IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 12300 of 2002 Between: Kolli Nookaratnam S/o. Sri Pothuraju Kotturu College Junction Anakapalli ..... PETITIONER AND 1 S.C. Railways Rep. by its Section Engineer (PublicWorks) Kasimkota 2 S.C. Railways Rep. by its Asst. Divisional Engineer Tuni 3 S.C. Railways Rep. by its Divisional Railway Manager Vijayawada 4 The Mandal Revenue Officer Anakapalli Mandal .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, order or direction more particularly one in the nature of writ of mandamus by declaring the action of the respondents herein in threatening to demolish the house constructed in the land allotted under patta No. 13 in Sy.no.654 to an extent of 0.03 Cents bounded by East: Residence of Smt. Mosuru Eswaramma West: Canal South: Kotturu to Ramapuram R & B Road North: Land of Central Railways, and was assessed by the kotturu Gram panchayat vide No. 1261 by the 1st respondent, at the instance of the 2nd and 3rd respondents as illegal, arbitrary and violative of Articles 14 and 300 A of the constitution of India and consequently direct the respondents not to demolish the constlructions of the petitioner's house and pass Counsel for the Petitioner:MR.K.V.SIMHADRI Counsel for the Respondent No.: MR.S.S.VARMA (ADDL CGSC) The Court made the following : THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 12300 OF 2002 ORDER 1. The petitioner claims to be in possession of Ac.0-03 cents in Survey No. 654 bounded by East, residence of Smt. Mosuru Eswaramma, West, Canal; South, Kotturu to Ramapuram R & B Road; and North, land of Central Railways. It is further claimed by the petitioner that he constructed house by raising loan from A.P. Urban Development and Housing Corporation, Visakhapatnam. According to him, 3rd respondent is contemplating to demolish part of the building on the northern side alleging that the constructions are encroaching in the land owned by the South Central Railways. 2. Rule nisi came to be issued on 9-7-2002. An order of interim stay as prayed for has also been granted on the even date vide W.P.M.P.No. 15230 of 2002. The interim stay granted on 9-7-2002 came to be extended until further orders on 19-7-2002. The respondents 1 and 2 entered appearance and filed counter. 3. G.V.Ramana Reddy has sworn to the counter affidavit filed on behalf of the respondents 1 to 3. It is stated in the counter affidavit that the petitioner occupied an area of 30.035 square meters or 35.98 square yards of the Railway Land unauthorisedly and therefore, necessary steps are being initiated to remove the encroachments. For better appreciation, I may refer para 7 of the counter affidavit, which reads as here under: “It is submitted that the respondent NO.1 during the course of his inspection in order to check and protect the Railway boundaries noticed some encroachments in his section in Kothuru village. He has issued a letter to the petitioner to remove the encroachments. It is not correct that the respondent No.1 has not issued any notice to the petitioner. In fact, petitioner admitted receipt of letter under para No.6 of her affidavit. The duties of section Engineer are protection and physical verification of land boundaries and to erect the Railways pegs in the Railway land. The respondent NO.1 has erected the Railway peg in the Railway land only which is unauthorisedly occupied by the petitioner and not in the said Patta land given by the Mandal Revenue Officer, Anakapalli for the construction of house by the petitioner. The action taken by the respondent Railways in protecting and Railway property is not a threat but discharging of official duties only. At that time the petitioner has not shown any documentary evidence to prove that the disputed land belongs to the petitioner but not of Railways”. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the petitioner submits that the petitioner raised loan from A.P. Urban and Housing Corporation and put up constructions on the site allotted to him under the Patta NO.13 in Survey No.654 and therefore, the respondents 1 to 3 cannot be permitted to remove the construction without following the due process of law. He also submits that the petitioner put up construction after obtaining necessary permission from the Grampanchayath and thereafter the Grampanchayath assessed the house to tax. 6. Per contra, learned standing counsel appearing for the Respondents 1 to 3 submits that the petitioner encroached 30.03 square meters or 35.98 square yards of the Railway lands and put up constructions and therefore, the respondents 1 to 3 have every right to take steps for removal of the unauthorized constructions made by the petitioner on the Railway land. 7. It is the case of the petitioner that he put up construction on 3 cents of land allotted to him under Patta No.13 in Survey No. 654. Whereas it is the case of the respondents 1 to 3 that the petitioner encroached 30.03 square meters or 35.98 square yards of the Railway land and put up construction. The issue as to whether petitioner encroached the railway land cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. It is for the petitioner to establish the same in a Civil Court stating that the construction made by him are within 3 cents which has been allotted to him to Patta No.13. 8. In the result, the writ petition is disposed of reserving liberty to the petitioner to establish that the constructions made by him are within Ac.0-03 cents, which has been allotted under Patta No.13. The interim order granted on 9-7-2002 shall remain in force for a period of three months. No order as to costs. _____________________________ Justice B.Seshasayana Reddy 5th June, 2009 Note: C.C. in three days B/o KM THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 12300 OF 2002 5th June, 2009.