HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.16892 of 2004 Date : 26.08.2009 Between : S.Anantha Ramam. …..Petitioner And The State of Andhra Pradesh, rep. by its Secretary, Municipal Administration & another. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.16892 of 2004 ORDER : In this writ petition, the petitioner has questioned the validity of the notice dated 16.09.2004, issued in ROC.No.195/17/1956-04 by the Commissioner, Khammam Municipality, in exercise of powers under Section 194 of the A.P. Municipalities Act, 1965, for removal of the petitioner from the alleged encroached portion of 303 square yards of land in Survey No.123 within Khammam Municipal limits. 2. The impugned notice is issued referring to an agreement alleged to have been executed by the Late father of the petitioner on 27.09.1956, admitting about his encroachment of municipal land to the extent of 303 square yards with an undertaking to handover the same to the Municipality whenever it is required. 3. In this writ petition, it is the case of the petitioner that the land in question which is appurtenant to a rice mill, covered by Survey No.123, is in possession of the petitioner as successor in interest, which was derived from his Late father. It is stated that earlier, when proceedings were initiated with regard to the same land under the provisions of the Land Encroachment Act, 1905 and also under A.P. (Telangana Area) Land Revenue Act, 1317 Fasli, the petitioner has approached this Court and the proceedings initiated against him were dropped. It is submitted that to get over the said proceedings, the impugned order is issued without providing necessary material, merely based on the agreement alleged to have been executed by the Late father of the petitioner. 4. It is submitted by Sri Abhinand Kumar Shavli, learned counsel appearing for petitioner, that the time granted for vacation of the land is 48 hours, which is not in conformity of the requirement of Section 194 of the A.P. Municipalities Act, 1965. 5. Counter affidavit is filed by the 2nd respondent- Commissioner. In the counter affidavit, it is stated that as the Municipality is not a party to the earlier proceedings, the earlier orders are not binding on them. Further, in the counter affidavit, it is stated that there was a newspaper item to the effect that Municipal lands are leased and continued arbitrarily, and thereupon, the Collector has appointed the Inquiry Committee to study the records and submit a report, and the same is awaited. On seeing the above said newspaper item, the present notice is issued for removal of encroachment in an area of 303 square yards. 6. From a perusal of the impugned proceedings, it is clear that there is no indication of giving any notice to the petitioner. So far as Section 194 of the A.P. Municipalities Act, 1965 is concerned, it empowers the Commissioner to order eviction of an occupant, who is authorized to occupy particular premises, in case if the rents were not paid or if the occupant sub-lets it or acts in contravention of any of the terms, subject to which, such authorization is permitted. Upon a reading of the impugned proceedings, it is evident that there is no indication of any such allegations, as contemplated under Section 194 of the Municipalities Act. Though an agreement is alleged to have been executed by the Late father of the petitioner, undertaking to vacate the premises as and when required by the Municipality, it is to be noticed that such an undertaking is given four Decades prior to the issuance of the impugned proceedings. In that view of the matter, unless the petitioner was issued prior notice and opportunity, respondents ought not to have issued the impugned proceedings straightaway for eviction within 48 hours. In any event, even assuming that the conditions contemplated under Section 194 of the Municipalities Act are applicable, even then, the permissible time is 30 days to seek vacation, but not otherwise. 7. As much as it is submitted that the petitioner has also filed a detailed representation on 17.09.2004, I deem it appropriate to dispose of the writ petition by setting aside the impugned proceedings, and direct the respondents to consider the matter afresh. The notice, dated 16.09.2004, shall be treated as a show cause notice, for which, the petitioner has already filed the representation dated 17.09.2004. If the petitioner wants to make further representation with reference to the allegations made in the notice dated 16.09.2004, he is permitted to file additional representation, if any, within a period of six weeks from today. On filing such representation, it is open to the respondents to consider the representation of the petitioner, dated 17.09.2004, and the further representation to be filed, if any, and pass appropriate orders after giving opportunity of hearing to the petitioner. Till such orders are passed, the respondents are directed to maintain status quo as on today, with regard to the subject land in question. 8. Writ petition is allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 26th August 2009 ajr