IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 18085 of 2007 Between: Balaji Gardens layout Welfare Association, rep by its Secretary, D. Vishwanatha Raju S/o Sathyanarayana Raju R/o Visakhapatnam. ..... PETITIONER AND 1 The Greater Visakhapatnam Municipal Corportion repby Commissioner, Visakhapatnam 2 The Vice Chairman, Visakhapatnam Urban Development Authority, siripuram, Visakhapatnam. 3 The Sree Mithra Township (pvt.) ltd., rep by Managing Director, M.V. Chowdary, R/o 47-10-25/1, Sai Trade Centre, 2nd Floor, Dwaraknagar, Visakhapatnam-16 .....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 or Direction, particularly a Writ in the nature of Mandamus, declaring the inaction on the part of the respondents 1 and 2 herein in taking appropriate steps in getting illegal, unauthorized constructions that are being made by the 3rd respondent herein, removed, as illegal and unauthorized and further direct the 1st respondent herein to enquire into the complaint made in the representations dt 28-6-2007, 18-7-2007 respectively by petitioner association to 1st respondent herein to remove the said illegal and unauthorized constructions and take appropriate steps to get the illegal and unauthorized constructions and take appropriate steps to get the illegal and unauthorized constructions made by the 3rd respondent herein removed and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.K.V.SUBRAHMANYA NARUSU Counsel for the Respondent Nos.1&2: MR.N.RANGA REDDY (SC FOR MPL. CORP. VSP) The Court made the following : THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.18085 of 2007 ORDER This writ petition has been ﬁled by Balaji Gardens Layout Welfare Association rep. by its Secretary D.Vishwanatha Raju assailing the inaction of the Greater Visakhapatnam Municipal Corporation, Visakhapatnam-1st respondent and Visakhapatnam Urban Development Authority-2nd respondent in removing the illegal constructions made by Sree Mithra Townships (Pvt.) Limited-3rd respondent. 2. D.Vishwanatha Raju, Secretary of Balaji Gardens Layout Welfare Association, Visakhapatnam, has sworn to the aﬃdavit ﬁled in support of the writ petition. The writ aﬃdavit averments, in brief, are: The petitioner-Association is registered under the provisions of the Societies Registration Act. The members of the petitioner-Association comprise Senior Scientists and Oﬃcers of Naval Science and Technological Laboratories, Ministry of Defence, Government of India. The NSTL Co-operative House Building Society Ltd, purchased an extent of Ac.3.77 cents situated in Sy.No.124/P of Vepagunta Village, Pendurthi Mandal, Visakhapatnam District, in the auction conducted by the Executive Oﬃcer, Simhachalam Devasthanam. The petitioner Association obtained approved lay out bearing No.44/88 from VUDA-2nd respondent. The approved lay out comprises 37 plots. After allotment of plots, the members of the petitioner-Association constructed houses on the said plots. The allottees who constructed houses, formed an Association called as Balaji Gardens Layout Welfare Association. On the southern side of the entire lay out, there exists a 40 feet road and beyond the 40 feet road, there exists the property covered by Sy.No.123/1, 2 and 124/P belonging to the 3rd parties, who prepared a lay out without approval of the VUDA-2nd respondent and sold the plots in the said unauthorized lay out to various persons. As per the approved lay out of the petitioner-Association, there exists 100 feet width road leading from Gopalapatnam to Simhachalam on the eastern side. From the said 100 feet wide main road, there is a proposal of 40 feet width road. The house building society left 24 feet and the balance 16 feet is to be left on the southern side by the neighbouring owners as per the VUDA-2nd respondent approved plan. When the neighbouring owners of the southern side of the petitioner-Association lay out were selling plots, the petitioner Association complained to the authorities of VUDA-2nd respondent. The neighbouring owners removed the survey stones placed on the southern side of the Balaji Gardens lay out. The petitioner-Association sent a letter dated 30.03.2007 to the Assistant City Planner of GVMC-1st respondent complaining the encroachments on the proposed 40 feet road. Sree Mithra Townships (Pvt.) Limited-3 rd respondent started encroaching upon the proposed 40 feet road by digging bore- wells for the purpose of construction. The members of the