IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.19683 of 2008 Between: Smt. Diddi Atchayamma, W/o. Veera Venkata Rao, Aged about 62 years, R/o. Keesavaram Village, Mandapeta Mandal, East Godavari District. …Petitioner. AND The Gram Panchayat, Keesavaram, Mandapeta Mandal, East Godavari District, rep by its. Panchayat Secretary and others. …Respondents THE HON’BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.19683 of 2008 ORDER: This Writ Petition is filed for a Writ of Mandamus or any other appropriate Writ, order or direction declaring the action of the official respondents in granting building permission in favour of 5th respondent, which culminated in the Resolution No.37 dated 06.08.2008 passed by the 1st respondent – Keesavaram Gram Panchayat, as illegal, arbitrary and violative of Article 14 of the Constitution of India and to pass suitable orders. This Court issued Rule Nisi on 11.09.2008 and granted interim suspension in W.P.M.P.No.25699 of 2008 on the said date. W.V.M.P.3426 of 2008 is filed to vacate the interim suspension. The 1st respondent also filed counter affidavit. The para-wise remarks obtained by learned Government Pleader for Panchayat Raj and Rural Development representing Respondent Nos. 3 and 4 in the Writ Petition are also placed before this Court. Sri. A.V. Sesha Sai, learned counsel representing the writ petitioner had taken this Court to the contents of the affidavit filed in the writ petition and would maintain that the women of Ward No.5 to 9 of Keesavaram Gram Panchayat, Mandapeta Manal, East Godavari District submitted a representation on 23.02.2008. The learned counsel also would point out that 1st respondent issued a legal notice on 25.02.2008. The petitioner along with others got issued a Telegraphic Legal Notice dated 29.03.2008. The learned counsel also pointed out to certain proceedings, specifically pointing out the controversy and would maintain that the Keesavaram Gram Panchayat, Mandapeta Mandal, East Godavari District passed a resolution rejecting the building permission on 31.03.2008. The 4th respondent issued memo on 28.06.2008. The learned counsel also would maintain that without considering any aspects, whatsoever, the Keesavaram Gram Panchayat again passed Resolution No.37 granting approval on 06.08.2008. The learned counsel would maintain that in the facts and circumstances of the case, in as much as the petitioner is not having any other alternative remedy, the present writ petition is filed. Sri Prabhakar Rao, learned standing counsel representing Respondent Nos.1 and 2 would maintain that the petitioner is having an effective alternative remedy under Section 128 of the Andhra Pradesh Panchayat Raj Act, 1994. The learned counsel would further maintain that the present subject matter and subject matter of the prior suit being O.S.No.55/88 on the file of the Court of the District Munisif, Alamuru, are different and further contends that on appreciation of the ground reality, due permission had been granted, and hence, the Writ Petition is to be dismissed. The learned Government Pleader for Panchayat Raj and Rural Development would maintain that the contention of the Writ Petitioner that the father of 5th respondent filed O.S.No.55/88 on the file of the District Munisif, Alamur, in relation to the very same property is not correct and the said suit was filed for a different property and the building permission, which was applied for at present, is in relation to private property of the 5th respondent and there is no encroachment upon the property. Sri. Challa Dhananjaya, learned counsel representing 5th respondent had taken this Court through the report filed by the Commissioner in I.A.No.238/88 in O.S.No.55/88 and also pointed out the averments made in the plaint of O.S.No.55/88 and further pointed out the plan and also relied upon certain photos. The learned counsel would maintain that in the facts and circumstances of the case, the writ petition is to be dismissed. Heard the counsel. It is the case in the writ petition that the writ petitioner is permanent resident of Keesavaram Village, Mandapeta Mandal, East Godavari District and there is a community public latrine for ladies near Sri Kanchi Kamakshi Temple in Keesavaram Gram Panchayat, Mandapeta Mandal, East Godavari District. When the 5th respondent herein, who is a resident of the village demolished the Eastern side wall of the said public latrine, the women of Ward Nos.5,6,7,8 and 9 submitted a representation dated 23.02.2008 to the 1st respondent complaining the same and requested the 1st respondent to construct Sulabh Complex and to take possession of the land. It is also the case of the writ petitioner that while things stood thus, the 5th respondent encroached upon a part of the public latrine, began construction of building and the 1st respondent issued legal notice dated 25.02.2008, asking the 5th respondent to show cause. Then the 5th respondent