Andhra Pradesh High Court - Amravati
Malla Venkata Rao vs The State Of Andhra Pradesh on 10 November, 2022
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.36163 of 2022
JUDGMENT:-
1. Heard Sri G.Raju, learned counsel for the petitioners and learned Assistant Government Pleader for Revenue for the respondent Nos.1 and 3, Sri S.Lakshminarayana Reddy, learned Standing Counsel for the respondent No.2 and Sri T.Vinod Kumar, learned Standing Counsel for A.P.S.R.T.C for the respondent No.4.
2. The petitioners 16 in number, have filed this petition under Article 226 of the Constitution of India for direction more particularly in the nature of writ of mandamus in not regularizing or assigned pattas and threatening to dispossess the petitioners from their respective occupations/sheds which are erected for doing business in the eastern side road margin of Pudimakada road in Anakapalli District.
3. The prayer is reproduced as under:
"That the Hon'ble Court may be pleased to issue Writ order or orders specially one in the nature of WRIT OF MANDAMUS declaring the action of respondents in not regularizing or assigned pattas and threatening to dispossess the petitioners from their respective occupations/sheds which are erected for doing petty business such as cobbling and fruit selling etc in the eastern side road margin of Pudimakada road in Anakapalli town Anakapalli 2 District without following due process of law pending consideration of application for regularization of their occupations or providing alternative sites for conducting business as per the orders of this Honble Court in W.P.No.18353 of 2010 dated 28.07.2010 as illegal irregular arbitrary and violative of the settled principles of law violative of the provisions of Board Revenue Standing Orders Land Encroachment Act 1905 and also offends under Articles 14, 21 and 300-A of Constitution of India and also violation of the orders of this Honble Court in W.P.No.18353 of 2010 dated 28-07-2010 and consequently direct the Respondents not to dispossess the petitioners and pass appropriate orders."
4. Learned counsel for the petitioners submits that the petitioner Nos.1, 2, 7, 8, 9 and 11 earlier filed W.P.No.18353 of 2010, which was disposed of on 28.07.2010, with a direction to the petitioners therein to make a proper representation to the respondent No.1 therein, which respondent was also directed that in case such a representation was made, to consider the same and pass appropriate orders in accordance with law and till such time, those petitioners shall not be evicted from the premises.
5. The petitioners 1, 2, 7, 8, 9 and 11 are said to have filed the representation dated 07.08.2010, which according to the submission has not been disposed of and recently in the month of October, 2022 the respondents are taking action to dispossess those petitioners, along with rest of the petitioners at 3 Sl.No.3, 4, 5, 6, 10 and 12 to 16 of this petition, in violation of the order dated 28.07.2010, passed in W.P.No.18353 of 2010, pending consideration of their application for regularization and providing alternative sites.
6. Learned counsel for the petitioners submits that the petitioners are doing business on the road margin who seek direction to regularize their occupation by issuing directions to the respondent authorities.
7. Sri S.Lakshminarayana Reddy, learned Standing Counsel submits that the petitioners have encroached upon the road margin which is left for the public purposes. The petitioners have no right neither to carry on the business on the road margin nor for regularization of their possession under law. They also have no legal right for providing alternative sites. He has placed reliance on the judgments in the case of Sodan Singh and others vs. New Delhi Municipal Committee and another 1 as also in the case of Jubliee Hills Labour Welfare Association and others vs. Municipal Corporation of Hyderabad, rep. by its Commissioner and others2, to contend that those persons are also not entitled for opportunity 1 AIR 1989 sc 1988 2 2004 (1) ALT 321 (S.B.) 4 of hearing before removing the encroachment except the reasonable time to effect the removal.
8. I have considered the submissions advanced by the learned counsel for the parties and perused the material on record.
9. The undisputed fact is that the petitioners are occupying the road margin.
10. Learned counsel for the petitioners submits that with respect to the petitioners 1, 2, 7, 8, 9 and 11 there is direction in W.P.No.18353 of 2010 to the respondent No.1, the then concerned Municipality, to consider those petitioners' representation in accordance with law and till such time not to evict those petitioners from the premises in their occupation.
11. In Sodan Singh (supra), the Hon'ble Apex Court has laid down that though the citizens have the fundamental right to carry on trade or business of their choice but not to do so on a particular place. The Footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of 5 safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. It has further been held that no one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage, and even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which the, pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised to use it, he becomes a trespasser. If a person puts up a dwelling on the pavement whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised.
12. In Jubilee Hills (supra), this Court held that the Municipal Corporation has right to remove and clear illegal encroachments on the roads, road margins, pavements and footpaths, as provided for under Section 405 of the Municipal 6 Corporation Act. This Court further held that those occupants of the road margins and pavements are not entitled for any notice, as such they may be given a reasonable time to remove their articles before steps are taken by the Municipal Corporation to clear such illegal encroachments. The Municipal Corporation is under no obligation to provide alternative sites to such persons i.e the encroachers of the road, road marigins or pavements.