petitioner-Association questioned the action of Sree Mithra Townships (Pvt.) Limited-3 rd respondent and came to know that it started construction activity after obtaining permission from the concerned authorities. Thereupon, the petitioner- Association gave a representation dated 28.06.2007 to the GVMC-1st respondent. The President of the petitioner- Association also submitted a representation on 18.07.2007 reiterating the grievances expressed by the petitioner- Association in its representation dated 28.06.2007. There being no action on the representations, the petitioner-Association approached this Court invoking the jurisdiction under Article 226 of the Constitution of India. 3. When the writ petition came up for admission on 30.08.2007, a Division Bench of this Court directed the concerned authorities of the GVMC-1st respondent and VUDA-2nd respondent to undertake a thorough inspection of the site with reference to the approved plan of the building constructed by the respondent No.3 and make a statement before the Court whether or not the said respondent has made encroachment on road. Pursuant to the said direction, the authorities of GVMC and VUDA submitted inspection report. 4. The respondents 1 to 3 ﬁled counter-aﬃdavits. One Mukesh Kumar Meena, Commissioner, GVMC, Visakhapatnam, has sworn to the counter-aﬃdavit ﬁled on behalf of the 1 st respondent. It is stated in the counter-aﬃdavit that Balaji Gardens Layout was approved by the VUDA-2nd respondent in L.P.No.13/88 in an extent of Ac.3.77 cents. Earlier to this in 1985, the Gram Panchayat, Vepagunta has approved a layout in S.No.123/1, 2 and a part of land in S.No.124 of Vepagunta village with 47 layout plots of diﬀerent sizes and all the plots of this layout maintain the status quo as approved by the Gram Panchayat. In the year 1988, the VUDA-2nd respondent approved a layout in Sy.No.124 Part of Vepagunta village in an extent of Ac.3.77 cents of land in L.P.No.13/88 indicating 40 feet road at Southern side of this layout. It is noticed from this layout that the width of the road was 24 feet as on the date of approval as against the proposed 40 feet width road. The reasons for not forming the 40 feet road by that time itself i.e. soon after the layout is approved by the VUDA-2nd respondent are not known. The issue has come up now after a lapse of about 20 years from the date of approval of the layout in L.P.No.13/88. It is further stated in the counter-aﬃdavit that the Gram Panchayat, Vepangunta, has provided 33 feet road facility while approving plans of the owners of Plot Noa.1 to 30 and this road stands good. The plot owners are not under the obligation to leave any more land for the road as the layout was already grounded by them. In the year 1988, the VUDA-2nd respondent approved a layout in S.No.124 of Vepagunta in an extent of Ac.3.77 cents in L.P.No.13/88 indicating 40 feet road at the southern side of the land. While approving this layout, 24 feet of land was suggested from the applicants’ side and 16 feet land from the other side without noticing the layout approved by the Gram Panchayat in 1985 in respect of S.No.123/1,2 and a part of land in S.No.124 of Vepagunta village. In the Gram Panchayat approved lay out the width of the road is 35 feet from Plots 10 to 20 and the alleged road width was reduced to 30 feet. For better appreciation, I may refer paras.6 and 7 of the counter- affidavit and they are thus: “6. The 1st Respondent submits that while the things stood thus, Sri K.S.Shankar, Advocate issued a notice to the ﬁrst respondent Corporation on 31.07.2007 on behalf of his client Balaji Gardens Layout Welfare Association i.e. the petitioner herein raising certain points and requested to take appropriate action. A reply endorsement was issued n 14.8.07 the Hon’ble Court have issued directions that concerned authorities of the GVMC and VUDA should undertake a thorough inspection of the site with reference to approved plan of the building constructed by respondent No.3 and make a statement before the Court whether or not the said respondent has made encroachment on ground. Accordingly, the Planning Oﬃcials of both VUDA and GVMC have inspected jointly on 2.9.07 and it was desired to obtain real ground position by conducting plane table survey in the surrounding areas of Balaji Gardens Layout. Accordingly plane table survey was conducted on 3.9.07 with the existing road network pattern. All the roads in the surrounding