Andhra HC (Pre-Telangana)
Mahajan (Taka) Latchaiah vs 1.The Govt. Of Andhra Pradesh, Rep. By ... on 11 November, 2014
Equivalent citations: AIR 2015 (NOC) 283 (HYD.)
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO
WRIT PETITION No.37821 of 2013
11-11-2014
Mahajan (Taka) Latchaiah.Petitioner
1.The Govt. of Andhra Pradesh, Rep. by its Principal Secretary and
others.Respondents
Counsel for the Petitioner:Sri K.Jamali,
^Counsel for the R-2:Sri D.Bhaskar Reddy
Standing counsel for R-2
Counsel for the R-3 :Sri V.Ravinder Rao
Standing counsel for R-3
<GIST:
>HEAD NOTE:
? Cases referred:
1. 2001 (3) ALD 163 (D.B.)
2. 2009 (1) ALD 465
3. 2010 (1) ALD 71
4. AIR 1966 SC 828
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
WRIT PETITION No.37821 of 2013
ORDER:
Heard the learned counsel for the petitioner Sri K.Jamali, Sri D.Bhaskar Reddy, learned Standing Counsel for 2nd respondent and Sri V.Ravinder Rao, learned Counsel for 3rd respondent.
2. In this Writ Petition, the petitioner has questioned memo No.10936/J1/2013 dt.28-11-2013 of the 1st respondent whereunder the 1st respondent set aside proceedings dt.09-08-2000 of the District Panchayat Officer, Karimnagar.
3. Petitioner is the owner and possessor of land admeasuring 1050 sq. yds. in Sy.No.794 of Metpally village and Mandal, Karimnagar District, which he purchased under registered sale deed dt.16-05-1996 from one Mamidi Prabhavathi.
4. The 3rd respondent and his brother are owners and possessors of Ac.2.00 of land in Sy.No.796 of the above village. The 3rd respondent is running a seed processing unit in the said property.
5. The property of the 3rd respondent is to the south of the property of the petitioner. To the north of the petitioners property, there is National Highway No.16 connecting Nizamabad and Karimnagar towns.
6. It is the admitted case of both sides that the 3rd respondent had access to the National Highway No.16 through a passage in the land in Sy.No.794 although the width of the passage according to the 3rd respondent is 12 feet and according to the petitioner, is 2 yards (or 6 feet). It is also not disputed that this passage is adjacent to the property of petitioner along his western boundary.
7. On 26-06-1996 a resolution was passed by the Gram Panchayat, Metpally, the predecessor of the 2nd respondent, on an application of the 3rd respondent, that there exists a 12 feet road providing access to the National Highway from his land; that for a long time people are using the same as a road; telephone poles were erected with the consent of the pattedars; that pattedars have erected a stone wall blocking the passage/road and this has obstructed passage of people; providing the road is necessary and therefore, it is resolved that the said stone wall should be removed, the road restored and steps should be taken to widen it to 18 feet. The pattedar referred to therein appears to be the petitioner.
8. Shortly thereafter, on 16-10-1996, the petitioner claims to have made application to the then Metpally Gram Panchayat for grant of permission to construct a shed and compound wall in his land.
9. On coming to know of this, the 3rd respondent filed an appeal before the District Panchayat Officer, Karimnagar alleging that vide proceedings A2/342/94 dt.12-06-1995 he was granted permission to construct a compound wall; that he came to know that petitioner, who has house site in Sy.No.794, had alleged that the said permission granted to 3rd respondent is illegal; petitioner had sought permission to erect a shutter/shed; therefore, till the title deeds of the parties are examined, orders be issued refusing permission to construct shutter/shed to petitioner.
10. On 09-08-2000, the District Panchayat Officer, Karimnagar, after hearing both parties, passed orders A3/3704/96 holding that even before grant of permission to petitioner for construction of a shutter, interim orders were issued not to grant permission to petitioner which has resulted in delay; that in the area where the petitioner intended to construct shed/shutter, there existed only 12 feet road; and the decision taken allegedly by the Metpally Gram Panchayat vide resolution dt.26-06-1996 in public interest, is illegal; that the road ends near the property of petitioner and need not go beyond his property; that no land need be taken from the property of the petitioner and permission be accorded by Executive Officer, Metpally Gram Panchayat to petitioner for construction of shutter/shed.