made an application to the 1st respondent for building permission showing the above public land. At that time, the writ petitioner, along with three others got issued a Telegraphic Legal Notice dated 29.03.2008 to respondents 1 to 3 requesting not to grant building approval in favour of the 5th respondent. It is also the case of writ petitioner that on 31.03.2008, Keesavaram Gram Panchayat passed resolution No.186 rejecting to grant building permission in favour of the 5th respondent as there was a request made by Keesavaram Gram Panchayat to the Revenue authorities to fix the boundaries in view of the dispute in land. Respondent Nos. 1 to 3 got issued a reply notice dated 10.04.2008 to the said notice informing the above aspects. Subsequently, after receipt of report of Mandal Surveyor, the matter was once again placed before the Keesavaram Gram Panchayat and the Keesavaram Gram Panchayat, while expressing dissatisfaction on the matter in which the Mandal Surveyor conducted survey, refused to consider the application. While the matter stood thus, the District Panchayat Officer, East Godavari District, Kakinada – 4th respondent herein, asked the 1st respondent to consider the matter once again vide Memo R.C.No.3165/A6/2008 dated 28.06.2008. It is also the case of the writ petitioner that in pursuance of the above said memo dated 28.06.2008, the Divisional Panchayat Officer – 3rd respondent herein, seems to have asked the Keesavaram Gram Panchayat to bring it to the notice of the Keesavaram Gram Panchayat. Simply basing on the said instructions, as if the same being mandatory directions to grant approval, the Keesavaram Gram Panchayat, without any survey, granted approval vide Resolution No.37 dated 06.08.2008 for construction of building in the land also where public latrines are existing. It is also however stated that earlier the father of the 5th respondent, one Sri Venkat Rao filed O.S.No.55/88 on the file of the Court of the District Munisif, Alamuru against the Gram Panchayat – 1st respondent and the said suit was dismissed for default on 13.06.1994. In such circumstances, the present writ petition had been filed. In the counter affidavit filed by the first respondent, it is stated that it is the fact that the building application was rejected by a Resolution No.186 dated 31.03.2008 as there are complaints against the 5th respondent with reference to the alleged encroachment and also in view of the pendency of survey by the Revenue Department. It is also a fact that a reply was given to the petitioner stating the above fact. However, on the application made by the Keesavaram Gram Panchayat to get the property of the 5th respondent and the Gram Panchayat surveyed and to fix boundaries, the Mandal Revenue Officer, vide his letter dated 22.05.2008 informed that there are no boundaries fixed in the FMB Sketch and therefore, it is not possible to fix the boundaries to the Gram Panchayat land. Thereafter, a letter was addressed to the Deputy Director of Survey and Settlement and the Deputy Director also informed that if there is no boundaries in FMB Sketch, it is not possible to fix the boundaries. Thereafter, a representation was made by the 5th respondent to the 4th respondent and the 4th respondent directed the Gram Panchayat to re-consider the building application of the 5th respondent and thus on re-consideration, the application of 5th respondent had been considered. Further, specific stand had been taken that the suit filed by the father of 5th respondent in O.S.No.55/88 is in relation to different property. The written instructions – Para wise remarks submitted by the learned Government Pleader for Panchayat Raj and Rural Development also are on similar lines. In the counter affidavit of Respondent No.5, the proceedings of the prior litigation, report filed by the Commissioner and the copy of plaint in O.S.No.55/88 are specified and also the plaint plan had been pointed out. In the counter affidavit filed in support of W.V.M.P.No.3426 of 2008, several facts have been specifically denied. The encroachment on the part of public land also had been denied. The issuance of notice by 1st respondent and the petitioner subjecting the application praying for building permission for construction of building also had been deferred to. Resolution No.186 dated 31.03.2008 had been specified. It is also averred that the application made by the petitioner for grant of building permission was deferred for the time being, as there is a dispute with regard to the boundary, by requesting the revenue authorities to fix boundaries. It is also averred in Para 6 of the counter affidavit that it is true that the matter was again taken by the Gram Panchayat and after the Mandal Surveyor’s report, the Gram Panchayat expressed their displeasure, with the matter in which the Mandal Surveyor conducted the survey. The 4th respondent addressed a letter to the 1st respondent to consider the