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 : 5344 of 2007 Between: T. Sivamma W/o Late Siddappa R/o 4-5-63, near Ramamandhir Sadhasivapet, Medak District. ..... PETITIONER AND 1 The Municipal Commissioner, Sadhasivapeta Municipaltiy Sadhasivapeta,Medak District. 2 Mandal Revenue Officer, Sadhasivapeta Madnal, 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 under Article 226 of Constitution of India, declaring the action of the 1st respondent herein for insisting the petitioner for implementing the condition for leaving 125 sq mts. of Kandakam land by granting permission for construction of house only 3 mts.bearing No. 2-7-14, is illegal, improper and void and against letter issued by the 2nd respondent No. B/97/2007 dt 22-01-2007 Consequently by setting a side the proceedings NO. G1/371/2005 dt 14-07-2005 and granting permission for construction of house according to law 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 absolute owner and possessor of the premises bearing No.2-7-14 admeasuring 201.23 sq. mts. situated at Siddapur Base, Sadhasivapeta Municipality, Medak District. She submitted building permission application to the Sadhasivapeta Municipality rep. by its Commissioner-1st respondent on 12.07.2005. She also paid an amount of Rs.4,309/- towards betterment charges etc. The 1st respondent Municipality issued a receipt acknowledging the payment of Rs.4,309/-. According to the petitioner, the 1st respondent Municipality kept her application pending without passing any orders thereon for a period of one and half years. Therefore, she approached this Court by ﬁling W.P.No.25962 of 2006. The said writ petition came to be disposed of at the admission stage on 02.12.2006 directing the 1st respondent Municipality to consider her 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.G1/371/2004, dt.14.07.2005 granting permission for construction of house in 3 sq. mtrs. out of 201.23 sq.mtrs, by showing 125 sq. mtrs. as Kandhakam land. The said proceedings are under challenge in this writ petition. For better understanding of the grievance of the petitioner, I deem it appropriate to refer para.5 of the writ aﬃdavit and it is thus: “5. It is submitted that, the 2nd respondent herein addressed a letter No.B/97/2007, dt.22.01.2007 to the 1st respondent herein stating that, in Sadasivapet Municipality, the Kandhakam Government land is situated within the distance of 65 feet from the middle of the road N.H.No.9 and the land situated beyond the above area of Gramkhantam. Admittedly the petitioner is absolute owner of the land 201.23, she left 75 feet for kandakam at the time of submitting plan itself. The 1st respondent herein insisting me to leave 125 sq.mts. stating that, which is Kandakam land is illegal, improper and against the 2nd respondent letter No.B/97./2007, Dt.22.01.2007. The 1st respondent herein instead of measuring once from N.H.No.9 to building area 65 Mts. He has measured twice from N..No.9 to building area 65 feet from building are to another 65 feet. Therefore, he has measured 125 feet as a Kandhakam land and granting permission only 3 Mts . And the 1st respondent herein insisting for implementing the condition which is not permissible under law and against the 2nd respondent’s letter No.B/97/2007, Dt.22.01.2007. Therefore, hence, the action of the 1st respondent is arbitrary, illegal and improper. Basing on the 2nd respondent’s letter the 1st respondent herein by granting permission to the neighbouring house in the name of Kovuru Jaya Sri, W/o.Rama Goud of Sadasivapet Municipality No.3-66/1, Dt.17.01.2005 only for leaving 65 Mts. as a Kandhakam land. Whereas the petitioner has already left more than 65 Mts. even though the Authority insisting for 125 Mts. of Kandhakam land which is not sustainable under law. By showing discrimination from person to person by the 1st respondent as illegal, improper and unjust.” 2. Rule Nisi came to be issued on 30.07.2007. 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.3175 of 2007 with a prayer to vacate the interim order o f status quo dated 01.11.2007. L.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 by the then Commissioner of 1st respondent Municipality in the year 2005 and the petitioner was permitted to construct the house at a distance of 125 feet from the centre of N.H.9 road. It is further stated in the counter-aﬃdavit that the petitioner ﬁled earlier writ petition being W.P.No.25962 of 2006 after receiving the orders on her building permission application. It is also stated in the counter-aﬃdavit that permission granted to Kovuri Jaya Sri was already revoked under Proceeding No.G1/112/2004, dated 10.10.2006. There is a Kandakam land of 65 feet width all around Sadasivapet Old village and abutting to 41.00 Mts. wide N.H.9 road as per the record of E.E., R& B, NH Division-1. Since the petitioner commenced the work in deviation of the sanctioned plan in Kandakam land, a show-cause notice was issued to her under Section 228(i) of the A.P. Municipalities Act, 1965 (for short, ‘the Act’) and the same was conﬁrmed under Section 228(iii) of the Act vide Notice No.3/07-08, dated 04.07.2007. Against the said notice, the petitioner has an alternative remedy of appeal. The petitioner constructed the building contrary to the sanctioned plan by encroaching the national highway. 