THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO. 26824 OF 2006 BETWEEN: K. GAFFAR, S/O KHADEER MOHINUDDIN ------ PETITIONER AND THE COMMISSIONER, TADIPATRI MUNICIPALITY, TADIPATRI, ANANTAPUR DISTRICT AND 16 OTHERS ----- RESPONDENTS THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO. 26824 OF 2006 ORAL ORDER: 1. Heard Sri Y. Ramarao, counsel representing the Writ Petitioner. Sri S.I. Newton, Sri D.V. Sitaramamurthy, Sri C. Rramachandra Raju, Sri K. Ravindra Kumar, the learned Government Pleader for Home and the learned Assistant Government Pleader for Revenue representing the respondents. 2. R4, R5 to R13, R14 to R17 were impleaded by this Court by allowing their respective applications. W.P.M.P.No. 35194 of 2007 is filed praying for the exhibiting of the CD evidencing illegal demolition of Northern Portion of Siddi Basha Darga and also the assurances given by the respective respondents. This Court ordered W.P.M.P.No. 33014 of 2007 on 14.12.2007 impleading those parties who also filed W.P.M.P.No. 35194 of 2007 praying for exhibiting of the CD. Several facts had been narrated how they are interested in the present litigation. In the light of several reasons which had been recorded, the said CD is hereby received by this Court and WPMP No. 35194 of 2007 is ordered to the said extent. WPMP NO. 33014 of 2007 and also WPMP NO. 35194 of 2007, which were at the SR stage at the relevant point of time had been ordered by this Court on 14.12.2007. 3. One Sri K. Gaffar S/o Khadeer Mohinuddin, filed the present Writ Petition for a Writ of Mandamus by declaring the impugned action of the first respondent in not according permission to construct northern side of Siddi Basha Darga, situated at C.B. Road ;(Cuddapah – Ballari Raod), Tadipatri , which was demolished illegally by the first respondent authorities, pursuant to the application dated 15.12.2006 as illegal and arbitrary and consequently direct the first respondent to accord permission to construct the demolished portion of the Siddi Basha Daargah towards the northern side forthwith and pass suitable orders. 4. Sri Y. Ramarao, the learned counsel representing the petitioner had taken this court through the contents of the affidavit filed in support of the Writ Petition and also how without following the procedure this unauthorized demolition was affected. The counsel would maintain that the order made in W.P.No. 27353 of 2005 would not in any way come in the way of this court in granting appropriate directions in the present Writ Petition. The learned counsel also pointed out several counter affidavits which had been filed and how changed versions had been pleaded in the counter affidavits and ultimately would maintain that it is a fit matter to be allowed. The learned counsel also pointed out that in the light of the tense situation, the District Collector having made several assurances is taking an unsustainable stand before this court. The learned counsel also would maintain that even in the light of the CD produced before this Court, it is clear that due to local pressure or for certain other reasons, the second respondent is not keeping up the promise and hence, the counsel would submit that it is a fit matter where appropriate reliefs to be granted in favour of the petitioner in the interest of the minority community involved in the present litigation. 5. Sri Newton, the learned Standing Counsel representing R1 had explained under what circumstances the counter affidavits were filed, at any rate, the counsel would submit that in the light of the facts and circumstances, let the District Collector, the competent authority take an appropriate decision in this regard and all such factual controversies cannot be gone into by this Court in a Writ Petition. The learned Standing Counsel also had drawn the attention of this Court to the order made in Writ Petition No. 27353 of 2005. 6. The learned Assistant Government Pleader for Revenue, however, would maintain that no such assurance had been give by the concerned District Collector and made certain further submissions relating to the controversy. 7. Sri D.V. Seetharamamurthy, learned counsel had taken this court through the respective pleadings of the parties and would maintain that in the facts and circumstances of the case even if the relief prayed for in the Writ Petition if carefully analysed, such a relief cannot be granted. The counsel also placed reliance on certain decisions. 8. Similar stand had been taken by Sri C. Ramachandra Raju. 9. Sri K. Ravindra Kumar had taken this court through the contents of the affidavit filed in support of the implead application WPMP No. 33014 of 2007 and also the application for exhibition of CD W.P.M.P.No. 35194 of 2007, and would maintain that if the CD produced before this Court is witnessed by the Court, this Court may well appreciate why such a stand is being taken by the District Collector concerned. 10. Heard the counsel. Perused the records. 11. The petitioner filed the Writ Petition No. 27353 of 2005 before this Court challenging the impugned action of the first respondent in demolishing the part of the Dargha including two minars, without following due process of law and without following the procedure as contemplated under the A.P. Municipalities Act. This Court by an order dated 22.12.2005 made the following order: “ The Muthawali of Siddi Basha Dargha, Tadipatri, filed the instant writ petition seeking a writ of mandamus declaring the action of the respondent- Municipality i.e., Tadipatri Municipality, in demolishing the part of the Dargah including two minars, without following due procedure under law, as illegal and arbitrary. It is the case of the petitioner that Siddi Basha Dargha is an old religious place visited by many devotees regularly for the last 100 years. According to the petitioner, there is no road between the private property and the Dargah on the northern side, and 5 feet place is being utilized by private owners i.e., owners on the northern side of the Dargha and people visiting the Dargha. On the southern side, 50 feet wide road was widened up to 90 feet recently, but two days prior to the filing of the Writ Petition, the Municipal Commissioner along with other officials visited the Dargha so as to form a new road. The petitioner alleges that such new road was not approved in the master plan nor there is any scheme approved by the Municipal Council. Therefore, the present Writ Petition is filed. Heard the learned counsel for the petitioner, Mr. Y. Rama Rao, and the learned Standing Counsel for the respondent-Municipality. Mr. S. I Newton, the learned Standing Counsel submits that as on today, there is no proposal by the Municipality to lay the road or develop the existing road on the northern side of Dargha, and the Writ Petition is filed on a mere apprehension. The same is recorded, and the Writ Petition is dismissed, as the same is filed on a mere apprehension, observing that if there is going to be any proposal for developing the existing pathway of 5 feet on the northern side of Dargha, the Municipality shall do so only in accordance with law. No costs.” 12. It is stated that the Municipality is going to lay a new road by demolishing Dargha without following any due process, but the above writ petition was dismissed on the ground of mere apprehension and the Municipality is not going to lay the road, as there was no proposal to lay the road or developing the existing road on the Northern side of Dargah. But the first respondent along with his subordinates have demolished the Dargah for widening of the Road without issuing any prior notice of opportunity to file any objections. It is pertinent to submit that, this Hon’ble Court while dismissing the Writ Petition has categorically observed that, if there is going to be any proposal for developing the existing pathway of 5 feet on the Northern side of Dargah, the Municipality shall do so in accordance with law. But the first respondent without issuing any notice or without following due process of law has demolished the Dargah towards Northern side of road widening. Since the demolition of the Dargah was in utter violation of the orders passed by this Hon’ble Court and total disregard as there was no prior notice issued by the first respondent, being the Commissioner of Municipality, Tadipatri, the petitioner filed C.C.No. 1246 of 2006 to punish the first respondent under Contempt of Courts Act. 13. Further it is stated that the second and third respondents have assured that they will cooperate in re- construction of the demolished portion of the Siddibasha Dargah. Subsequently, the petitioner filed an application on 15.12.2006 to the first and second respondents, copy of which is marked to the first respondent, requesting to accord permission to construct the demolished portion of the Siddibasha Dargah towards Northern side, which was illegally demolished by the first respondent along with his subordinates on 16.11.2006. But so far no permission was accorded for the construction of the demolished portion of Siddibasha Dargah towards Northern side. The said act is illegal. 14. The first respondent filed counter affidavit, additional counter affidavit and further additional counter affidavit on 14.1.2007, 15th March2007 and 21st March 2007 as can be seen from the records. The material papers Municipal Notice to petitioner dated 27.1.2006, Municipal Notice to Petitioner dated 2.11.2006, Vaartha daily news item dated 16.11.2006, and Andhra Jyothi daily news dated 16.11.2006 have been placed before this Court. It is needless to say that a news item placed before this court may not help either of the parties. The second respondent filed counter affidavits. The fourth respondent also filed counter affidavit. No doubt the other parties relied upon the affidavits filed in support of the applications while praying for impleading of the parties. 