Smt. M. Samrajyalaxmi v. The Gram Panchayat, Kollapur & Anr.

This writ petition is filed for a Certiorari to quash the proceedings dated 26.06.2006 of respondent No.1. I have heard Sri V.V.N. Narasimham, the learned counsel for the petitioner and the learned Assistant Government Pleader for Panchayat Raj appearing for respondent No.2. The petitioner constructed a house on the premises bearing No.2-19-95. According to her, on her application, respondent No.1 has granted permission, vide proceedings dated 20.03.2006 for the said construction. When the petitioner’s neighbour filed O.S.No.253 of 2005 in the Court of the Junior Civil Judge, Kollapur, for permanent injunction by raising the plea that the petitioner has constructed steps by encroaching their area, the petitioner contested the said suit and also an application for temporary injunction filed by his neighbour. By order dated 13.02.2006, the ex parte interim order granted against the petitioner was stated to have been vacated by the civil Court. Respondent No.2, vide his proceedings dated 19.06.2006, while placing Sri B. Narayana, Panchayat Secretary, Gram Panchayat Kollapur, under suspension for disobedience of the orders passed by the higher authorities, directed the incharge Panchayat Secretary to take action against the illegal construction of stair case by the petitioner in terms of Section 98 (1) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short ‘the Act’). As a sequel to the said proceedings, respondent No.1 has issued the impugned proceedings dated

26.06.2006, whereby the petitioner was called upon to remove the steps stated to have been constructed over the land belonging to the Panchayat within three days at her own expenses, failing which respondent No.1 will remove the steps and recover the expenses from the petitioner. The said proceedings are assailed in this writ petition. No counter-affidavits have been filed on behalf of either of the respondents. At the hearing, the learned counsel for the petitioner submitted that the impugned action is initiated by respondent No.1 at the behest of the neighbour of the petitioner, who was unsuccessful in the civil proceedings initiated by him. He has further stated that the impugned proceedings which are styled as notice are in the nature of a final order and that before concluding that the petitioner has constructed steps in the land belonging to the gram panchayat, respondent No.1 ought to have given an opportunity by way of prior notice to the petitioner to explain his case.

The learned counsel further submitted that failure to follow this procedure constitutes violation of the principles of natural justice. The learned Assistant Government Pleader, on instructions, submitted that as the petitioner constructed the steps on the property belonging to the gram panchayat, the impugned action was initiated. Section 98(1) of the Act empowers the executive authority to require the owner or occupier of any building to remove or alter any projection, encroachment or obstruction other than a door, gate, bar or ground floor window, situated against or in front of such building and in or over any public road vested in such gram panchayat. Under Section 98(2) of the Act, if the owner or occupier of the building proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any local authority duly empowered in that behalf, and that the period, if any, for which the permission or licence is valid has not expired, the gram panchayat shall pay reasonable compensation to every person who suffers damages by the removal or alteration of the same.

The above reproduced provision would show that the same will apply if a construction was made over a public road vested in the gram panchayat. Even if such construction was made with the permission or the same was in existence for a period which was sufficient for vesting of prescriptive title, the person who suffered damages on account of removal or alteration is entitled for compensation. In the instance case, the petitioner is disputing the claim of the gram panchayat that the construction of staircase was made over the property vested in the gram panchayat. Therefore, before taking recourse to this provision, it is obligatory on the part of respondent No.1 to issue a notice and if after considering the explanation, if any, submitted by the petitioner, it comes to the conclusion that the construction was made over the gram panchayat land or on a public road, it is entitled to remove the encroachment by following the abovementioned provision.

The impugned proceedings do not indicate that a prior notice was given to the petitioner and respondent No.1 has come to unilateral conclusion that the structure was raised on the gram panchayat land. In my opinion, the impugned notice cannot be sustained as the same was not preceded by a notice and an opportunity to the petitioner to establish that the structure was not raised over the gram panchayat land. For the aforementioned reasons, the impugned notice dated