4. When the writ petition came up for hearing on 15.08.2008, 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.25962 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 the W.P.No.25962 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 the 1st respondent Municipality placed on record his sworn aﬃdavit dated 17.08.2008 along with Photostat copy of the building permission application submitted by the petitioner and also the proceedings dated 14.07.2005. It is stated in the aﬃdavit that the son of the petitioner received the proceedings dated 14.07.2005 along with the sanctioned plan. It is also stated in the aﬃdavit that the 1st respondent Municipality by notice dated 14.04.2007 informed the petitioner that the permission copy and the plan was received by the son of the petitioner on 13.02.2007 itself. 5. On 18.08.2008 the learned Standing Counsel appearing for the 1st respondent Municipality contended that the petitioner constructed the building contrary to the sanctioned plan and thereby laying of National Highway came to be stalled. Learned counsel appearing for the petitioner, contradicting the contention of the learned Standing Counsel, submits that the petitioner constructed the building in the area where the old building existed. To know whether the constructions made by the petitioner caused impediment for widening the national highway, this Court appointed Sri Hari Sreedhar, Advocate as Commissioner, to ascertain the extent of area, which is coming in the way of laying the National Highway No.9. The learned Advocate Commissioner inspected the site over which the petitioner constructed the house and submitted a report. The Advocate Commissioner stated in his report that there are no signs of widening the National Highway on any side of the existing road. Para.10 of the report of the Advocate Commissioner needs to be noted and it is thus: “10. The total width of the National Highway is 30 meters = 100 feet. But, however, the Road already formed and existing is 15.5 Meters only. There are no signs of widening the National Highway on any side of the existing road. When I asked the Deputy Executive Engineer to show till what point they want to widen the existing National Highway, he stated that they have no proposals to widen the existing road. Thus, I proceeded to note the distance between the structures in dispute and centre of the existing road which is 75 feet. Thus, the structures in dispute are 25 Feet away from the outer margin of total width of N.H.No.9.” 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 her 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 3 sq. mtrs. approached this Court by ﬁling W.P.No.25962 of 2006 and obtained orders as if her building permission application remain 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 01.06.2005. She enclosed plan to the building permission application proposing the constructions over a plinth area of 85.45 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 86.00 sq. mtrs. Permission came to be granted to the petitioner to the extent of 3 sq. mtrs. while rejecting the permission in respect of other extent. 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 her ﬁleing W.P.No.25962 of 2006. Whereas, the petitioner submits that the proceedings dated 14.07.2007 were not served on her by the date of ﬁling of W.P.No.25962 of 2006. Even original ﬁle placed before me indicates that some one, according to the 1st respondent Municipality it is the son of the petitioner, received the proceedings without putting the date of receipt. Without deliberating further on the points urged by the respective counsel, I take that the proceedings dated 14.07.2005 came to be served on the petitioner after ﬁling of W.P.No.25962 of 2006. Under the proceedings dated 14.07.2005 permission came to be granted to the petitioner to put up constructions only to the extent of 3 sq.mtrs. while rejecting the plan submitted by her. 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 husband of the petitioner which she got in partition after the death of her husband 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 six weeks from today or to approach the competent Civil Court for establishing her 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 from today 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. within three days. B/O cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT}