The Hon'ble Sri Justice C.V.Nagarjuna Reddy Writ Petition Nos.14232 & 16543 of 2008 Date: 12.09.2011 WP.No.14232 of 2008 Between: R.Bhaskar ..... Petitioner AND The Madanapalle Municipality, rep. by its Commissioner, Madanapalle, Chittoor District. .....Respondent Counsel for the Petitioner: Sri S.S.Bhatt Counsel for the Respondent: C.Venkata Yadav, SC for Municipal Corporation, Rayalaseema The Court made the following: Common Order: Since the issue raised in these two Writ Petitions is concerned with the common property, these two Writ Petitions are heard and being disposed of together. W.P.No.14232 of 2008 is filed for a Mandamus to declare the action of the respondent- Madanapalle Municipality, in not taking possession of the shopping complex situated in Survey No.222/3 of Digavakammapalli Village of Madanapalle Town, Chittoor District, in pursuance of decree and judgment, dated 04-02-2003, in A.S.No.3 of 1999, on the file of the learned Additional District Judge, Madanapalle, and not putting the same to public auction, as illegal. W.P.No.16543 of 2008 is filed for a Mandamus to declare the action of the respondents, in seeking to dispossess the petitioner from the mulgies forming part of an extent of Ac.0-17 cents situated in Survey No.222/3 of Kamapalli, Madanapalli Town, Chittoor District, as illegal and arbitrary. The petitioner in W.P.No.14232 of 2008 averred that the property in dispute belongs to the Madanapalle Municipality and that the title thereof was declared in a civil suit, which was affirmed vide judgment and decree, dated 04-02-2003, in A.S.No.3 of 1999, on the file of the Additional District Judge’s Court, Madanapalle, Chittoor District. It is his further case that in spite of the Municipality succeeding in the civil litigation, it is not taking any action against the person, who is in unauthorised occupation of the said property and who lost the civil litigation. According to the petitioner, if the said property is put to public auction, he will have an opportunity of participating in the auction and the Municipality will get revenue from out of such auction. The petitioner in W.P.No.16543 of 2008 is in possession of the property in dispute and she was a party to the civil litigation referred to above. It is her stand that the subject matter of civil dispute has nothing to do with the Ac.0-17 cents of the property, over which she has raised construction albeit without permission. It is her further case that an application for regularising the unauthorised construction has already been made and that the same is pending with the Madanapalle Municipality. Her grievance is that, without any manner of right, the officials of Madanapalle Municipality have been interfering with her possession of the said property and also threatening to demolish the structures already raised by her in respect of which the application seeking regularisation is pending. Separate counter-affidavits have been filed by the Commissioner of the Madanapalle Municipality in the two Writ Petitions. In the counter-affidavit filed in W.P.No.14232 of 2008, the Commissioner has inter alia stated that an extent of Ac.0-88 cents in Survey No.222/3 at Madanapalle Town is classified as Gramakantham Poramboke and that the same is vested with the Government, and being a local body, this respondent is the custodian. It is further stated that the eleven shop rooms, which were constructed by the petitioner in W.P.No.16543 of 2008, fall partly in Survey No.223/2 and partly in Survey No.222/3 of Kamapally; that one Gangarapu B Karunakar Reddy and 4 others filed OS.No.301 of 1998 against the husband of the petitioner in WP.No.16543 of 2008 and seven others for declaration of their right, title and possession over the suit schedule property shown as GHDJ in the plan; that in the said suit, the Madanapalle Municipality was added as defendant No.3. According to the plaintiffs in the said suit, the land in which the eleven shop rooms were constructed by husband of the petitioner in WP.No.16543 of 2008 fell to the share of defendant Nos.1 and 2 therein in a partition and that the said suit was decreed by the trial Court on 31- 12-1998. The appeal viz., A.S.No.2 of 1999, filed by the legal representatives of defendant Nos.1 and 2 therein including the petitioner in WP.No.16543 of 2008 and her children, was disposed of by the lower appellate Court whereby the judgment and decree, dated 04-02-2003, was set aside and the unsuccessful plaintiff was stated to have filed SA.No.571 of 2003 where under an order of status quo was secured on 13-05-2003, which was extended until further orders. The Commissioner further averred that the lower appellate Court has given a finding that the entire extent of Ac.0-88 cents is Gramakantam Poramboke. On the basis of this finding, the Commissioner has averred that the eleven shop rooms situated in the Ac.0-17 cents of land is part and parcel of Ac.0-88 cents, which was held to be Gramakantam Land. A similar counter-affidavit has been filed in W.P.No.16543 of 2008. In the reply-affidavit filed by the petitioner in W.P.No.16543 of 2008, it is stated that there were family disputes between the petitioner’s family and the family of Gangarapu D.Karunakar Reddy regarding certain properties; that OS.No.301 of 1998 was filed by the petitioner’s adversaries with respect to the passage to her cinema theatre; that the said suit was decreed; and that aggrieved thereby, the petitioner and others filed AS.No.2 of 1999 while the Municipality has filed