., R& B, NH Division-1. The permission granted by the then Commissioner of 1st respondent Municipality to Smt.Kovuri Jaya Sri had been revoked under Proceeding No.G1/112/2004, dated 10.10.2006. The petitioner commenced the constructions in violation of the building rules and in deviation of the sanctioned plan. Therefore, a show- cause notice under Section 228(i) of the Act was issued and the same was conﬁrmed under Section 228(iii) of the Act. Against the said notice, the petitioner has an alternative remedy of appeal to the Municipal Council under Section 345 of the Act. It is further stated in the counter-aﬃdavit that the petitioner has proceeded with the construction under the guise of status quo order. 4. 2nd respondent filed counter-affidavit. L.Kishan, Tahsildar, Sadhasivapet, has sworn to the counter-aﬃdavit. It is stated in the counter-aﬃdavit that kandakam land is situated at a distance of 65 feet from the middle of the N.H.9 road and that the constructed building of the petitioner is situated just adjacent to the kandkam land and it is in the gramakantam land. 1st respondent Municipality is the competent authority to take further action in this regard. Para.4 of the counter-aﬃdavit needs to be noted and it is thus: “It is respectfully submitted that the 2nd respondent i.e., the Mandal Revenue Oﬃcer, Sadhasivaapet, has issued a letter No.B/97/2007, dt.22.1.2008 in reply to the 1st respondent’s Lr.No.B/112/2006, dt.8.10.2007 in regard to the construction of building by one Smt.Kovvuru Jayasree, W/o.Rama Goud and no letter or clariﬁcation is issued in regard to the disputed construction land of the petitioner. The clariﬁcation or the letter given to other person i.e., Smt.Kovvuru Jayasree, W/o.Rama Goud is no way concerned to the petitioner. The petitioner is misleading the facts and hence far from the truth and deserves no consideration. The stoppage/demolition of the construction work of the Writ Petitioner herein is concerned to the Respondent No1 i.e., Commissioner, Municipality, Sadhasivapet and as such no remarks can be oﬀered by the Respondent No.2 herein i.e, Tahsildar, Sadhasivapet.” 5. When the writ petition came up for hearing on 14.08.2008, learned counsel appearing for the petitioner contended that the 1st respondent Municipality served proceedings dated 14.07.2005 on the petitioner after disposal of W.P.No.25830 of 2006. Per contra, learned Standing Counsel appearing for the 1st respondent Municipality contended that the proceedings dated 14.07.2005 came to be served on the petitioner even before ﬁling W.P.No.25830 of 2006 by the petitioner. Thereupon, this Court directed the 1st respondent to place on record the proof of service of the proceedings dated 14.07.2005 on the petitioner. The Commissioner of 1st respondent Municipality placed on record his sworn aﬃdavit dated 17.08.2008 in W.P.No.5344 of 2007, wherein it is stated that proceedings 14.07.2005 along with sanctioned plan have been served on the petitioner. 6. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the 1st respondent Municipality and learned Government Pleader for Revenue appearing for the 2nd respondent. 7. Learned counsel appearing for the petitioner submits that the petitioner having waited for a statutory period on submission of the building permission application proceeded with the construction in accordance with the plan submitted by him and in which case issuance of proceedings by the 1st respondent Municipality after expiry of the statutory period cannot be sustained. In a way, learned counsel submits that the 1st respondent Municipality deemed to have approved the plan submitted by the petitioner along with building permission application and any action initiated by the 1st respondent Municipality to meddle with the constructions is impermissible and contrary to the provisions of the Act and the Rules framed thereunder. Learned counsel took me to the letter No.B/97/2007, dated 22.01.2007, of the Mandal Revenue Officer, Sadashivpet, addressed to the Municipal Commissioner, Sadashivpet. This letter relates to the building permission application of one Smt.Kovvuri Jayasree. It is stated in the letter that the premises bearing H.No.3-3-66/1 owned by Smt.Kovvuri Jayasree is situated at a distance of 75 feet from the middle of the N.H.9 road. 8. Learned Standing Counsel appearing for the 1st respondent Municipality submits that the petitioner being fully aware of the sanction of building permission to an extent of part of the plan, approached this Court by ﬁling W.P.No.25830 of 2006 and obtained orders as if his building permission application remained unattended. The learned Standing Counsel placed on record the original ﬁle relating to the building permission application of the petitioner maintained by the 1st respondent Municipality for perusal. Learned Standing Counsel also submits that the building permission sanctioned in favour of Smt.Kovvuri Jayasree came to be revoked and therefore, the petitioner cannot be permitted to lay much emphasis on the proceedings issued in favour of Smt.Kovvuri Jayasree. He would also contend that the letter dated 22.01.2007 of the MRO, Sadashivpet, copy of which has been ﬁled along with the writ petition, is a fabricated one. 9. I have perused the original ﬁle maintained by the 1st respondent Municipality, which is placed before me. The petitioner submitted application on 21.05.2005. He enclosed plan to the building permission application proposing the constructions over a plinth area of 83.9 sq. mtrs. The Commissioner of the 1st respondent Municipality assessed the amount payable by the petitioner under various heads. The total built up area is calculated at 168. sq. mtrs. Permission came to be granted to the petitioner to the extent other than the area covered by Kandakam land. There is a serious dispute with regard to the service of the proceedings on the petitioner. The 1st respondent asserts that the proceedings dated 14.07.2005 came to be served on the petitioner even prior to his ﬁling W.P.No.25830 of 2006. Whereas, the petitioner submits that the proceedings dated 14.07.2005 were not served on him by the date of ﬁling of W.P.No.25830 of 2006. Even the original ﬁle placed before me does not indicate the date on which proceedings dated 14.07.2005 were served on the petitioner. Without deliberating further on the points urged by the respective counsel, I take it that the proceedings dated 14.07.2005 came to be served on the petitioner after ﬁling of W.P.No.25830 of 2006. Under the proceedings dated 14.07.2005, permission came to be granted to the petitioner to put up constructions only for a part of the plan while rejecting the permission in respect of the area covered by kandakam land. The ﬁle maintained by the 1st respondent discloses that the petitioner claims the house site under a gift deed executed by his mother T.Sivamma, who is the petitioner in W.P.No.5344 of 2007. Whereas, in the aﬃdavit ﬁled by the petitioner it is stated that the petitioner got the property in partition among the brothers. It can be said without any fear of contradiction the writ aﬃdavit averments with regard to title over property and the document placed before the 1st respondent Municipality do not go together. The reason for rejection, apparently, is that the proposed constructions are coming within the area of Kandakam. Whether there is a Kandakam around the Sadashivpet and what is the extent owned by the mother of the petitioner and as to how his mother got the property are the disputed facts, which cannot be adjudicated in the writ petition. Under Section 345 of the Act, an appeal against the order of rejection of permission lies to the Municipal Council. 10. In that view of the matter, the writ petition is disposed of directing the petitioner to ﬁle an appeal before the Municipal Council of the 1st respondent Municipality within four weeks from today or to approach the competent Civil Court for establishing his right over the site admeasuring 201.23 sq. mtrs. There shall be status quo existing as on this day for a period of six weeks to enable the petitioner to avail the remedies as indicated above. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:22nd September, 2008. Note: Issue C.C. in three days B/O cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VSMI}