11. It is not disputed that after this order was passed, the Executive Officer of Metpally Gram Panchayat granted approval to the petitioner for construction of an A.C. sheet roof shed in his house site in Sy.No.794 including a compound wall on 19-09-2000.
12. The 3rd respondent questioned the same by filing an appeal before the Commissioner for Panchayat Raj and Rural Employment, Hyderabad.
13. By order dt.23-09-2000 in Ref. No.16976/CPR/D2/2000, the Commissioner held that the 3rd respondent is carrying on commercial activity and for the said purpose he has a road of width 2 yards; since the petitioner is the owner of the land in Sy.No.794, in case the 3rd respondent requires a wider road than the existing road, he should purchase the same at market rate from the petitioner. He therefore set aside the order dt.09-08-2000 in proceedings A3/3704/96 of the District Panchayat Officer, Karimnagar.
14. The petitioner questioned this order in W.P.No.18961 of 2000. The said Writ Petition was allowed by order dt.22-07-2002 holding that the Commissioner had no jurisdiction to pass the order dt.23-09-2000 and giving liberty to the 3rd respondent to question the same by availing remedy of Revision under Section 264 of the A.P.Panchayat Raj Act, 1994 before the 1st respondent.
15. Thereafter the 3rd respondent filed a Revision before the 1st respondent. The 1st respondent disposed of the said Revision vide G.O.Rt. No.985 Panchayat Raj and Rural Development (PTS.III) Department dt.13-07-2007 by setting aside the order dt.09-08-2000 of the District Panchayat Officer, Karimnagar and directing the District Collector (P.W.), Karimnagar to take action under the provisions of the Act for restoration of 18 feet road formation as per resolution of the Gram Panchayat, Metpally.
16. This was questioned by the petitioner in W.P.No.16280 of 2007 on the ground that the report of the District Collector (P.W.) was not supplied to him and on the basis of the said report, G.O.Rt.No.985 dt.13-07-2007 came to the passed. When the said Writ Petition was pending, the 1st respondent issued G.O.Rt.No.599 dt.17- 04-2008 rescinding G.O.Rt. No.985 dt.13-07-2007 having realized that the enquiry report of the District Collector (P.W.) was not furnished to the petitioner. In view of this development, this Court disposed of the said Writ Petition on 18-04-2008 directing the 1st respondent to dispose of the Revision filed by the petitioner expeditiously.
17. Thereafter a survey was directed by the 1st respondent through the Assistant Director, Survey and Land Records, Karimnagar. The latter deputed an Inspector of Survey who conducted a survey. In the said survey it was found that there is a 6 feet passage existing towards west of the plot of the petitioner, which the 3rd respondent has been using to have access to his seed processing unit; that the spot inspection revealed that there were electrical poles existing on the edge of 18 feet width road; and the Gram Panchayat resolution dt.26-06-1996 indicates that 18 feet wide road should be left.
18. While the above proceedings were going on, one Pudukaram Narayana, the vendor of Mamidi Prabhavathi, from whom the petitioner had purchased his site, filed O.S.No.17 of 1997 before Junior Civil Judge, Metpally to declare that he is the exclusive owner and possessor of an extent of 325 sq. yds. and a mandatory injunction be granted directing the 3rd respondent to close a gate erected by him. This suit was withdrawn on 06-03-2000 after both parties filed a memo to the effect that the plaint schedule property is a road and is in joint possession of both parties.
19. The survey report referred to in para No.17 above referred to the decree in the above suit also.
20. In the meantime, the Gram Panchayat, Metpally was constituted as Metpally Municipality.
21. Thereafter W.P.No.15326 of 2006 was filed by Sai Seeds Corporation, represented by 3rd respondent against the Commissioner of Metpally Municipality and M/s.Shakthi Industries in respect of a dispute regarding construction of a compound wall in a public road in Sy.No.796 of Metpally village. This Writ Petition was allowed on 07- 11-2007 directing the Commissioner, Metpally Municipality to examine and decide whether a wall constructed by M/s.Shakthi Industries is obstructing a public street. This Writ Petition does not appear to have any connection with the present lis and is mentioned for the sake of completeness.