AS.No.3 of 1999, both of which were clubbed together and were allowed by common judgment, dated 04-02-2003. It is further stated that aggrieved by the judgment in AS.No.3 of 1999, the petitioner filed a second appeal in this Court while Gangarapu B.Karunakar Reddy and others filed SA.Nos.571 and 1044 of 2003, which are pending. The petitioner asserted that the suit schedule property was confined only to the right of the plaintiffs therein to pathway and does not relate to Ac.0-17 cents of land over which the mulgies are constructed. As regards the mulgies constructed over the disputed land, it is the case of the petitioner that an application seeking regularisation was filed and that the same is pending. However, in the earlier counter-affidavit, filed by the Commissioner, there was no reference to the BPS application. A further counter- affidavit was filed by the Commissioner wherein it is inter alia stated that since the BPS application filed by the petitioner was misplaced, another BPS application bearing 1570, dated 11-11-2010, which was filed in the name of somebody else, was concocted in the name of the petitioner and an endorsement was given on 10-08-2010 by the Municipality directing the petitioner to comply with certain objections within 15 days. The said notice could not be served personally on the petitioner as per the report of the Town Planning chainman as the doors of the premises concerned were continuously locked and that thereafter, an endorsement made vide BPS.No.1570/G1/2008, dated 11-11-2000, was issued directing the petitioner to comply with the objections within 7 days and stating that failure to comply therewith will lead to automatic rejection of her application. The Commissioner further maintained that the said notice was again affixed on 06-12-2010 as the door of the petitioner’s premises was locked continuously. From the facts stated above, it is evident that there is a serious dispute as to the fact whether the disputed property forms part of judgment and decree in OS.No.301 of 1998 or not. While the petitioner in WP.No.16543 of 2008 asserts that it does not form part of the suit schedule property, it is the case of the respondents that it forms part thereof. It is not possible for this Court to render a conclusive finding on this disputed question of fact. At any rate, the two second appeals, filed by the plaintiffs in the suit against the finding of the lower appellate Court that the property is Grama Kantam land, are pending. Though the learned Counsel for the petitioner in WP.No.16543 of 2008 stated that the second appeal filed by his client is also pending, he is not in a position to give the details regarding its number and stage. It is for respondent No.2- Municipality to make a verification of this aspect. At any rate, since the second appeals filed by the plaintiffs are pending and an order of status quo appears to be in subsistence till disposal of the said second appeals, no finding, at this stage, can be rendered as to, (1) whether the entire extent of Ac.0-88 cents is a government porambok and consequently stood vested in the Municipality and (2) whether the Ac.0-17 cents of land, over which the petitioner in WP.No.16543 of 2008 has constructed eleven shop rooms forms part of the said extent. Therefore, at this stage, it is not possible for this Court to issue any direction with respect to taking possession of Ac.0-17 cents. Respondent No.2 is directed to examine this issue in detail and take appropriate action, if it emerges, after the disposal of the Second Appeals, that Ac.0-17 cents of land, over which the petitioner in WP.No.16543 of 2008 constructed eleven shop rooms, stands vested in the Municipality. As regards the regularisation application of the petitioner in WP.No.16543 of 2008, in view of the recent counter-affidavit filed by respondent No.2, the petitioner failed to make good the defects in the application and therefore, it stands rejected. It is the case of the petitioner that no notice was served on her calling upon her to remove the defects. The learned Counsel for the petitioner requested that an opportunity may be given to his client to remove the defects/deficiencies in her BPS application. Having regard to this submission and the fact that the notices were not served on the petitioner, this Court feels it appropriate that an opportunity be given to the petitioner to make good the defects/deficiencies, if any, in the BPS application as pointed out by respondent No.2. Accordingly, the petitioner is permitted to submit her objections to endorsement, dated 10-10-2010, which is served on her Counsel appearing in this Writ Petition within four weeks from today. On receipt of the objections, if any, respondent No.2 shall take appropriate decision, pass an order within four weeks thereafter and communicate the same to the petitioner’s Counsel viz., Sri I.Koti Reddy. Since there is a serious allegation against the petitioner about her avoiding the notice, it is appropriate that the order is served on her Counsel- Sri I.Koti Reddy, who agreed to receive the same on her behalf by giving out his address as “I.Koti Reddy, Advocate, D.No.16-11-781/6, Vijethashyamala Towers Moosarambagh, Malakpet, Hyderabad. Pin 500036.” Both the Writ Petitions are disposed of accordingly. As a sequel to dismissal of the Writ Petition, WPMP.No.31439 of 2011, filed by the petitioner for interim relief, is disposed of as infructuous. ______________________ (C.V.Nagarjuna Reddy, J) 12th September, 2011 LUR