Andhra Pradesh High Court - Amravati
Inje Samiyelu vs The State Of Andhra Pradesh on 15 November, 2022
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.45075 of 2018
O R D E R:
This writ petition is filed by the petitioners seeking removal of a wall allegedly constructed in Government Paramboke Land and Bodhi canal.
This Court has heard learned counsel for both the parties and has perused the counters filed by respondent Nos.5 and 6. The report filed by the Government Pleader for Assignment for the 4th respondent is also considered.
The petitioners have filed the case stating that they are 'assignees' of small extents of land in Sy.Nos.358 and 359 of Ambedkarnagar Colony, Saripalli H/o Gopavaram Village, Uppalaguptam Mandal, East Godavari District. There is a Canal bodhi that runs through the houses and is useful for drinking water etc. The 6th respondent allegedly constructed a compound wall on the bodhi by filling up of soil. It is this wall which is sought to be removed.
The counters filed show that the construction was made by the 6th respondent with the oral permission of the 2 Grampanchayat and at the request of the colony people only. All the residents of the Village have supposedly requested the 6th respondent to construct the wall.
The 4th respondent also clearly states in the counter that the compound wall is constructed in 2014 by respondent No.6 with the co-operation of the encroachers on either side of the bodhi, who requested respondent No.6 to close the bodhi. It is also stated that the land is Sy.Nos.358, 359 and 362 of the Village is occupied by 30 families and they were not given any pattas and that the occupants are encroachers.
In the light of this factual position, this Court has to consider whether the petitioners are entitled to any relief.
The petitioners state that they were assigned the lands since they are landless poor (para 3 of the affidavit). No documentary proof is filed to show the assignment. On the contrary, documents filed by the petitioners themselves show that Ac.0.22 cents out of Ac.0.29 cents in Sy.No.358 and Ac.0.56 cents out of Ac.0.67 cents in Sy.No.359 are illegally occupied. The other extent of Ac.0.07 cents and Ac.0.11 cents in Sy.Nos.358 and 359 are occupied by the unofficial respondents. Therefore, it is clear that the petitioners are 3 guilty of suppression of facts and have not sought a relief from this Court by disclosing all the true and correct facts. This by itself disentitles them from seeking an equitable and discretionary relief of Mandamus.
Admittedly, the petitioners are encroachers. The 6th respondent is also an encroacher. The counters filed make it very clear that the compound wall was constructed in the year 2014. This is not disputed by the petitioners by filing a rejoinder to the counter affidavit. It is also apparent that notices were issued under the Land Encroachment Act, but no finality had yet been reached. The counter filed by respondent No.5 clearly shows that at the request of the colony people and the oral permission given by the Grampanchayat, the 6th respondent came forward to construct the wall. The Panchayat Secretary states that because of the construction of the compound wall, the colony people are safely utilising the canal poramboke site for playing purposes.
Considering the conduct of all the parties to the writ, this Court is of the opinion that it cannot be a silent spectator. Admittedly, land belonging to the 4 Government/Panchayat has been encroached by the petitioners and also respondents itself for the construction of the compound wall abutting the bodhi etc. No written permission was obtained. The Panchayat and the Revenue Department namely respondent Nos.1 to 5 have an active duty to safeguard and protect the public property. They are the custodians of the public property. They cannot allow the petitioners or the 6th respondent to construct in or occupy and/or enjoy the Government property. If the construction of wall is necessary for public safety, the respondent Nos.2 and 5 have an active duty to look into this aspect and construct the same. They cannot be privy to or a party to illegal encroachment or the unsanctioned construction of wall.
A Division Bench of this Court in W.P.(PIL)No.108 of 2022 and batch held that removal of encroachments is a must. Time frame was fixed and directions were given for removal of encroachments.
In line with the judgment in W.P.(PIL).No.108 of 2022 and batch, respondent Nos.2 to 5 are directed to take immediate action to remove the encroachments by following due process of law.
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With these observations, the writ petition is dismissed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date: 15.11.2022 KLP