Allowed

T.Vijay Kumar, S/o. T.Bali Reddy, v. The State of Andhra Pradesh

Andhra Pradesh HC15 Apr 2024WP/18284/2017

Case brief

AI extract

What is this about?

The High Court held that the Municipal Corporation violated the final order in an earlier writ petition by laying a road across the petitioners' properties. Relying on Article 300A and the principle of res judicata, the Court directed the restoration of the land to the petitioners and dismissed the impleading petition.

What did the court decide?

Municipal authorities directed to restore the land to the petitioners forthwith as per the order in W.P.No.14998 of 2005.

T.Vijay Kumar, S/o. T.Bali Reddy, Vs The… — Municipal and Town Planning | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction)

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TUESDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

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WRIT PETITION NO: 18284 OF 2017

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Between:

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T.Vijay Kumar, S/o. T.Bali Reddy, aged about 59 years, Occ: Chartered Accountant. R/o H.No.51, Mehdipatnam Colony, Hyderabad.

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T.Naresh Kumar, S/o. T.Bali Reddy, aged about 56 years, Occ: Business. R/o. H.No.51, Mehdipatnam Colony, Hyderabad.

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...PETITIONERS

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AND

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The State of Andhra Pradesh, Rep. by its Principal Secretary, Municipal Administration, Secretariat Buildings, Velagapudi village,^Guntur District.

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Municipal Corporation of Anantapuram, Anantapuram, rep.by its Commissioner.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ of Mandamus, or any other appropriate writ, order or direction, declaring the action of the 2'"'' respondent corporation in laying road across our Plot bearing No 23 and 24 on the Southern side in Sy. NOS.59-A & 59-2-C in Ward No:6 Anantapur, Anantapur District, Andhra Pradesh, violating the orders dated 21-01-2013 passed by this Hon'ble Court in W.P.No.14998/2005, as illegal and arbitrary.

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I.A. NO: 1 OF 2017rWPMP. NO: 22313 OF 20171

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to grant interim direction directing the 2"*^ respondent corporation to remove the road laid on the Plots bearing No. 23 and 24 on the Southern side in Sy.Nos.59-A & 59-2-C in Ward No. 6 Anantapur, Anantapur District, Andhra Pradesh which belongs to the petitioners and

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lay boundary stones at their places as per the measurements contained In the layout appended to the order dated 21-012013 passed in ■ Vy.P.No. 14998/2005 pending disposal of the Writ Petition before this V Hbn'ble Court.

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X- if

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Counsel for the Petitioners : SRI SREEKANTH REDDY AMBATI

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Counsel for the Respondent No.1: GP FOR MUNCIPAL ADMN AND URBAN DEVELOPMENT

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Counsel for the Respondent No.2 : SRI SURESH KUMAR REDDY KALAVA, SC FOR MUNICIPALITY

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The Court made the following: ORDER

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

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HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

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WRIT PETITION No.18284 of 2017

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T. Vijay Kumar, S/o T. Bali Reddy, aged about 59 years, Occ; Chartered Accountant, R/o H.No.51, Mehdipatnam Colony, Hyderabad and another.

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... Petitioners

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Versus

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The State of Andhra Pradesh, Rep. by its Principal Secretary Municipal Administration, Secretariat Buildings, Velagapudi Village, Guntur District and another.

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... Respondents Counsel for the petitioners ; Sri Sreekanth Reddy Ambati Counsel for respondents ; Government Pleader for Municipal Administration and Urban Development; and Sri Suresh Kumar Reddy Kalava, standing counsel.

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:: ORDER::

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Finality of the judgments puts an end to the judicial process. Finality to judicial decision, popularly known^asdoctrine of res judicata in Indian parlance has been recognized^under Section 11 of the code of Civil procedure. The doctrine of Res Judicata is based on three Roman Maxims, which are as under:

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Nemo debet lis vaxari pro eaderm causa (no man should be vexed twice for the same cause);

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Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation; and

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Re judicata pro veritate occipitur (a judicial decision must be accepted as correct).