13. The judgment in Jubilee Hills (supra) has been affirmed by the Division Bench of this Court in Mohd. Ilyas Khan and others vs. Abdullah Bin Hussain and others3, inter alia holding that in view of the statutory obligation the Municipal Corporation cannot allow any business to be carried on the footpath etc.
14. In view of the law as laid down in the aforesaid judgments, the encroachers of the road or road margins etc. cannot have any legal right either to carry on trade on the road margins or for the regularization of their encroached occupation of the road margin. They also do have any right to claim for providing alternative sites, nor of any notice under Section 405 of the Municipal Corporation Act, but only some time to remove 3 MANU/AP/0396/2010 7 their articles before the action of removal is taken by the concerned local body.
15. Learned counsel for the petitioners placed reliance in the case of Pilli Lakshmana Rao and others vs. Executive Officer and others4 to contend that the petitioners were entitled for notice. The said case is not applicable to the facts of the present case inasmuch as that was a case where the property of an individual was required for public purpose. It was held that the authorities could not take the law into their hands and the notice was to be issued before taking one's property. The present is not a case of taking the petitioner's property for any public purpose but is a case where the petitioners have encroached on the public property/road margin and are to be removed there from.
16. The order dated 28.07.2010 in W.P.No.18353 of 2010 upon which much reliance has been placed by learned counsel for the petitioners is only with respect to petitioner Nos.1, 2, 7, 8, 9 & 11 as pointed out by him; It reads as under:
"Having regard to the plea of the petitioners that they have been carrying out petty business in the premises in question for the past 30 years, I deem it appropriate to dispose of the writ petition with a direction to the petitioners to make a proper representation before the first respondent, within a 4 2000 (5) ALT 246 (D.B.) 8 period of two weeks from today to regularize their occupations subject to appropriate terms or, to provide alternative sites to enable them to carry on their business. If any such representation is made within the time fixed above, the same shall be considered and appropriate orders be passed by the first respondent in accordance with law. Till such time, the petitioners shall not be evicted from the premises in their occupation. No costs."
17. The submission of the petitioners' counsel is that the interim direction granted inW.P.No.18353 of 2010 is continuing as the representation has not been decided.
18. Sri S. Lakshminarayana Reddy, submits that the concerned Municipality, to whom the petitioners might have given the representation in the year 2010, is no more inexistence as it has merged in the Greater Visakhapatnam Municipal Corporation and after 12 years the petitioners are submitting that their representation was not decided and if it was so they ought to have approached earlier.
19. Considering the facts as aforesaid, in view of the final order dated 28.07.2010 in W.P.No.18353 of 2010, copy of the representation of the petitioners bearing the endorsement of receiving dated 20.08.2010 thereon, and in the absence of any instruction to the learned standing counsel to the contrary as regards decision on representation of the petitioners 1,2,7,8,9 and 11 (i.e the petitioners in W.P.No.18353 of 2010) it is 9 considered appropriate to pass an order in the case of petitioners 1,2,7,8,9 and 11 that it shall be open only to those petitioners to file a copy of the representation dated 7/20th, August, 2010 (Ex.P.5) before the respondent No.2/Greater Visakhapatnam Municipal Corporation, within ten (10) days from the date of receipt of copy of this order, along with copy of this order, upon which the respondent No.2, within a further period of three (03) weeks shall pass order in accordance with law and till the decision is taken the protection granted in W.P.No.18353 of 2010 shall continue to those petitioners only and shall abide by the final decision to be passed by the 2nd respondent.
20. For aforesaid consideration, in the result:
1) The writ petition for the petitioner Nos.3,4,5,6,10,12 to 16 is dismissed.
2) Writ petition for the petitioner Nos.1,2,7,8,9 and 11 is disposed of with the following directions:-
a) it is open to the petitioner Nos.1,2,7,8,9 and 11 to file a copy of the representation dated 7/20th, August, 2010 (Ex.P.5) before the respondent No.2/Greater Visakhapatnam Municipal Corporation, within ten (10) days from the date of receipt of copy of this order.10
b) upon the said representation (Ex.P.5), the 2nd respondent shall within a period of three (03) weeks pass order in accordance with law, positively.
c) the respondent No.2, while considering the representation of the petitioners as aforesaid, shall act as per the law discussed above in Para 14 of this judgment.
d) for a period of two months or till passing of order by the 2nd respondent, as aforesaid, whichever is earlier no coercive action shall be taken against the respondents 1,2,7,8,9 and 11.
e) If the said petitioners failed to comply with the direction in clause (a) (supra) the benefit of this order shall not be available to them on the expiry of the period as in clause (a).
21. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
__________________________ RAVI NATH TILHARI,J Date:10.11.2022 Note:-
Issue C.C in four (04) weeks B/o SCS 11 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI 171 WRIT PETITION No.36163 of 2022 Date: 10.11.2022 Scs