15. In the counter affidavit filed by the first respondent dated 14.1.2007, it is stated that the Tadpatri Municipality is a Grade I Municipality. The area in and around the Tadpatri Municipality is growing with better industrial infrastructure. There are 2000 industries of black stone and 500 granite stone factories, two cement factories (Penna and Ultratech), and SJK steel. The Tadpatri Municipality undertook an underground Drainage Scheme with a cost of Rs. 19 Crores of which 65% of work has already been completed. This Municipality became first in banning the plastic bags below 20 microns. 16. With the increase of the population of the town and also with the increase of the industrial infrastructure, the number of all types of vehicles has been enormously increased and with the available Narrow Roads the public of Tadpatri Town are facing more traffic problems, as about 2000 to 3000 of all types of vehicles are flying on the roads of the Tadpatri Town every day. Keeping in view the existing congested streets in the town, the Municipal Council of Tadpatri had undertaken the road widening programme in the town. As the above said traffic problem was a genuine one, all the public of the town have cooperated voluntarily in a great way for widening and improvement of the streets of Tadpatri Town. 17. It is also averred that in that connection, two Hindu temples line Nagulakatta Temple existing near M.R.O Office was shifted to a near by place at a distance of 50 feet and another Chowdamma Temple existing at Vijayalakshmi theatre was shifted to another place of devotees’ choice. At the same time, some structures of two well known mosques one Banda Mosque and another Bowli Mosque have been removed voluntarily welcoming the road widening programme. Where ever the help of the Municipality was required, it extended its help financially and materially for reconstruction of the removed structures at the place of devotees’ choice. In such a way, the Municipality is taking steps to provide all amenities to the public including wide roads for free movements with the cooperation of the people of all communities. 18. Under the above stated circumstances by way of a Resolution, the Municipality requested the petitioner herein to remove the objectionable structures from the encroached area of compound wall of Siddi Basha Dargha. But inspite of notices issued to him to that affect, he did not obey the decision of the Municipality and did not cooperative in removing voluntarily the objectionable structures to facilitate for free flow of traffic. Except the petitioner herein, all the public of the town have cooperated with the Municipality in the larger interest of the public safety. 19. It is also further stated that the petitioner in the above said Writ Petition i.e. Sri Gaffar is not a Mutawali or Mujavar of the said Siddi Basha Dargah Committee as claimed by him. He has not produced any proof to establish that he is a Mutavalli or Mujavar of Siddi Basha Dargah. He declares himself as Mutavalli in this present Writ Petition and declared himself as Mujavar in earlier W.P.No. 27353 of 2005. He is not a religious person, but for his personal ends he grabbed the siddi Basha Dargah place situated on the road margin of C.B. Road existed initially in an extent of area of 16.0”x 8-6” and subsequently with his ill gotten money, made further unauthorized encroachments in the road margin and made constructions like compound wall and shop rooms, causing great inconvenience to the public traffic on the C.B. Road particularly at Ashok Pillar Junction Point. He let out shop rooms to others for rent and one room was let out to his own brother who is maintaining cassette center. He is amassing the entire income derived from the rents and advances of shop rooms and also from the income from Dargah Hundi without rendering accounts to anybody. 20. It is further averred that after Tadpatri Municipal Council took up developmental activities in Tadpatri Municipal limits like widening of existing C.B. Road, providing under ground drainage, laying of CC Roads, and providing central lighting system particularly in CB Road connecting Kadapa-Tadpatri-Gooty and Anantapur, the public of Tadpatri Municipality by giving their helping hand, voluntarily removed the unauthorized constructions made on either side of the CB Road which were under encroachments for the purpose of widening of the said CB Road. 21. Similarly as above, several Hindu and Muslim Religious Institutions voluntarily removed the required portions of constructions from their Mosques as well as the Temples. The said process of widening of C.B.Road is almost being completed except at the point of Ashok Pillar Junction where the disputed Siddi Basha Dargah is existing on the C.B.Road margin which is causing inconvenience to the public and vehicular traffic and on account of the same, the entire laying of CC Road and construction of Under Ground Drainage System at the disputed place remained pending. The Tadpatri Municipal Council and elite of Tadpatri Town took a serious thought in finding a solution to the present dispute raised by the Writ Petitioner Sri K. Gaffar. 