Writ Petition No. 40052 of 2022 · Andhra Pradesh High Court

- Heard Sri Vivekananda Virupaksha, learned counsel for the petitioner, learned Assistant Government Pleader for Municipal Administration accepted notice for the 1st respondent and Sri N.Ranga Reddy, learned Standing Counsel for the 2nd respondent Municipality.

With the consent of the parties counsels, the writ petition is being decided at this stage.

This writ petition under Article 226 of the Constitution of India has been filed for the following relief:-

It is therefore prayed that this Hon’ble Court may be pleased to issue a Writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondents herein more particularly the action of the Respondent No.2 herein in issuing the notice vide Notice No. /2022/WPRS dated 08.11.2022 under Sections 189, 192, 193 and 194 of the Andhra Pradesh Municipalities Act, 1965, thereby requiring the Petitioner to remove the alleged encroachments in Sy. No.80/A in Vengalapuram Revenue Village, Adoni Municipality and in interfering with the possession and enjoyment of the Petitioner over an extent of 3 ½ cents in Sy. No.79/1A, bearing Door No.21/147/5/1 and an extent of 3 ½ cents in Sy. No.89/1 of Vengalapuram Revenue Village, Adoni Municipality as being illegal, arbitrary, irrational, violative of the provisions of the Andhra Pradesh Municipalities Act, 1965 and Articles 14, 19(1)(g), 21 2 and 300A of the Constitution of India and consequently direct the Respondents herein not to interfere with the Petitioner’s possession and occupation of the Property over an extent of 3 ½ cents in Sy. No.79/1A, bearing Door No.21/147/5/1 and an extent of 3 ½ cents in Sy. No.89 of Vengalapuram Revenue Village, Adoni Municipality and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.

Sri Vivekananda Virupaksha, learned counsel for the petitioner submits that the 2nd respondent has issued notice No. /2022/WPRS, dated 08.11.2022, directing the petitioner to remove his building allegedly constructed by encroaching the open space in the layout in Sy.No.80/A in Vengalapuram Revenue Village, Adoni Municipality to an extent of 25 x 41 ft/cents.

The petitioner has submitted the reply dated 16.11.2022, interalia stating that the petitioner constructed the building in Survey No.89 after obtaining the building permission from the Municipality and the building is not in Survey No.80/A as mentioned in the notice.

Learned counsel for petitioner further submits that the notice is bad as also for the reason that it has been issued under Sections 189, 192, 193 and 194 of the Andhra Pradesh Municipalities Act, 1965 which are not applicable. 3

Sri N.Ranga Reddy, leaned Standing Counsel submits that the notice has been given as the petitioner raised unauthorized construction in Survey No.80/A without any permission. He further submits that the petitioner has already filed reply, disputing the Survey Number as also the construction being unauthorized and he should have waited for the decision of the competent authority/2nd respondent/The Commissioner of the Municipality, who shall consider the petitioner’s reply and pass appropriate orders in accordance with law. With respect to the submission of the learned counsel for the petitioner that the provisions under which notice has been issued, he submits that it is open to him to raise such objections before the 2nd respondent.

I have considered the submissions advanced by the learned counsels for the parties and perused the material on record.

In view of the submissions advanced, this Court is of the considered view that the question as to whether the petitioner’s building is situated over Survey No.80/A or 89 and whether the building is constructed by making encroachment or otherwise, are questions of fact, which at the first instance should be determined by the 2nd respondent, considering the petitioner’s reply submitted 4 pursuant to the notice and such questions at this stage cannot be determined in the exercise of writ jurisdiction under Article 226 of the Constitution of India. The petitioner has already filed the reply/explanation. To meet the interest of justice, this writ petition is therefore disposed of finally with the consent of learned counsels with the following directions: I. The Commissioner of the 2nd respondent, Adoni Municipality, shall consider the petitioner’s reply dated

16.11.2022, Ex.P2, and pass appropriate reasoned orders in accordance with law. II. For determination as to whether the petitioner’s building in question is situated on Survey No.80/A or 89, if the exercise for demarcation or survey is required to be undertaken, the same exercise shall also be done, with due information to the petitioner, as early as expedient. III. The petitioner shall cooperate in demarcation/survey exercise if undertaken. IV. The entire exercise shall be completed including passing of the orders as issued, preferably within a period of eight weeks from today. 5 V. Till the final decision is taken or for a period of eight weeks, whichever is earlier, no coercive action shall be taken pursuant to the impugned notice.

No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed. ____________________ RAVI NATH TILHARI, J Date: 12.12.2022 Note: furnish CC by 16.12.2022 b/o. SJ FFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKKK KKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGGG GGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD 6 THE HON’BLE SRI JUSTICE RAVI NATH TILHARI WRIT PETITION No.40052 of 2022 Date: 12.12.2022 78