22. Ultimately, the impugned memo No.10936/J1/2013 dt.28-11-2013 was issued by 1st respondent upholding the contention of 3rd respondent that the proceedings dt.09-08-2000 of the District Panchayat Officer, Karimnagar, are invalid. It was set aside and the District Collector (P.W.), Karimnagar was directed to take action for restoration of the 18 feet road as per the resolution of the Gram Panchayat. The judgment dt.06-03-2000 in O.S. No.17 of 1997 of Junior Civil Judge, Metpally referred to above, was also relied upon by the 1st respondent in support of its above conclusion.
23. Questioning the same, the present Writ Petition is filed by petitioner.
24. Learned counsel for the petitioner contended that the said Memo is contrary to law and unsustainable; that the petitioner had applied for permission to make construction of a shed in his land in Sy. No.794 to the Executive Authority of the Metpally Gram Panchayat; that the said Executive Authority declined to grant permission to the petitioner at the behest of 3rd respondent; since 3rd respondent approached the District Panchayat Officer by way of appeal requesting the latter not to grant permission to the petitioner, the petitioner placed the true facts before the District Panchayat Officer; on being satisfied about the petitioners claim, he set aside the resolution dt.26-06-1996 of the Gram Panchayat, Metpally and directed the Executive Authority of the said Gram Panchayat to grant permission to petitioner; that the District Panchayat Officer in his order dt.09-08-2000 rightly declared the resolution dt.26-06-1996 of 2nd respondent as contrary to law since the said resolution was passed at the behest of 3rd respondent and to favour him without giving any notice to petitioner; that petitioner is entitled to make constructions in his property and it is not open to 3rd respondent to oppose the same; that Commissioner, Panchayat Raj in his order dt.23-09-2000 rightly held that 3rd respondent ought to have purchased land from petitioner at market rate if he wanted a road through the petitioners property although he erroneously set aside the order dt.09-08-2000 of the District Panchayat Officer. He further submitted that petitioner was granted permission by the Executive Officer of Metpally Gram Panchayat on 19-09-2000 pursuant to the direction of the District Panchayat Officer dt.09-08-2000; the dispute between himself and the 3rd respondent is a private dispute without any public law element; and 3rd respondent ought to have approached the Civil Court for its resolution instead of approaching the District Panchayat Officer/1st respondent for its resolution. He also contended that 1st respondent ought not to have relied upon the judgment dt.06-03-2000 in O.S.No.17 of 1997 in support of its conclusion that order dt.09-08-2000 of the District Panchayat Officer, Karimnagar District has to be set aside; since the petitioner is not a party to the said suit and the said suit was filed by the petitioners predecessor in title Pudukaram Narayana against 3rd respondent after purchase by the petitioner of the land under his occupation on 16-05-1996, the decision therein does not bind him.
25. The learned Standing Counsel for 2nd respondent Sri D.Bhaskar Reddy stated that 2nd respondent would act as per the impugned memo dt.28-11-2013 which is binding on 2nd respondent.
26. The learned counsel for 3rd respondent however contended that if the Executive Authority of the Metpally Gram Panchayat did not grant permission to the petitioner to make construction in the land in Sy. No.794, he should have filed an appeal against the said refusal under Section 128 (1) (a) of the AP Panchayat Raj Act, 1994 (for short the Act) to the Gram Panchayat; that petitioner did not do so; petitioner had also not challenged resolution dt.26-06-1996 of the Metpally Gram Panchayat before any forum; it was not open to the petitioner in the appeal preferred by 3rd respondent before District Panchayat Officer, to canvass about the invalidity of the resolution dt.26-06-1996 of the Metpally Gram Panchayat or seek a direction from him to the Executive Authority of the Gram Panchayat to grant permission to petitioner to make constructions and the District Panchayat Officer cannot grant any relief to petitioner in the appeal filed by 3rd respondent; that District Panchayat Officer is a Second Appellate authority under Section 128 (2) of the Act against the decision of the Gram Panchayat passed in appeal under sub Section (1) thereof; therefore he had no jurisdiction to pass the order dt.09-08-2000; consequently the permission dt.19-09-2000 granted by Executive Authority of Metpally Gram Panchayat to the petitioner pursuant to the order dt.09-08-2000 of the District Panchayat Officer is illegal and nonest in law; and any construction made pursuant to such permission of the Executive Authority has to be held to be not authorized by law. He further contended that 1st respondent had rightly set aside the order dt.09-08-2000 of the District Panchayat Officer and the said order does not warrant any interference in exercise of jurisdiction under Article 226 of the Constitution of India.