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This writ petition, under Article 226 of the Constitution of India, is filed to declare the action of respondent No.2Corporation, in laying road across plot Nos.23 and 24 on the Southern side in survey Nos.59-A and 59-2-C in Ward No.6, Anantapur, Anantapur District, Andhra Pradesh, violating the order, dated 21.01.2013 passed in W.P.No.14998 of 2005, as illegal and arbitrary.

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Petitioners filed W.P.No.14998 of 2005 to declare the action of respondents herein, in encroaching petitioners’ plot Nos.23 and 24 admeasuring Ac.0-08 74 guntas and Ac.0-07^% guntas respectively, in survey Nos.59-2A and 59 2c respectively in Ward No.6 of Ananthapur Municipality without allotting^some other land of equal value towards compensation, as illegal and arbitrary. The said writ petition was disposed of and^theorderin the writ petition became final.

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The brief facts of the case are that the petitioners’^mother Smt. T. Janakamm purchased Ac.0-08 >4 cents and Ac.0-07^%

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cents of land in plot Nos.23 and 24 respectively in survey Nos.592A and 59-2C in ward No.6 of Anantapur Municipality^undertwo registered sale deeds dated 09.01.1984. After the death of petitioners mother, petitioners got their names mutated in the municipal records. While so, the municipality laid^cementroad across their plots by encroaching upon the private lands. Therefore, petitioners made representation on 31.05.2003 requesting either for restoration of the encroached land or allotment of any alternative land of the municipality of equal value, as compensation. Petitioners made repeated representations. While that being so, the municipal authorities constructed a drain through plot No.24. The Regional Director also clarified the encroachment in plot No.24 by the^roadand recommended for exchange of site admeasuring 704 square^feet. A letter was also addressed to the State Government seeking permission for such an exchange. However, no further action was initiated. In those circumstances, petitioners filed W.P.No.14998 of 2005.

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The Commissioner & Director, Municipal Administration, Government of Andhra Pradesh and the Commissioner of Anantapur Municipal Corporation filed respective counters in W.P.No.14998 of 2005. In the counter filed by the Commissioner

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of Anantapur Municipal Corporation, it was contended, inter alia, that plot No.24 is situated in the approved layout,^and it was not fenced: that after representation dated 31.05.2003, the Municipality, on a survey found that drain is flowing^ontheEastof plot No.24. Owners of plot Nos.25 to 27 and Mosque^trusttook advantage and trespassed into the property of the petitioners. The road width was measured by the petitioners from the cut stone fencing of crescent school due to which the North-South measurement of 60 feet is overlapping in portion of the C.C. road, which is in municipal reserved open site. Pursuant to the order dated 21.04.2006, passed in W.P.M.P.No.19056 of 2005, a survey was conducted on 25.02.2010, in the presence of the petitioners. Petitioners’ plot Nos. 23 and 24 were measured and peg marked stones were fixed on the entire boundary line, in the presence of the petitioners with the measurements 88 feet on the North, 103 feet on the South, 66 feet on the East and 84 feet on the West giving added advantage of Ac.0-04 cents to the petitioners. The said change was due to the surrounding structures raised by the owners of plot Nos.25 to 27. 6. The W.P.No. 14998 of 2005 was disposed of by order, dated 21.01.2013, the operative portion of which reads thus:

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“In the result, plots 23 and 24 in survey Nos.59-2A^and59- 2C in ward No.6 of Anatapur Municipal Corporation with^the measurements East to West on North of 88 feet, East to West on South of 103 feet. North to South on East of 66 feet and North to South on West of 84 feet as disclosed by the survey dated 25.02.2010 and as shown in the layout plan of L.P.No. 193/82, consequently prepared in file No.2924/82/D5 of the 3^^ respondent, shall remain uninterfered with by the 3''' respondent so as to enable the petitioners to possess^and enjoy the same with absolute rights.”