areas including Balaji Gardens layout are 30’-0 to 33’-0” except 70’-0” road. The Town surveyor has ﬁxed the survey boundaries as per survey subdivision records and submitted the report with available width of the alleged road. As per Ground reality the alleged 40’-0” (24’-0”+ 16’-0”) road with is not maintained in between the two layouts. Earlier one layout was approved by gram panchayat in 1985 and the other was approved by VUDA in 1988 as L.P.No.13/88 and the same was revised as L.P.No.44/88. The entire area was developed with Pucca Buildings and the available width of the alleged road is varying from 33’-0” to 38’-0”. The combined alleged road is sharing from 15’-0” to 22’-0” from Balaji Gardens Layout side and other side was sharing from 11’-0” to 15’-0” and maintained the same as on ground is 30’-0” to 33’0”, and there are no encroachments on the said alleged road (i.e. southern side of Balaji Gardens layout) and almost it is a dead end road and the same was obstructed by A.P. Transco premises on the south west corner of L.P.No.44/88. Thus, it is clariﬁed that the roads in question are not Master Plan roads and there are no encroachments in the alleged road i.e. Southern side road of society layout and northern side linkage road. During the course of inspection it is noticed that the petitioner’s society members have constructed car sheds etc. by encroaching the 70’-0” wide road in the society layout. The Corporation has initiated action for removal of encroachments by issuing notices. In view of the circumstances stated above, and ground position it is feasible to maintain 33’-0” road in between the two layouts as the distance from the Simhachalam Main Road to western boundary of the L.P.No.44/88 is not lengthy. Accordingly, the ﬁrst respondent corporation issued a reply in Lr.RC.No.1271/07/ACP-VI/G1, Dt.14.08.2007 to the said Advocate Sri K.S.Shankar. Suppressing all the above facts, the petitioner ﬁled the present writ petition with all false and untenable allegations. 7. The 1st Respondent Corporation submits that it is a fact that the third respondent submitted a proposal to the ﬁrst respondent corporation with a request to grant permission for proposed construction of residential apartment consisting of Stilt for parking, Ground + 4 upper ﬂoors in Plot Nos.21 to 24 covered by T.S.No.124(P) of Vepagunta village in a total extent of 2518.64 square meters and the same was numbered as B.A.No.337/2006. On receiving the said proposal the oﬃcials of the ﬁrst respondent corporation inspected the site under reference and noticed that the site is having direct access from the existing 100’-0” wide Simhachalam road which is proposed to be widened as 200’-0” as per revised master plan. The third respondent also let road- widening portion to an extent of 788.90 square meters from the proposed site on free of costs. The northern side boundary of the third respondent is shown as 30’-0” wide road in the submitted plans. As on ground the 30’-0” road stands good. And there are no encroachments on the alleged road (i.e. southern side of the Balaji Gardens layout). Since the proposal is satisfying with the G.O.Ms.No.423 MA, Dt.31.07.98, the proposal as submitted and applied for has been granted by the ﬁrst respondent corporation vide proceedings in B.A.No.337/2006, Dt.21.06.2007 subject to observance of certain conditions as laid down in the proceedings. The 3rd respondent laid the foundation up to ground level as per approved plan. Hence, it is absolutely false to allege that the third respondent is unauthorisedly proceeding with the construction.” 5. Counter-aﬃdavit of the VUDA-2 nd respondent in brief is: The NSTL Employees Cooperative House Building Society Limited has taken layout approval in S.No.124/P of Vepagunta village vide L.P.No.44/88. In the approved layout, 40 feet road was proposed on the southern side of the entire layout. Out of total width of this 40 feet road, 24 feet in the approved layout boundary and 16 feet in others land. The above Society has handed over the roads and open spaces to the local authority i.e. earlier Vepagunta Gram Panchayat and now GVMC. Therefore, it is the look out of the GVMC to maintain the width of the road as per the approved layout. Sree Mithra Townships (Pvt.) Limited-3rd respondent has not applied to VUDA-2nd respondent before applying permission for construction of building to the 1st respondent. 