27. He also contended that Pudukaram Narayanas father was the exclusive owner and possessor of Ac.0.29 gts out of Sy. No.794; on the death of his father, Pudukaram Narayana inherited the same; that Pudukaram Narayana divided his land into bits for his convenience and use had created a road/passage; this lane connects the 3rd respondents property with the National Highway No.16 and goes adjacent to petitioners property; in its resolution dt.26-06-1996, the Gram Panchayat has recorded that there is a 12 road connecting the National Highway with 3rd respondents property passing adjacent to the petitioners property; and even the survey report of the Assistant Director, Survey and Land Records obtained through the Inspector of Survey indicated that there are electrical poles existing on the edge of 18 width indicating the passage in between to be a road.
28. He also contended that adjacent to the land of Pudukaram Narayana, his relatives had land on the eastern side of the passage; and from them, under registered sale deed dt.21-09-1983, one Mamidi Prabhavathi purchased Ac.0.19 gts in sy. No.794; this sale deed showed that to the west of the land purchased by her there was a two yards way (6); from Mamidi Prabhavathi, the petitioner purchased 1050 sq yds, but in the sale deed dt.16-05-1996 of the petitioner, mischievously, the existence of the passage to the west of his site was omitted; this was done to occupy the passage and block 3rd respondents access to the passage; taking advantage of said recital in his sale deed dt.16-05-1996, the petitioner has laid a claim to the land covered by the passage; this indicates that the petitioner has not come to the Court with clean hands and has attempted to mislead the Gram Panchayat, Metpally, its Executive Authority, 2nd respondent Municipality, the District Panchayat Officer, Commissioner of Panchayat Raj and even 1st respondent.
29. He further contended that the decision dt.06-03-2000 in O.S.No.17 of 1997 between Pudukaram Narayana and 3rd respondent relates to the same open space and that after the suit was filed by Pudukaram Narayana, there was a compromise between both of them and the suit was withdrawn by filing a Memo that the suit property is a road and is in joint possession of both parties; the said decree in the suit is a piece of evidence which can be relied upon in support of the 3rd respondents case that there is a road providing access to his property; and it is not open to petitioner to contend that there was no road adjacent to his property leading to 3rd respondents property connecting it to National Highway No.16.
30. I have noted the submissions of both sides.
31. The point for consideration is whether there are any grounds to interfere with the impugned Memo of 1st respondent dt.28- 11-2013?
32. The facts narrated above indicate that the property of 3rd respondent is on the southern side of the property of the petitioner and National Highway No.16 is to the north of the petitioners property. The sale deed dt.21-09-1983 under which Mamidi Prabhavathi purchased Ac.0.19 gts from her vendors shows the western boundary to be the land of her vendors and two yards way. But when the petitioner purchased 1050 sq yds from Mamidi Prabhavathi under registered sale deed dt.16-05-1996, the western boundary of the land purchased by him is shown as the basement of Pudukaram Narayana only. The existence of the two yards passage is omitted in the sale deed of the petitioner. Taking advantage of this omission, the petitioner is contending that there is no passage or road to the west of his land connecting the property of 3rd respondent in Sy. No.796 with the National Highway No.16 which is to the north of petitioners property. I am of the opinion that the petitioner cannot be allowed to take advantage of the recital in his sale deed and mislead this Court and contend that there is no such passage at all. This conduct of the petitioner does not appear to be bona fide.
33. Be that as it may, the case of the petitioner is that he had applied to the Executive Authority of Metpally Gram Panchayat, the predecessor of 2nd respondent for permission to make construction in the land purchased by him and that the latter did not grant such permission. Petitioner has a remedy of a First Appeal to the Gram Panchayat against the said action of the Executive Authority of the Gram Panchayat under Section 128 (1) (a) of the Act. The petitioner did not avail of the same.
