HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.29699 of 2011 Date: November 23, 2011 Between: 1. P. Nagesh & 3 others … Petitioners and 1. The District Collector (Panchayat Wing), Kurnool, Kurnool District & 4 others. … Respondents * * * HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.29699 of 2011 O R D E R: With the consent of Sri A.V. Sivaiah, learned counsel appearing for the petitioners and Sri M. Subba Reddy, learned counsel appearing for the contesting respondent (5th respondent herein), this writ petition is being disposed of at the stage of admission. 2. The petitioners approached this Court by filing this writ petition complaining that the 5th respondent has made a construction in the middle of the road situated in 16th Ward, Maddemmabavi Street, Maddikera village. It is their case that there has been a 28 feet width road from East to West which is vested in the Gram Panchayat ever since 1961. The 5th respondent herein encroached the said road and has obstructed the ingress and egress available to the petitioners to their houses and the residents of the 16th Ward by making an unauthorised construction. It is stated that earlier they filed a writ petition W.P. No.26983 of 2006 challenging the inaction of the official respondents in removing the said construction and the said writ petition is said to be pending. There is an interim order passed in the said writ petition directing the 5th respondent to proceed with the construction according to the sanction plan and if any violation is made, the Gram Panchayat could take appropriate steps for demolition in accordance with law. 3. Be that as it may, on the representation of the petitioners and other villagers, the District Panchayat Officer, Kurnool, the second respondent herein, caused an enquiry through the Divisional Panchayat Officer, Adoni (the 3rd respondent herein). The 3rd respondent submitted a report to the second respondent stating that as per Gram Panchayat records the 5th respondent occupied the panchayat land and has made construction basing on Resolution passed on 03.01.2007 by ignoring the earlier resolution of the Gram Panchayat dated 28.6.2002. He thus confirmed that the land occupied by the 5th respondent is Gram Panchayat road. Consequently, in pursuance of the aforesaid report, the District Collector, Kurnool, passed orders dated 01.10.2011 directing the Panchayat Secretary to remove the construction after due notice to the 5th respondent. It is therefore the case of the petitioners that the construction made by the 5th respondent is objectionable and the same is liable to be removed. 4. The 5th respondent filed counter denying that he has encroached the public road. According to him, he has purchased private land from rightful owners and that he has made construction only after obtaining due permission from the Gram Panchayat. The 5th respondent has placed reliance on the judgment dated 27th June 2003 passed in O.S. No.146 of 2002 on the file of the Junior Civil Judge, Pattikonda. He therefore asserts that the land in question being the private land, the constructions made in the subject land are not liable to be demolished. 5. From the aforesaid contentions it is evident that there is a serious dispute as to whether the land under occupation of the 5th respondent belongs to the Gram Panchayat and whether it is a public road. No doubt, the 5th respondent obtained injunction in the aforesaid suit, but the said suit was only an injunction suit and therefore the same cannot be treated as a suit for declaration of rights of the parties. Therefore it is always permissible for respondents 1 to 4, who are statutory authorities, to conduct an enquiry to ascertain whether public properties have been encroached. In that view of the matter, Sri M. Subba Reddy, learned counsel for the 5th respondent submits that even though the third respondent has submitted a report identifying the property as public road, the petitioners were not put to notice. They have no opportunity to contest the said report. The counsel therefore submits that if an enquiry is directed to be conducted afresh in the presence of the 5th respondent, he would be in a position to defend the case by establishing that the land occupied by him is not a public road. 6. It is true that perusal of the report of the third respondent and the orders of the District Collector dated 01.10.2011 passed pursuant to the complaint of the petitioners, the same does not appear to have been passed after due notice to the 5th respondent. In the circumstances, I agree with the contention of the 5th respondent that before undertaking any demolition, the 5th respondent is entitled for due notice. 7. Learned counsel for the petitioners Sri A.V. Sivaiah, fairly submits that he has no objection if a fresh enquiry is directed to be conducted in the presence of the petitioners and the 5th respondent and accordingly the second respondent be directed to take appropriate decision after due notice to the petitioners and the 5th respondent. 8. In the light of the aforesaid rival contentions and having regard to the consent of both the learned counsel, I deem it appropriate to dispose of the writ petition directing the District Panchayat Officer, Kurnool, the second respondent herein, to cause an enquiry including physical survey of the disputed land after due notice to the petitioners and the 5th respondent and thereafter take appropriate decision in accordance with law. Since the dispute has been pending for a considerable length of time, the second respondent shall conclude the enquiry and pass appropriate orders as expeditiously as possible, preferably, within a period of six weeks from the date of receipt of a copy of this order. Until orders are passed, the order of the District Collector dated 01.10.2011 shall be kept in abeyance. No order as to costs. _________________ NOUSHAD ALI, J Date: November 23, 2011. BSB