matter once again by his memo dated 28.06.2008. Further specific stand had been taken that the respondent had been proceeding with the construction of building subject to the building approval in the land purchased by his father under registered sale deed on 12.03.1956 from one Late G.Jagannadharao who inherited the properties under a partition dated 18.04.1955, in an extent of 165 Sq.yards in Survey No.189/1 of Kethavaram Gram Panchayat. It is no doubt true that his father filed O.S.No.55/88, in respect of land measuring 0.80 Sq.yards of land situated in between Kamakshi Temple and his house site, which was being used by his father as cattle shed, for declaration and also for consequential permanent injunction against the 1st respondent. In fact, in the said suit, a Commissioner was appointed in I.A.No.233/88. The Commissioner found in his report that there is a land in between the Kamakshi Temple and his site, enabling the residents of that locality, to use the public latrines and his father, after some time, appears to have abandoned his claim in respect of 0.80 Sq.yards land, which is admittedly Panchayat land adjacent to the land belonging to him to an extent of 165 Sq.yards. The claim made in the suit is entirely different from the land in which he is proceeding with the construction of the building. The land in which he is proceeding with the construction, is his exclusive land and there is no claim over the said land from any quarter. As per advise of his elders and well- wishers, his father abandoned the claim since the suit land does not belong to his father. He filed photographs showing the exact topography where the construction is proceeding and also to appreciate that there is vacant land in between Kamakshi Temple and his land for ingress and egress of the residents of that locality for use of public latrines. Further, additional facts have also been narrated in the Paragraphs 9 and 10 of the counter affidavit filed by Respondent No.5. It is no doubt true that certain averments were made relating to the alternate remedy by an appeal. On a careful analysis of the whole factual matrix and the prior proceedings as well, a representation was made by other Ward members and the voters of the said Ward, especially, the women. It is also not in serious controversy that at relevant point of time, the 1st respondent was not inclined to grant permission for construction of building and it was rejected. Subsequent thereto, on the request for re-consideration by the District Panchayat Officer, East Godavari District, Kakinada, the permission was granted. No doubt, averments at length were made by the counsel on record relating to the verification or non-verification of the boundaries. It is needless to say that it is a factual controversy. No doubt, it is also stated that the prior suit is in relation to different property and the suit pending may not have anything to do with present litigation. Certain further submissions had been made relating to the availability of the effective alternate remedy. However, when it is being specified to be a Gramakantam in proceedings and when serious objections have been raised at a particular point of time, the permission was rejected. Subsequent thereto, may be, as directed by the District Panchayat Officer, East Godavari District, kakinada, while re-considering the issue of granting approval, the 1st respondent – Gram Panchayat is expected to be more cautious. The extent and the boundaries also had not been verified, as can be seen from the stand taken by the parties in this Writ Petition. The averments made in the prior suit, the report of the Commissioner and the contents there of also had been elaborated. In the light of the representation which is said to have been made by the women folk of certain Wards of Keesavaram Gram Panchayat and in view of the fact that these are all factual controversies, this Court is not inclined to go into the said questions inclusive of the aspect of the alleged encroachment and also aspects of fixation of boundaries as well. Let the 1st respondent re-consider the whole issue by putting the interested parties on notice within a period of one week from the date of receipt of this order. The entire exercise has to be completed within a period of two weeks from the date of receipt of this order. Till this exercise is made by the 1st respondent, status quo obtaining as on today, be maintained. Let the 1st respondent take appropriate decision in this regard by the earliest point of time, as specified supra. In the light of the peculiar facts and circumstances, it is needless to say that the approval already granted, would be subject to the re-consideration of the issue to be done by the 1st respondent after putting both the parties to notice. With the above directions, the Writ Petition is hereby disposed of. There shall be no order as to costs. _______________ (P.S.NARAYANA, J) September 22, 2009 Bvv