34. The facts on record indicate that on 26-06-1996, a resolution was passed by the Gram Panchayat Metpally stating that a 12 road exists connecting the 3rd respondents property with the National Highway; that this is a public road on which there are telephone poles erected with the consent of the pattedars; that this road was blocked by a stone wall illegally; such wall has to be removed and the width of the road should be increased from 12 to 18. The record also indicates that 3rd respondent had filed an appeal before the District Panchayat Officer, Karimnagar contending that no permission should be granted for making construction to the petitioner. In this appeal, the District Panchayat Officer had held not only that the resolution dt.26-06-1996 of the Metpally Gram Panchayat was wrong, but also that there existed a 12 road which was not desirable, and directed the Executive Authority to grant permission to petitioner to construct a shutter/shed in the land in Sy. No.794.
35. It is pertinent to note that no appeal was filed by petitioner questioning the resolution dt.26-06-1996 of the Gram Panchayat before any forum. Without any challenge to the said resolution by petitioner, in the appeal filed by 3rd respondent before the District Panchayat Officer, the latter could not have declared it as illegal. In fact, the very appeal filed by 3rd respondent before the District Panchayat Officer is not maintainable since there was no order of any authority including the Executive Authority or Gram Panchayat questioned by 3rd respondent before the District Panchayat Officer.
36. The District Panchayat Officer is admittedly only a Second appellate authority against decisions of the Gram Panchayat passed in an appeal under sub section (1) of Section 128. He is not the original authority or first appellate authority.
37. In Aljapur Ganga Mohan Vs. District Panchayat Officer, Nizamabad District, Nizamabad and others , a Division Bench of this Court followed a decision of another Division Bench of this Court in W.A.No.947 of 1995 which had held that if the order is passed by someone subordinate to the Gram Panchayat, an appeal is provided under Section 128 of the Act to the Gram Panchayat and a Second Appeal against the appellate order is provided before the District Panchayat Officer. If the original order itself is based upon a resolution of the Gram Panchayat, it is obvious that no appeal can be filed before the Gram Panchayat and since there is no appeal, in such a situation before the Gram Panchayat, there is no occasion for a Second Appeal before the District Panchayat Officer as provided under the said section of the Act.
38. Similar view was expressed in Gram Panchayat, Siddantham, Penugonda Mandal Vs. District Panchayat Officer, Eluru . In that case, it was held that if the resolution passed by the Gram Panchayat was not in exercise of appellate powers against an order of the Executive Authority, no appeal would lie against it. This was followed in Shaik Osman and another Vs. District Panchayat Officer, Nizamabad and others
39. Therefore the District Panchayat Officer could not have entertained any challenge by petitioner to the resolution dt.26-06-1996 of the Gram Panchayat, Metpally in the appeal filed by 3rd respondent since that resolution was not passed in exercise of appellate powers by it against an order of the Executive Authority. So he had no jurisdiction to decide the correctness of the said resolution.
40. He therefore could not have directed the Executive Authority of the Gram Panchayat to give permission to petitioner to make construction in his site without the petitioner having questioned the decision of the Executive authority in not granting permission to make construction initially in first appeal before the Gram Panchayat. Therefore the order dt.9.8.2000 of the District Panchayat Officer is null and void since it is passed without jurisdiction.
41. In this view of the matter, the conclusion in the impugned Memo dt.28-11-2013 that the decision of the District Panchayat Officer, Karimnagar dt.09-08-2000 cannot be upheld and deserves to be set aside, cannot be said to be erroneous or vitiated by any error apparent on the face of the record.
42. Even assuming for the sake of argument that petitioners contention that impugned Memo of 1st respondent is erroneous, no relief can be granted to petitioner because if the said Memo is set aside it will revive the illegal and void order of the District Panchayat Officer dt.9.8.2000. In Gadde Venkateswara Rao v. Govt. of A.P. , the Supreme Court has held that if setting aside of an order under Art.226 would have the effect of reviving another order which is also contrary to law, this Court should not grant any relief to petitioner in the Writ Petition. It observed :
19. The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
43. Consequently, I do not find any merit in the Writ Petition and hold that this is not a fit case for exercising the extraordinary discretionary power of this Court to set aside the impugned Memo. It is accordingly dismissed. No costs.
44. Miscellaneous petitions, pending if any, in these Writ Petitions, shall stand closed.
___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date: 11-11-2014