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Thereafter, petitioners filed C.C.No.939 of 2015 against^the concerned officials, complaining violation of order dated 21.01.2013. The said contempt case is pending. In fact, in the contempt case, learned single judge passed orders from^timeto time to implement the order in the writ petition, Without implementing the order, authorities of 2^^ respondent^furtherlaid road on the Southern side of plots No 23 and 24.

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Petitioners filed the present writ petition to declare the action of the respondents in laying road across the subject plots, on the Southern side, pursuant to the order passed in W.P.No.14998 of 2005. In the affidavit, it was contended, inter alia, that inspite of the order, dated 21.01.2013 passed in W.P.No.14998 of 2005, again on 27.05.2015, respondent^No.2 corporation, started laying cement road across petitioners’ plots

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to help the neighboring school owner who, in fact,^{encroachedthe} municipal road illegally. In C.C.No.939 of 2015, the then Commissioner/contemnor filed counter admitting that the Superintending Engineer and the other officers, without verifying the records and following due process, laid the said road, violating the Court’s order, dated 21.01.2013. Since the remedy in the contempt case was to punish the contemnors, the present writ petition is filed to direct the respondents to remove the cement road on the Southern part of plot Nos. 23 and^24.

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Counter affidavit was filed by Commissioner of respondent No.2. It was contended, inter alia, that erstwhile Ananthapuramu Municipality did not lay the cement road and drainage^acrossthe plots owned by the writ petitioners. On earlier occasion survey was conducted on 25.02.2010 pursuant to the interim directions of the Court. At the time of said survey, no notice was served on the neighboring owners of plot Nos.25 to 27, whose plots are situated on the Southern side of the 30 feet earmarked approved layout road. The neighboring plot owner, by name Shakeel^Shafi filed implead petition in the present writ petition by enclosing the sale deeds of petitioners’ plot Nos.23 and 24, wherein there was mention about length and width of those two plots. It was stated that on earlier occasion, Corporation filed counter affidavit

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pursuant to the survey, by mentioning boundaries of plots owned by the petitioners, which are not tallying with the length and width shown in the sale deeds. Later the neighboring owners^raiseda dispute regarding the measurements of the plots. At request, re survey was conducted in the presence of both the parties^interms of sale deeds. The layout appended to the W.P.No.14998^of2005 is not available in the corporation. Respondent No.2-corporation laid cement road in the earmarked portion of approved layout, 30’-0” width road in between the plots owned by the petitioners as well as owners of plot Nos.25 to 27. It was specifically^denied about the removal of peg markings while laying road. As per the survey, towards East some part of the petitioners land i.e. plot No.24 is affected by Municipal Drainage and some part is encroached by Mosque premises. After conducting joint survey, as per the interim orders in C.C.No.939 of 2015, it came to light that the width of the road shown in the sketch submitted by the petitioners, which is appended to the court’s order in W.P.No.14998 of 2005, is lO’-O on Southern side of their plots. However, it is 30’-0” existing on ground and is earmarked in approved L.P.No.193/82. The counters filed in W.P.No.14998 of 2005 and C.C.No.939 of 2015 are without verifying the sale deeds. Eventually prayed to dismiss the writ petition.

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A neighboring plot owner filed an impleading petition.

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The points for consideration in the writ petition are:

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Whether the petitioners are entitled to the relief sought for?

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Whether proposed implead petitioner is necessary party to the writ petition?

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As seen from the narration of events supra, the order passed in W.P.No. 14998 of 2005 became final. In the contempt

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case, the counter/reply affidavit filed by the learned Commissioner, makes the thing more than discernable that road was laid in the petitioners’ plot No. 23 and 24 on Southern side, contrary to the order passed.