6. The counter-aﬃdavit of the 3 rd respondent in brief is: Originally Smt.Mullapudi Bulli Manikyam and 11 others are the absolute owners of the Plot Nos.21 to 24 of S.No.124 Part, admeasuring 3610 sq. yards or 3018.429 sq. meters situated at Vepagunta village, Pendurthi Mandal, Visakhapatnam District covered by approved layout, P.R.No.113, dated 26.03.1985. The afore said individuals purchased the said property from Sri Varaha Lakshmi Nrusimha Swamy Devasthanam vide Registered Sale Deed dated 24.08.1995. Thereafter, the owners of the plot Nos.21 to 24 had agreed to sell and executed agreement of sale cum General Power of Attorney in respect of their 11/12 undivided shares in favour of M.Venkataramarao and the same was registered as Document No.2316/2002 before the Sub-Registrar, Gopalapatnam on 16.05.2002. The said M.Venkataramarao had entered into development agreement with Sree Mithra Townships (Pvt.) Limited-3 rd respondent for development of plot Nos.21 to 24 situated at Vepagunta village, Pendurthi Mandal, Visakhapatnam District. Pursuant to the development agreement, the said M.Venkatarama Rao submitted a plan for construction of a building with residential apartments on the said land. After thorough enquiry and physical inspection of the land, the 1st respondent accorded permission for construction of the residential apartments consisting of stilt for parking, ground + 4 upper ﬂoors in Plot Nos.21 to 24 covered under T.S.No.124 P of Vepagunta village, Pendurthi Mandal, Visakhapatnam District by proceedings B.A.No.337/06/ACP-VI/ Dt.21.06.2007. Permission was accorded on the condition that this respondent should leave 100 feet wide space on the eastern side apart from the existing 100 feet road for future expansion. This respondent is constructing the residential apartments strictly in accordance with the approved plan without any deviations. 7. Reply aﬃdavits have been ﬁled by the petitioner- Association to the counter-aﬃdavits of the respondents 1 and 3. It is stated in the reply aﬃdavit of the petitioners to the counter-aﬃdavit of the 1 st respondent, that 3rd respondent herein did not leave 16 feet as required by the VUDA-2nd respondent. For better appreciation, I may refer the relevant potion of the reply affidavit and it is thus: “I submit, that, the averments in paragraph 6 of the counter aﬃdavit are ambiguous and in-correct. I submit, that, when this Hon’ble Court issued directions after 20.8.2007 how could the 1st respondent herein make any reference to the directions issued by this Hon’ble Court in the reply endorsement dt.14.8.2007 to the notice dt.31.7.2007 issued by the advocate of the petitioner. I submit, that, several allegations made in paragraph 6 of the counter aﬃdavit are not correct. I submit, that, it is the grievance of the petitioner, that, the 3rd respondent did not leave 16 feet from their side and when the petitioner left 24 feet from their side in order to maintain 40 feet road as approved by the VUDA, the 2nd respondent herein. The said grievance is admitted by averment in paragraph 6 of the counter affidavit of the 1st respondent by stating that, “as per ground reality, the alleged 40 feet (24’-0” + 16’-0””) road width is not maintained in between the two layouts”. The said admission clearly establishes, that, the 3rd respondent herein did not leave 16 feet as required by VUDA, the 2nd respondent herein. I submit, that, the reference to the width of the road namely varying from 31 feet to 33 feet is not at all relevant. I submit, that, the averments in paragraph 6 of the counter aﬃdavit, that, “the combined alleged road is sharing from 15 feet to 22 feet from Balaji Gardens Layout side and other side was sharing from 11 feet to 15 feet and maintain the same as on the ground is 30 feet to 33 feet and there are no encroachments on the said alleged road (i.e. southern side of Balaji Gardens layout) and almost is a dead end road and the same was obstructed by A.P. Transco premises on the south-west corner of L.P.no.44/88, are not only ambiguous but also incorrect. The road is not a dead end road and the road takes its turn towards north before the A.P. Transco premises. I submit, that, it is incorrect to state, that, there are no encroachments in the alleged road i.e., southern side road of society layout and northern side linkage road. I respectfully submit, that, reference to alleged encroachments of petitioner’s society members by constructing car sheds etc., by encroaching the 70 feet