Telangana High Court
V. Ashok Reddy vs Boduppal Municipality on 22 November, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION Nos.34362 and 41777 of 2022
O R D E R:
Since both these writ petitions arise out of the common issue, they are being disposed of by this common order;
W.P.No.34362 of 2022 is filed with the following prayer;
"to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the Orders in Lr. No. 1294/TPS/BMC/2022 dt 26-08-2022 passed by the 2nd respondent in directing the petitioner to remove the compound wall in respect of property bearing H.No 9-162 in Sy.No.155/AA, 156/AA and 157/Part situated at Laxminagar Colony Boduppal, Medchal Malkajgiri District within three days without considering the explanation submitted by the petitioner as illegal, arbitrary, contrary to Telangana Municipalities Act 2021 and violation of Article 14 and 300-A of Constitution of India and consequently set aside the same"
W.P.No.41777 of 2022 is filed with the following prayer;
"to issue a writ or order or direction more particularly one in the nature of writ of mandamus directing Respondent nos.1 to 5 to remove all or any illegal structures made by Respondent Nos.6 to 12 in the open spaces earmarked for the septic tank, pump house and road belonging to the Lakshmi Nagar Colony as per the Revised Final Layout Permit No.7003 Lr. No.7003/MP2/HUDA/90 DT.17-03-1993 situated in Survey Nos.143, 153, 154 and 16(part) forthwith and consequently direct Respondent nos.1 to 5 to cause enquiry on the alleged permission given to Respondent Nos.6 to 12 to construct the houses on the common areas earmarked for the said colony and further direct respondents Nos.1 to 5 to cancel the house construction permissions to respondents Nos. 6 to 12 as per the Notice Lr.Nos.103, 109, 108, 97, 98 and 99/BMC/TP/2021 Dt.11-11-2021 respectively to R6 to R12 as they encroached the open lands earmarked for common amenities belonging to Laxmi Nagar Colony".2
LK, J W.P.Nos.34362 and 41777 of 2022
2. Learned counsel for the petitioner Mr. T. Rajinikanth Reddy in W.P.No.34362 of 2022 submits that when the respondent Municipality has tried to demolish the building without following due process of law, the petitioner has filed W.P.No.28579 of 2022 and the same was allowed by order dated 08-07-2022 setting aside the notice dated 29-10-2021 and directed the respondents to pass appropriate orders within a period of three weeks from the date of receipt of a copy of the said order by considering the explanation submitted by petitioner on 05-11-2021 and the other material placed by him. He submits that thereafter, the impugned proceedings dated 26-08-2022 were passed, whereby the respondent Municipality has come to the conclusion that the petitioner has constructed a compound wall by encroaching the portion of open space of Lakshmi Nagar Colony of west side length 100'-00', 14' deep at south end and 2'-3' north end. He submits that for coming to such a conclusion, the respondents have not conducted any inspection in the presence of the petitioner and no notice was given to him.
3. On 01-09-2022, when the matter came up for admission, it is submitted by the learned Standing Counsel that the survey is going to be taken up and the matter was directed to be listed on 15-09-2022 in motion list and till then, the respondents are directed not to take any coercive steps and when the matter was listed on 19-09-2022, it was admitted and the said interim order is extended until further orders. 3
LK, J W.P.Nos.34362 and 41777 of 2022
4. W.P.No.4177 of 2022 is filed by the residents of Lakshmi Nagar Colony questioning the inaction of the respondents.
5. Learned Standing Counsel for the respondent Municipality Mr. B. Jagan Madhav Rao submits that in view of the orders passed in W.P.No.34362 of 2022, the respondent Municipality could not take further action on the said illegal constructions. He submits that the respondent Municipality has inspected the site and as per the same, they came to conclusion that the petitioner has encroached upon the open space and the road belongs to Lakshmi Nagar Colony.
6. According to the petitioner in W.P.No.41777 of 2022 and the respondent Municipality, the petitioner in W.P.No.34362 of 2022 has encroached upon the land. It is the case of the petitioner in W.P.No.34362 of 2022 that without issuing any notice and without conducting the survey in his presence, the respondent Municipality unilaterally cannot come to a conclusion that the petitioner has encroached upon the land. In view of the same and balancing the interest of both the parties, this Court deems it appropriate to dispose of W.P.No.34362 of 2022 directing the respondent Municipality to conduct the survey within a period of two weeks from the date of receipt of a copy of this order after issuing notice to all the affected parties and thereafter, within two weeks, the respondent Municipality shall pass appropriate orders and take action in accordance with law. 4
LK, J W.P.Nos.34362 and 41777 of 2022
7. In W.P.No.41777 of 2022, the petitioner submits that there is an encroachment of the open space in the said colony. It is the bounden duty of the respondent Municipality to protect the same. It is submitted that in spite of the representation given by the petitioner and his colony members on 29-09-2021, the respondent Municipality has failed to take any action. Hence, the respondent Municipality shall also consider the representation of the petitioner dated 29-09-2021 and pass appropriate orders in accordance with law within a period of four weeks from the date of receipt of a copy of this order after giving due notice to all the affected parties, if any, and take appropriate action in accordance with law. As this Court has directed the respondent Municipality to issue notice to the unofficial respondents, this Court is not proposing to issue notice to them. No order as to costs.
8. With the aforesaid directions, both the writ petitions are disposed of. No order as to costs.
9. Miscellaneous Applications, if any pending in these writ petitions shall stand closed.
______________________ LALITHA KANNEGANTI, J 22nd November, 2022 sj