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It is pertinent to mention here that the present Commissioner filed counter with different averments. It is not the case of the learned Commissioner, who filed counter affidavit i n the present writ petition that a fraud was played earlier and hence the counter affidavit and the order in earlier writ petition need not be relied upon. It is also not out of place to mention here that in fact, in the earlier writ petition survey was conducted and basing on the survey an order was passed and the said order became

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final.

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Relevant portion in the counter affidavit filed by^thethen Municipal Commissioner in W.P.No.14998 of 2005 is here^with extracted:

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“ after approval of layout in L.P.No. 193/82, the layout^owner has not formed 30’-0 wide proposed road which is located on southern side of the petitioners plot. Further the petitioner has left over their site without protection^wallor fencing or plot stones. The action of petitioners was^caused an advantage to the plot owners bearing No. 25, 26^&27 and mosque trust to trespass. At present crescent school^is existing in the said plots. The owner of the said school has constructed a cut stone fencing to his north side boundary including a portion of unformed 30’-0 road margin. After that the petitioner has measured the road width from the cut stone fencing of the crescent school”

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In C.C.No. 939 of 2015 in W.P.No. 14998 of 2005 counter affidavit was filed by contemnor, the Commissioner of Municipal Corporation.

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“3.... It is submitted that after verifying the records, I came to know that my predecessor i e, the present Superintendent Engineer who was also the then Commissioner (FAC) took the decision to lay the road

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without verifying the records and orders made in writ petition. The regular practice that should be adhered by the Engineering Department before proposing and executing^a road in the Municipal Corporation is that they should^refer the file to Town Planning Wing for their clearance and verification about any objections and orders of Hon’ble Courts. But in the present case the Superintendent Engineer who was also the then Commissioner (FAC) has ignored the remarks of surveyor and had not got clearance from the Assistant City Planner head of Town Planning Wing in the Corporation (copies of note file enclosed). It is submitted that as a matter of fact, I have already^calledfor explanation from the Superintendent Engineer vide Momo No. 1575/C1/2015 dated 23-6-2015 and advised them to rectify the mistake and restore the subject site area. Even after lapse of 15 days after issuance of Memo, the Superintendent Engineer has not taken any action for^the reasons best known to him. It is presumed that he colluded with the other parties in the court case and executed the work of laying CC Road in the subject site area against^the existing orders of the Hon’ble High Court. The Irregular Action of the Superintendet Engineer and his Executive staff in laying the CC Road in the disputed subject^site area against the orders of the Court is reported to the Government vide my Letter No.3348/2009-G1,AMC, dated 04-07.2015 (copy enclosed) for taking Disciplinary^Action against 1. Sri J. Srinivasulu, Superintendent Engineer^and the then Commissioner FAC for his Administrative and Technical Sanctions on 04-9-2014, 2. G.Nagamohan, EE,

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who has issued work order in the name another EE Sri H.Jadhav on 09-05-2015 without bringing to the knowledge and approval of the present commissioner and Smt. Dakshayani A.E who has executed the work in spite protest from applicants in the Court case. ... She has hastily completed the road within two days in my absence in town...”

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Thus, the relevant portions of the counter affidavits filed in earlier writ petition and contempt case, manifest that the authorities, even without following procedure, pursuant to the order of the Court, in collusion with other parties, laid the road hurriedly. The third party referred to in the counter is none other than implead petitioner.

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Third party, neighbor, who encroached public road and constructed school, on the alleged road, as per the layout is now opposing and creating every problem. Pending this writ petition another survey was conducted and a report was filed. A perusal of said report would discern that third party encroached 16 feet on one side and 6 feet on other side.

