WP/27458/2005 of Vemula Venkataiah, Vs The District Collector, on 22 December 2006

:: JUDGMENT ::

Counsel for the petitionersSri M.V.S.Suresh KumarCounsel for respondents 1 to 3Government Pleader for Revenue Counsel for respondents 4&5Government Pleader forPanchayat RajCounsel for respondents 6, 7Sri M.Subba Reddy Counsel for respondents 6, 7and 10

22.12.2006

Per G.S.Singhvi, CJ

In this petition filed in the name of public interest litigation, thepetitioners have prayed for issue of a direction to respondent Nos. 1 to3 to take steps for removing what has been described as unauthorizedencroachment of public road comprising of Ac.0.09 cents in SurveyNo.397/2A2, Kanigiri Mandal, Prakasam District.

In the affidavit filed by petitioner No.1 – Vemula Venkataiah, thedeponent has averred that he is the absolute owner and possessor ofhouse bearing No.5/72, 5[th] Ward, Old Kuchipudipalli, Kanigiri Mandal,Prakasam District and other petitioners are residents of the samelocality. He has further averred that there is a public road in SurveyNo.397/2A2 of Kanigiri, which is being used for going to PolerammaTemple and then to Kuchipudi Village. The width of the road is about22 ft. Still further, he has averred that respondent Nos.6 to 11 haveencroached the public road and made unauthorised constructions anddespite representations made to respondent No.3 i.e. MandalRevenue Officer, Kanigiri Mandal, the latter has not taken action forremoving the encroachment. In paragraph 4 of his affidavit, Shri Vemula Venkataiah has referred to Writ Petition No.18567 of2005 filed by respondent Nos.6 and 7, which was disposed of by thelearned Single Judge on 22-8-2005, and averred that after givingnotice to respondent Nos.6 to 11, the official respondents have nottaken action for removing the encroachment.

In the counter-affidavit filed by Shri M.Venkateswarlu, Revenue Divisional Officer, Kandukur, Prakasam District (respondent No.2), ithas been averred that as per Resurvey and Resettlement Register ofKanigiri Village of 1906, Survey No.397 was sub-divided into SurveyNos.397/1, 397/2, 397/3 and Survey No.397/2 was further sub-dividedinto Survey Nos.397/2A1, 397/2A2 and 397/2A3. Of these, SurveyNo.397/2A2 is patta land measuring Ac.0.07 cts. According to him,there is no road on the land comprised in Survey No.397/2A2 and sixdifferent persons are occupying the same.

In a separate counter-affidavit filed by Shri Avula Subba Reddy(respondent No.6) on behalf of respondent Nos.6, 7 and 10, it hasbeen averred that the land comprised in Survey No.397/2A and397/2B has been transferred on more than one occasion and theredoes not exist any road at the disputed site. In paragraphs 2 to 4 of hisaffidavit, Shri Avula Subba Reddy has averred as under:

“2. It is submitted that before giving reply to the affidavitfiled in support of main writ petition few facts are necessary forthe purpose of proper appreciation of this case by this Hon’bleCourt. It is submitted that the 7[th] respondent in the writ petitionis my son. It is submitted that one Sri Thammineni Bodi Reddywas the original owner of the land in Sy.No.397/2A and 397/2Bsituated in 5[th] ward of Kanigiri town, Prakasam District from himSri Roses has purchased the above said lands to an extent ofAc.1-90 cents by way of registered sale deeds. Out of the saidlands, one Ambavarapu Subba Rao has purchased an extent ofabout 23½ of Ankanams (nearly 4 cents) in Sy.No.397/B fromthe said Roses on 14-12-1967 by way of registered sale deedand has constructed a building. The total extent of Ac.397/2B isAc.1-59 cents and out of the said land Ambavarapu SubbaReddy has purchased 23½ ankanams of land by way ofregistered sale and was inducted into possession. Later, on 24-6-2003 the 2[nd] petitioner herein who is 7[th] respondent in thewrit petition has purchased the said 23½ ankanams of landalong with the building by way of registered sale deed from Ambavarapu Subba Reddy. Later, the 2[nd] petitioner herein whois the 7[th] respondent in the writ petition has demolished the saidbuilding.

3. It is further submitted that one Smt.Muneer Bi w/o. Mohd.Rahaman has purchased an extent of 12 Ankanams fromSy.No.397/2A by way of registered sale deed dated 6-10-1965 from Roses and later from Shaik Madar SahebS/o.Silar Saheb along with a tiled house. I have purchased thesaid land from the said Shaik Madar Saheb by way of registeredsale deed on 30-3-2005. Thus, it is clear that by way ofregistered sale deed dt.30-3-2005, I am in exclusive physicalpossession and enjoyment of the property to an extent of 12½Ankanams in Sy.No.397/2A and likewise, my son who is the 7[th]respondent in the petition by purchasing 12½ ankanams of landin Sy.No.397/2A from A. Venkateswarlu by way of registeredsale deed dt.17-2-2000.