22. As per the Municipal Records Siddi Basha Dargah area is an encroachment of road margin measuring 16’- 8”x 8’-6” at the northern side of C.B. Road and the Municipality had noted the said encroachments in the register showing it as the encroachment in the year 1950- 51. Thereafter, the size of the said encroachment area has been gradually increased to 45’x35’. In the said increased encroachment portion the Writ Petitioner has constructed shop rooms and compound wall, causing obstruction to the vehicular traffic and also the said road widening programme of C.B. Road. 23. In this regard, Tadpatri Municipal Council in discussion with the Muslim Religious Leaders and also with elite of public of Tadpatri Town, proposed to remove the objectionable construction of shop rooms compound wall made in the additional encroached area around the Holy shrine of Siddi Basha Dargah. Initially the Tadpatri Municipality issued a notice dated 27.1.2006 to the Writ Petitioner Sri K. Gaffar requesting him to remove voluntarily the shop rooms and compound wall constructed on encroached land for road widening purpose, and again a final notice was also issued to him on 2.11.2006. 24. However, the Writ Petitioner herein deliberately refused to take the said notices and the said notices were affixed to the wall of the petitioner’s house at D.No. 6/116, Chinna Bazar, Tadpatri. After issuance of the said notices, as the petitioner did not comply the condition made in the said final notice certain male elected members of Tadpatri Municipal Council, initiated steps to remove the objectionable encroachments made on northern side of Siddi Basha Dargah on 16.11.2006. The said process of removing the encroachments could not be completed as the petitioner supported by the Rowdy elements came there and obstructed the removal process, taken up by certain male members of Municipal Council along with elite of the town. Keeping in view the Law and order problem, the District Collector and Superintendent of Police, Anantapur came to the spot and controlled the situation. A peace Committee was formed at the instance of the District Collector to find a solution for solving the said problem. 25. The Municipality of Tadpatri had not participated in removal of objectionable encroachments. It is submitted that the representation dated 15.12.2006, said to have been submitted to the District Collector and marking a copy to the first respondent does not seem to be a proper application, as per rule seeking permission for reconstruction of the said demolished portion of the encroached compound wall of the said Dargah. 26. It is stated that the Tadpatri Municipality issued two notices to the petitioner on 27.1.2006 and 2.11.2006. But the petitioner refused to receive them and the Municipality without any option affixed the notices to the wall of the petitioner’s house at D.No. 6/116, Chinna Bazar , Tadpatri. As the petitioner did not cooperate for the removal of the encroached compound wall with shop rooms, the Male Elected Members of the Municipal Council of Tadpatri and elite of the town initiated steps for removal of the said objectionable construction of shop rooms and compound wall, in the encroached road margin. Then the petitioner, supported by anti social elements stalled the process of removal of the said objectionable encroachments and created a Law and Order problem. The said removal of the objectionable portions of encroachments around the Dargah, would result in loss of income to the petitioner from the said unauthorized constructions. The Municipal Council contemplated to retrain the holy shrine of Siddi Basha Dargah by making the compound wall in a oval shape by removing the additional encroachments made recently, to provide free passage to the vehicular traffic without effecting the sanctity of the holy shrine of Siddi Basha Dargah. 27. In reply to Paras 4,5,and 6 , as said above it is averred that the Tadpatri Municipality issued two notices to the petitioner on 27.1.2006 and 2.11.2006 by following due process of law. Hence, the petitioner cannot contend that no prior notice was issued to him for removal of the objectionable constructions of shop rooms and compound wall made in the additional encroached road margin. It is submitted that neither the Municipal Commissioner, the first respondent herein nor the staff of the Tadpatri Municipality participated in removal of the said objectionable encroachments. Therefore, the allegation that the first respondent herein had committed contempt is not correct. Though the petitioner filed the said Contempt Case misleading the facts of the case, bringing all factual positions to the notice of the Court, a detailed Counter was filed by the respondent. 