wide road in the society layout is not at all relevant for the purpose of present writ petition. If the construction of the car sheds by the members of the petitioner society are found to be encroachments on 70 feet wide road, they are prepared to remove the same. I submit, that, the other averments in paragraph 6 are not at all relevant. I submit, that, there is no suppression of any fact by the petitioner, as the said reply dt.14.8.2007 was received after ﬁling of the writ petition before this Hon’ble Court. It is signiﬁcant to note, that, the 3rd respondent did not mention in it’s counter as to when the Gram Panchayat layout owners purchased the property. I submit, that, the owners of the plots on which 3rd respondent is constructing a multistoried complex purchased the same in the year 1995, whereas, the approved layout by the gram panchayat was in the year 1985.” 8. Consequent on change of provisions allotted to various Benches, this matter is listed before me. 9. Heard learned counsel appearing for the petitioner- Association; learned Standing Counsel of GVMC appearing for the 1st respondent; learned Standing Counsel of VUDA appearing for the 2nd respondent, and learned counsel appearing for the 3rd respondent. 10. Learned counsel appearing for the petitioner-Association submits that the layout of the Balaji Gardens clearly indicates the width of the road on the southern side is 40 feet and therefore, any constructions made by Sree Mithra Townships (Pvt.) Limited-3rd respondent encroaching upon the site earmarked for 40 feet road are liable to be removed. 11. Whereas, it is contended by the learned counsel appearing for Sree Mithra Townships (Pvt.) Limited-3 rd respondent that the width of the road throughout is not uniform. Many people have made constructions at various stretches of the road and even as per the approved layout PR No.113 dated 26.03.1985 the width of the road is not 40 feet and therefore, the relief sought for by the petitioner-Association cannot be granted. 12. Indisputably, the land covered by approved layout PR No.113 dated 26.03.1985 is to the south of Balaji Gardens Layout. The members of the petitioner-Association purchased plots in the Balaji Gardens Layout and constructed the houses. The plots purchased by Sree Mithra Townships (Pvt.) Limited-3 rd respondent forms part of the lay out PR No.113, dated 26.03.1985 approved by Vepagunta Gram Panchayat. The core issue involved in this writ petition is what is the width of the road, which lies between the Balaji Gardens Layout No.44/88 approved by the VUDA-2nd respondent and the layout PR No.113, dated 26.03.1985 approved by the Gram Panchayat, Vepagunta village. The Balaji Gardens Layout No.44/88 is subsequent to the layout approved by the Gram Panchayat, Vepagunta. The width of the road, which is to the north of layout approved by the Gram Panchayat is 35 feet. It is the contention of the petitioner-Association that the width of the road is 40 feet and out of the 40 feet, 24 feet width is from their side and 16 feet width is from the side of Sree Mithra Townships (Pvt.) Limited- 3rd respondent. I have gone through the Balaji Gardens Layout approved by VUDA-2nd respondent and the layout PR No.113 dated 26.03.1985 approved by Vepagunta Gram Panchayat. Without much controversy, it can be said that the width of the road to the north of the layout approved by the Vepagunta Gram Panchayat is 35 feet. Ofcourse, the width of the road in the Balaji Gardens Layout approved by the VUDA-2nd respondent has been shown as 40 feet. Since the layout approved by the Gram Panchayat, Vepagunta is much earlier to the approved layout of VUDA-2nd respondent, I take the width of the road as 35 feet. If the width of the road is taken as 35 feet, the petitioner- Association has to leave 21 feet from their side and Sree Mithra Townships (Pvt.) Limited-3 rd respondent has to leave 14 feet from its side. This ratio has been worked from the pleadings of the parties. 13. Accordingly, the writ petition is disposed of directing the GVMC-1st respondent to maintain the width of the road as 35 feet i.e. 21 feet from the side of the petitioner-Association and 14 feet from the side of Sree Mithra Townships (Pvt.) Limited-3 rd respondent and take necessary steps for removal of the encroachments, if any made on the road. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:01st September, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT}