Andhra HC (Pre-Telangana)
Dudekula Vannur vs Markapur Municipality And Anr. on 28 October, 1997
Equivalent citations: 1998(4)ALD384, 1998 A I H C 3412, (1998) 4 ANDHLD 384 (1998) 1 ANDHWR 454, (1998) 1 ANDHWR 454
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1.Heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondent-Municipality.
2. In the instant writ petition, the petitioner prays for issuance of an appropriate writ, particularly one in the nature of writ of Certiorari calling for the records relating to the impugned notice dated 26-10-1994 and quash the same.
3. Brief facts of the case, for the purpose of adjudicating this writ petition may be noticed:
The petitioner's father is stated to have purchased the site in question under a registered sale-deed as early as in the year 1946. The petitioner became owner of the site in question under a gift-deed stated to have been executed by his mother along with house bearing D.No.102-A of Markapur Gramapanchayat. The Gift-deed is stated to have been registered on 4-6-1984. The petitioner claims to be in exclusive possession and enjoyment of the site in question.
4. The petitioner is stated to have applied to the respondent-Municipality in 1984 to make new construction over the existing old walls of the said house bearing D.No.6/ 472 and 472/A, New Market Veedhi, Ward No.6 of Markapur town. The respondent-Municipality is stated to have accorded sanction and the petitioner constructed the house.
5. While the matter stood thus, the petitioner received the impugned notice issued by the first respondent dated 26-10-1994 purported to be under Section 192 read with Section 360 of the A.P. Municipalities Act, 1965 (for short 'the Act'). Through the impugned notice the petitioner was called upon to remove the encroachment within seven days from the date of receipt of the notice. After receipt of the said notice, the petitioner is stated to have made a representation to the first respondent-Municipality explaining in detail that the site in question is a private house-site in his possession and enjoyment and also his predecessor in title from 1946 till date and he also stated to have made available a copy of the registered sale-deed and registered gut dated 22-9-1946 and 4-6-1984 respectively relating to the title of the property in question. The said documents, according to the petitioner, were referred to the Regional Joint Director of Municipalities, Guntur for verification and report. The issue, according to the petitioner, is still pending with the Joint Director.
6. It is the case of the petitioner that he has not encroached into the municipal site at all. The respondent-Municipality without verification of the registered document had issued the impugned notice. The construction made, according to him, is in accordance with the permission granted by the respondent-Municipality for re-construction and there are no deviations whatsoever on the part of the petitioner. The notice is totally illegal and without jurisdiction apart from being ultra vires the provisions of the Act. is the submission.
7. In the counter-affidavit filed by the respondent-Municipality, it is inter alia stated that the petitioner submitted a building plan to the Municipality for change of roof into R.C.C. from modem terrace roof. Permission was given as per the plan in B.A.No.109/94 dated 17-10-1994 in respect of D.No.6/472 and 472-A, New Market Street, Markapur. It is further stated that the petitioner demolished the existing house and started construction by encroaching on the road site on Northern and Western side by 37.6 sq.feet and 33.00 sq.feet respectively. In such view of the matter, the respondent-Municipality issued the notice bearing No.3/94 on 26-10-1994 and the same was served on the petitioner on 2-11-1994. Through the notice the petitioner was directed to remove the encroachment, since the petitioner had encroached on the municipal site.
8. It is the case of the Municipality that the petitioner had encroached on the municipal site and made construction by violating the approved/sanctioned plan. As per the plan, change of roof for ground floor alone was permitted; whereas the petitioner constructed both ground aid first floor. Therefore, the first floor construction is totally illegal, besides the encroachment made by the petitioner on two sides of the house. It is stated that the petitioner even ignored the notice issued by the respondent-Municipality and constructed on the road margin by demolishing the existing house bearing No.6/472 and 472/A. The details of the encroachment made by the petitioner on the road margin are stated in the counter.
9. It is further stated in the counter-affidavit that so far as the issue relating to the unauthorised construction is concerned, the Municipality has filed a criminal case -S.T.C.No. 17/95 against the petitioner before the Judicial Magistrate of First Class, Markapur. While the STC was pending, the Government has issued G.O.Ms.No.243, MA. dated 22-5-1996 enabling the parties to seek regularisation of un-authorised constructions on condition of payment of penal amounts, provided the unauthorised constructions are prior to 31-3-1996. It is admitted in the counter-affidavit that the petitioner paid a sum of Rs.3,750-00 and requested for regularisation of un-authorised construction as per the said G.O. But no decision is taken by the respondent-Municipality in view of the pendency of the writ petition. It is, however, alleged in the counter-affidavit that the petitioner herein made further construction of stair-case unauthorisedly on the eastern side of his building by encroaching the dispute site named as 'Bhavikipovu Bata' during second week of December, 1996 that is to say after filing of the writ petition.
10. The Court, in the instant writ petition, is not concerned with the unauthorised construction made by the petitioner in the site owned by him after demolishing the existing old house, as his application for regularisation of the construction is stated to be pending consideration with the respondent-Municipality. The respondent-Municipality shall take an appropriate decision in the matter in terms of G.O.Ms.No.243-MA, dated 22-5-1996, provided the petitioner's case falls under the said G.O., and he is entitled for any relief.
11. In the instant writ petition, the Court is concerned with the legality, propriety and validity of the notice dated 26-10-1994 issued by the respondent-Municipality purported to be under Section 192 of the Act. By the impugned notice, the petitioner was directed to remove the encroachment on the land belonging to the Municipality' i.e., the road margin. It is alleged in the very notice that the petitioner had encroached on the Northern and Western sides of the house to the extent of 37.6 sq.feet and 33.00 sq.feet respectively, making illegal construction and contrary to the sanctioned plan in the land owned by the petitioner.
12. Learned Counsel for the petitioner, Sri M. Ramachandra Reddy, however, submits that the petitioner is entitled for the benefit of G.O.Ms.No.243-MA, dated 22-5-1996. It is submitted by the learned Counsel for the petitioner that even such constructions made on the road margins, land belonging to the Municipality or on the foot-path also can be regularised in terms of G.O.Ms.No.243. Since the application filed by the petitioner is pending with the Municipality a direction may be issued to the respondent-Municipality to consider and dispose of the application filed by the petitioner for regularisation of the un-authorised construction. I express my inability to accede to the submission made by the learned Counsel for the petitioner.
13. It is required to notice that the Government through the Governmental order extended the orders of rcgularisation of unauthorised construction to all the Municipal bodies authorising the respective Municipal Commissioners to enumerate unauthorised constructions and regularise all those constructions made upto 30-3-1996 by 30-8-1996 as per the guide-lines issued in G.O.Ms.No.87-MA, dated 12-2-1992. Even the said Government Order would show that un-authoriscd constructions made in the site not exceeding 200 sq.m. in area alone can be regularised. The said Government order would not give the benefit of regularising the unauthorised constructions made by the persons on the land belonging to the Municipality on the road-margins. Obviously there is no provision either under the Act or in the Government order enabling the Municipalities to regularise the constructions even made on the public road, road margin or on the site belonging to the Municipality. In such view of the matter, I am of the considered opinion that die petitioner is not entitled for the benefit of the G.O.Ms.No.243, for regularisation of the constructions made by him by encroaching into the road margin. He may be entitled for the benefit of the G.O., for regularisation of the illegal construction, if any, made by him, in respect of which he had already made application. Such an application is required to be considered by the Municipality in accordance with law. I have to hold that even the Municipality has no authority in law whatsoever to regularise the construction made by any person on the road margin, footpath or on the site belonging to the Municipality. In this case it is alleged that the petitioner had encroached into the road margin. It means that the petitioner has encroached into the land reserved for the public purpose that is to say for the purpose of the road.
14. Section 192 of the Act authorises the Commissioner of the Municipality to remove or alter any projection, encroachment or obstruction situated against, or in front of such premises and in, or over any street. However, in case where the owner/occupier establishes that any such projection, encroachment or obstruction 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 authority duly empowered in that behalf, and that the period for which permission or licence is valid and not expired, the Council shall make reasonable compensation to every person who suffers damage by removal or alteration of the same. Therefore, even such cases where the encroachment or obstruction could have existed for a period sufficient under the law of limitation cannot be regularised. Even such person who had acquired prescriptive title under the law of Limitation cannot be allowed to squat on public property. At the most such persons are entitled for reasonable compensation on account of removal or alteration of the same.
15. In the instant case it is stated in categorical terms in the counter-affidavit that the petitioner made construction not only in the lands which admittedly belong to him, but also on the site reserved for public purpose i.e., roads etc. It is not as if the petitioner had acquired prescriptive title in respect of the road site which he has encroached. According to the respondents the encroachment is after obtaining permission from the Municipality and under the guise of permission granted by the Municipality, the petitioner proposed to make construction not only in the place of the old house which was demolished, but also by encroaching on the road site towards northern and eastern sides. It is this encroachment, which is sought to be removed by the respondent-Municipality in exercise of its power under Section 192 of the Act.
16. I am of the considered opinion that Section 192 of the Act undoubtedly authorises the Commissioner of the Municipality to take appropriate steps for the removal of such encroachment. Mere assertion of the petitioner that he has not encroached on the road site is not acceptable. In fact there is no affidavit whatsoever filed by the petitioner rebutting or disputing any of the averments made in the counter-affidavit.
17. For the aforesaid reasons, it is difficult to find fault with the notice issued by the respondent-Municipality purported to be under Section 192 of the Act. I am of the considered opinion that the proceedings initiated by the respondent against the petitioner under Section 192 of the Act directing him to remove the encroachment does not suffer from any infirmity whatsoever. I do not find any merit in the writ petition. The writ petition fails and it is accordingly dismissed. No costs.
18. However, this order would not preclude the respondent-Municipality in considering the application of the petitioner under G.O.Ms.No.243, MA, dated 22-5-1996 for regularising the un-authorised construction made by him insofar as it relates to unauthorised construction made on the site owned by him.