Andhra Pradesh High Court - Amravati
Mallineni. Samrajyam, vs The State Of Andhra Pradesh, on 27 April, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No:W.P.No.10881 OF 2023
PROCEEDING SHEET
SL. DATE ORDER OFFICE
NO. NOTE
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1. 27.04.2023
Heard Ms. Marella Radha, learned counsel
for the petitioners and learned Government Pleader
for Municipal Administration for the respondent
No.1 and Sri G. Naresh Kumar, learned counsel representing the respondent Nos.3 and 4.
2. Learned counsel for the petitioner submits that the petitioner 9 in number are the owners in possession of the land and the building thereon with respect to which the notice dated 19.04.2023 impugned in the writ petition for demolition of the constructions have been issued to the petitioners. All the notices are dated 19.04.2023, but passed separately with respect to the petitioners individually. The said impugned order has been passed on the ground that the petitioners have encroached upon the pond land and raised structures. The pond is situated in Sy.No.547.
3. Learned counsel for the petitioners submits that the petitioners' property is situated in Sy.No.546, 546/1, 546/2 to the extent as mentioned in the writ petition. Her submission is that the petitioners' property does not fall in 2 SL. DATE ORDER OFFICE NO. NOTE Sy.No.547. The notice was issued to the petitioners on 13.03.2023 under Sections 405 and 406 of the Municipal Corporation Act to which the petitioners submitted the reply on 16.03.2023 and thereafter the impugned orders have been passed.
4. The submission advanced by the learned counsel for the petitioners is that in the notices dated 13.03.2023 or in the impugned order, the extent of the encroachment, if there any encroachment at all, and the offending part of the building, is not disclosed. The submission is that on the spot the Municipal Corporation ought to have got the survey conducted to find out the boundaries of both survey numbers i.e. the pond and the land upon which the petitioners' property is situated but that was not done.
5. Sri G. Naresh Kumar, submits that from perusal of the notices dated 13.03.2023 and the impugned order, the extent of the encroachment is not disclosed. He submits that, may be the entire constructions are in Sy.No.547.
6. The proceedings were initiated pursuant to the request letter from the Engineering Section, to the Municipal Corporation that in Sy.No.547 there is encroachment which needs the removal for raising protecting wall around the pond.
7. The impugned order mentions about the orders passed by Division Bench of this Court dated 3 SL. DATE ORDER OFFICE NO. NOTE 20.10.2022 in W.P.(PIL).No.108 of 2022.
8. In W.P.(PIL).No.108 of 2022, the Division Bench of this Court issued the following directions:-
"8. In view of the fact that the encroachments alleged in the present cases are the tank lands/government land/road poramoboke and the similar issue was dealt with in W.P. (PIL) No.140 of 2022 and batch, we deem it appropriate to dispose of these cases in terms of the judgment in W.P. (PIL) No.140 of 2022 and batch, with the following directions:
"(i) The executive authority, i.e., Panchayat Secretary, of the respective Gram Panchayats shall identify the Gram Panchayat lands/tank lands/road poramboke, which are unauthorizedly occupied/encroached, and take steps for removal of such encroachments by issuing notice and providing opportunity of hearing to the unauthorized occupants/encroachers in terms of the procedure prescribed in Rules of 2011. This complete exercise shall be done within a period of six months from today.
"(ii) So far as the encroachments over the lands concerning the Municipalities/Forest Department/Revenue Department are concerned, even if no separate Rules have been framed prescribing the procedure to be followed in the matter of removal of encroachments over those lands, the officials of the concerned Departments, i.e., the Departments of Municipal Administration, Forest and Revenue, shall also undertake and complete the exercise of identification of unauthorized occupations/encroachments over the lands belonging to their respective Departments, within a period of two months from today, and thereafter, take steps for removal of such encroachments by following the principles of natural justice, i.e., issuing notice and providing opportunity of hearing to the unauthorized occupants/encroachers, within a further period of four months."4
SL. DATE ORDER OFFICE NO. NOTE
9. With the above directions, the Writ Petitions and Writ Appeal are disposed of. No costs, pending miscellaneous applications, if any, shall stand closed."
9. As is evident, this Court provided for granting opportunity of hearing for removal of the encroachment.
10. The notice, though was given, but once it is contended by the petitioners that their property is outside the Sy.No.547 of pond making of survey of Sy.No.547 and the petitioners' survey number, through the competent authority should have been conducted to determine the encroachment, and its extent over the petitioners.
11. Let the counter affidavit be filed within a period of four (04) weeks.
12. If counter affidavit is filed, the reply/rejoinder affidavit, if any, may be filed within a further period of two (02) weeks.
13. List on 19.06.2023.
14. The impugned order shall remain stayed, till the next date of listing.
15. However, the respondent Nos.3 and 4 shall get the survey done on the Sy.No.547 pond after giving due notice of the date of survey to the petitioners to enable them to be present at the time of survey, if they so desire and thereafter in case of encroachment on pond land, it shall be open for the 5 SL. DATE ORDER OFFICE NO. NOTE respondents to pass appropriate order, after affording opportunity of hearing to the petitioners.
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