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It is pertinent to mention here that the counter affidavit filed in the present writ petition would manifest that CC road was laid in 30 feet as per layout i.e on Southern side of petitioners’ plots and Northern side of plots 25 etc.,. However, as seen from the

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sketch of Mandal Surveyor filed along with memo dated 12.02.2024, it would disclose that proposed implead petitioner encroached Northen side road as indicated supra and it seems, an encroacher on a public road is dictating terms and the Municipal Authorities are acting to his tunes. Of course,^thiscourt is conscious that in the absence of a third party,^noadverse remarks would be passed, and hence this court is restraining itself from making any comments qua the conduct of proposed party. This Court is constrained to make the observations,^inview of the averments counter affidavit filed in the present writ petition, without referring to the averments in earlier counter affidavits. It is very unfortune that in the recent past a new trend has developed in non-filing of relevant documents along with the counter affidavit, inspite of referring to the contents in the counter affidavit. Such practice is to be curbed.

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In view of the discussion made supra, it is clear that pursuant to the order passed in W.P.No. 14998 of 2005, road was laid hurriedly on the Southern side of plot Nos 23 and 24, by encroaching the same, only to frustrate the order of this court.

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As referred supra, third party filed implead petition.^The contention of learned senior counsel is that proposed party was

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impleaded as one of the parties to contempt and hence he may be impleaded in the writ petition, is meritless. In the contempt case, in those circumstances, since the proposed party is objecting implementation he came on record as party respondent/contemnor.

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In view of the relief sought in this writ petition^andtheorder passed in W.P.No.14998 of 2005, since there is no adversarial interest, the proposed party is not necessary party^to the writ petition. Hence, W.P.M.P.No. 42516 of 2017, is hereby dismissed.

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The counter affidavit filed by the Commissioner in contempt case makes it clear that road was laid in petitioners land in violation of the order and hence, the respondent authority^must either pay compensation or restore the land as per^theordersin W.P.No. 14998 of 2005.

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This Court is cautious that a writ of Mandamus is an extraordinary remedy that should be exercised with caution and discretion. The Court has to be satisfied that the petitioner has a clear legal right that has been infringed, and that the respondent has a corresponding legal duty to perform. The Court also

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normally shall not shut its eye when the local authorities committed illegality and acted arbitrarily.

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It is settled principle of law that right to property though not fundamental right, is still a Constitutional right^{underArticle300A} of the Constitution of India and also human right.^{InHariKrishna} Mandir Trust Vs State of Maharashtra^ the supreme court^has

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observed that,

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... The right to property may not be a fundamental right any longer, but it. is still a constitutional right under Article 300-A and a human right. In view of its mandate , no person is to be deprived of his property save by the authority of law.

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Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others^; Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr^; Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others'^, the State possesses the power^totake or control the property of the owner for the benefit of public.

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' (2020) 9 see 356 ' (2006) 2 sec 545, 574 (para 69) ' (1995) Suppl. 1 see 596 (1982) 1 see 39

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When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this^Court in Grinar Traders vs State of Maharastra and others^

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In Vidya Devi Vs State of Himachal Pradesh®, Supreme court has observed that:

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12.2. The right to property ceased to be a fundamental right by the Constitution ( Forty - Fourth Amendment) Act, 1978, however, it continued to be a human right in^awelfare state, and a constitutional right under Article 300-A^ofthe Constitution. Article 300 A provides that no person^shallbe deprived of his property save by authority of law.^Thestate cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A , can be inferred in that Article.

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12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. 26. In the case at hand, as discussed supra, road was laid^on Southern side of petitioners’ plot Nos. 23 and 24, by encroaching the same, pursuant to the order passed in W.P.No. 14998 of

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' (2007) 7 see 555 (paras 55 and 56) ^ (2020) 2 see 569,

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2005, and hence respondent No.2 authority must restore the same to the petitioners.

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As stated above, once an order became final i.e. order in W.P.No. 14998 of 2005, driving the petitioners again and again to the other litigation, in the considered opinion of this court, is a grave irregularity committed by respondent No.2 authorities. Hence the municipal authorities are directed to restore the land to the petitioners, as per the order in W.P.No. 14998 of 2005, forthwith.

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