28. Further it is averred in reply to para 7, it is submitted that the allegations of Para No. 7 are not correct and not tenable. The Writ Petitioner has not submitted any proper application, along with plans, ownership documents to consider for reconstruction of the demolished portions of the encroached part of the compound wall of the said Dargah. Mere submitting a representation by the petitioner dated 15.12.2006 to the 2nd and 3rd respondents herein marking a copy to the first respondent herein requesting to accord permission for reconstruction of the said demolished portion of the compound wall of the Siddi Basha Dargah, is not in accordance with the provisions and the rules made under A.P. Municipalities Act, 1965 as amended from time to time. Moreover, it is submitted that the said site is under dispute as stated above. At the instance of the District Collector , Anantapur a peace committee was formed for finalization of the said issue. In the above stated circumstances, the petitioner cannot contend that the action of Tadpatri Municipality in not according permission for reconstruction of the objectionable demolished portion as illegal, arbitrary and as such, he is not entitled for the relief as prayed for. 29. In the additional counter affidavit dated 15.3.2007 it is stated that keeping in view the gradual increase of the population and industrial development at Tadpatri Municipality area, to avoid traffic problems, the Tadpatri Municipality has taken up the road widening programme to widen the congested roads. In this regard, the public of Tadipatri Town was made aware of the importance of the same and also for the overall development of the Town. In that connection, the public and the representatives of the Organizations, Institutions, Temples, Churches, Mosques have extended their cooperation for demolition and removal of the structures where ever they were required to be removed and the Municipality also extended its cooperation for rebuilding the Temples, Churches, Mosques etc at their selected places. The public of Tadipatri Town belong to all communities and religions have welcomed the overall development of the Town. The Municipality never tried to hurt the feelings of any community or religion in the above said process. 30. It is stated that the Cuddapah-Bellari road (C.B.Road) is a main road passing in the middle of the Town. For having free moment of all vehicles moving on the said road, the Municipality has taken up road widening programme with the financial assistance of R& B Department. All the owners of the private properties had cooperated in removing their affected portions in the said Road widening and received their respective compensation and had their rehabilitation. 31. It is also averred that Siddi Basha Dargah is situated on the road margin of C.B. Road, near Ashok Pillar Centre. Keeping in view the importance the Holy shrine of Siddi Basha Dargah, the Municipality had not taken any decision for removal or replacing the same as was done in the cases of some other Mosques or Temples. However, the Municipality decided to widen the existing small roads on Southern and Northern sides of the said Dargha. As a small road of 6 feet already existed between Northern sides of the said Dargha, the said road was widened to an extent of 15 feet further with the cooperation of the adjacent shop owners. 32. Further it is stated that originally the Siddi Basha Dargah was an extent of 16x8.5 feet and subsequently the area of the said Dargha has become 45x35 feet by encroaching the surrounding area during the period of different Municipal Council. As already stated above, the present body of the Municipality had taken a decision not to remove or replace the Siddi Basha Dargah from its place at C.B. Road but requested the cooperation of the petitioner herein as a representative of the same to remove the compound wall and the shop rooms constructed in encroachment area around the Siddi Basha Dargah and also requested to remove the objectionable structures in an extent of 5 feet only to have a free flow of Traffic at Northern side and Southern side of said Dargha. 33. The petitioner herein was issued a notice dated 27.1.2006 to remove the said objectionable compound wall voluntarily. It was also decided by the Municipality to construct the compound wall of said Dargha in an oval shape and also to develop the said Dargha with Municipal funds. The said decision of the Municipality was welcomed by the Muslim Community. The issue was widely published in newspapers and received appreciation of all. 34. It