4. It is further submitted that one P. Venkata Ramana Reddywhile the matter stood thus one P. Venkataramana Reddy S/o.Rami Reddy, Leader, Praja Front of Kanigiri Town with theconnivance of the writ petitioners herein have hatched up a planto mark a public message through our lands as well as theothers lands who are respondents 8, 9 and 11 herein. The writpetitioners with the connivance of the said VenkataramanaReddy, Mandal Revenue Officer etc. stating that all of us haveencroached upon the Govt. Poramboke land in Sy.No.397 andhave constructed houses causing hindrance to the publicpassage which leads to nearby Poleramma Temple and due tothis illegal constructions, they have to o round about to otherprayers in the temple. Pursuant to their complaint, the thenM.R.O., Kanigiri without notice to the petitioners vide hisproceedings in Rc.A.118/2005 dt.17-8-2005 has directed theconcerned Panchayat Secretary, Kanigiri to visit the lands inSy.No.397/2A2 of the 5[th] ward Kanigiri and take steps for theremoval of unauthorised occupants on the existing roads andrestore the same for the use of the villagers. The said orderswere without notice to us. Hence, myself and the 2[nd] petitioner

herein have filed W.P.No.18567/2005 before the Hon’ble Courtand the same was disposed of by the Hon’ble High Court bydirecting the respondents therein i.e. the M.R.O., Kanigiri,R.D.O., Kandukur and another in directing them to causenecessary enquiry by issuing proper notice to the parties and todecide the issue. The Hon’ble High Court also directed therespondents therein not to dispossess the petitioners from thelands without following due process of law even if it found thatthey are in occupation of Govt. Poramboke land and not inprivate patta land. The present writ petition is filed by VemulaVenkataiah and 33 others against respondents 1 to 3 to declaretheir action in not taking any action against for erectingunauthorised structures in the public road situated inSy.No.397/2A2 to an extent of 0-09 cents in Kanigiri inPrakasam District. In the said writ petition, the Division Benchof this Hon’ble Court by interim orders dt.26-12-2005 waspleased to direct the respondents 1 to 3 herein to cause anenquiry with regard to the matter and submit a report to theHon’ble Court. At the same time, the 3[rd] petitioner herein whois the 10[th] respondent in the writ petition has filedO.S.No.121/2005 on the file of the Junior Civil Judge, Kanigiriagainst P. Ramana Reddy and others who are some of the writpetitioners herein for injunction restraining them from interferingwith his peaceful possession and enjoyment of the propertywhich he has purchased by way of registered sale deed dt.29-12-2002 which is a private patta land situated in Sy.No.397/2B. The learned Junior Civil Judge was pleased to grant temporaryinjunction on 31-5-2005 and the same was made absolute on30-12-2005 and the same is in force till today. Suppressing thesaid fact, the present writ petition is filed. It is pertinent to submithere that questioning the granting temporary injunction C.M.A.No.4/2006 was filed before learned Senior Civil Judge,Kandukur and no orders were passed in the said appealagainst us. Hence, the 3[rd] petitioner who is the 10[th] writpetitioners in the writ petition has purchased a private patta landby way of registered sale deed and not a Govt. poramboke landas alleged.”

The petitioners have not filed rejoinder to the counter-affidavits ofrespondent Nos.2 and 6, 7 and 10.

We have heard Sri M.V.S.Suresh Kumar, learned counsel forthe petitioners, learned Government Pleader for Revenue and Sri M.Subba Reddy, learned counsel for respondent Nos. 6, 7 and 10and perused the record.

Admittedly, two of the private respondents had filedW.P.No.18567 of 2005 with the complaint that Mandal RevenueOfficer, Kanigiri, Prakasam District was seeking to evict them withoutfollowing the due process of law and the said writ petition wasdisposed of by the learned Single Judge on 22.8.2005 with thedirection that the respondents shall take action in the matter of removalof the alleged unauthorized encroachment after giving notice andopportunity of hearing to the petitioners.

The case of the petitioners is that even though the MandalRevenue Officer had issued notice for removal of the encroachmentfrom the public road, no further action has been taken in the matter.

In our opinion, the grievance made by the petitioners that theofficial respondents have not taken steps to remove the encroachmentmade by the private respondents on public road is not well foundedand direction in terms of the prayer made in the writ petition cannot beissued because the petitioners have not controverted the assertioncontained in the counter-affidavits that the land in question is a pattaland and there does not exist any road over it.

Shri M.V.S. Suresh Kumar, learned counsel for the petitionersfairly stated that rejoinder affidavits have not been filed by his clients tocontrovert the case set up by the respondents and submitted thatinstead of adjudicating the disputed questions of fact, the Court mayrelegate the petitioners to the remedy of civil suit.

Conclusion

In our opinion, the request made by Shri M.V.S. Suresh Kumaris reasonable and merits acceptance. Even otherwise, we areconvinced that seriously disputed questions of fact call for adjudicationas condition precedent to the determination of the petitioners’ claimthat private respondents have encroached the public road and suchdisputed questions of fact cannot be decided by this Court in exerciseof power under Article 226 of the Constitution of India.

In the result, the writ petition is dismissed with liberty to thepetitioners to avail appropriate legal remedy by filing civil suit.

As a sequel to dismissal of the writ petition, WPMP No.12288 of2006 filed by the petitioners for interim relief is also dismissed.

G.S.SINGHVI, CJ

C.V.NAGARJUNA REDDY, J