WP/24391/2006 of Mullamuri Srinivasa Rao Vs The Kandukur Municipality represented by its on 29 December 2006

Conclusion

ORDER:

This Court ordered notice before admission on 24.11.2006 andan order of status quo was granted for a limited period, which is beingextended.

The Writ Petition is filed by the petitioners for a Writ ofMandamus declaring the action of the respondent in deploying menand machinery and threatening to excavate in their sites covered bysurvey No.234 and demolish the building therein for the purpose ofconstruction of drain as illegal, irregular, arbitrary, without jurisdictionand violative of the provisions of Andhra Pradesh Municipalities Act and the Rules framed thereunder and also offends Articles 14, 21 and300 A of the Constitution of India, and to consequently direct therespondent not to excavate or construct any drain in their site coveredby survey No.234 of Kandukur Municipal limits and not to demolishany portion of their building bearing Assessment Nos.1129 and 1396and pass such suitable orders.

It is stated that the first petitioner and third petitioner are theabsolute owners and possessors of 190 sq. yards of site and asbestossheet shed situated in survey No.234 of Kandukuru Municipality andthey purchased the said property under registered sale deed, dated13.02.2003. It is also stated that the first petitioner and the secondpetitioner are the absolute owners and possessors of 21 2/3 of sq.yards of site situated in same survey number, having purchased thesame under registered sale deed dated 07.04.2001. They constructeda terraced building of two floors in the said site as per sanction plangranted by the respondent. To the East of the said properties, therelies Kandukur – Kovur road.

It is also stated that there lies a drain running Western adjacentto Kovur road from North to Southern direction from survey Nos.273 to272 and further to 271. That drain joins at survey No.271 with maindrain called GAJULA KALVA. The said drain and main drain togethertake turn towards East beneath Kovur road and thereafter proceedEastern along with Kovur road adjacent to present bus stand and joinsthe main drain at Northern adjoining of O.V. Road. The said drain flowhas been in existence since formation of the roads and timesimmemorial. The said drains have been serving the purpose ofdraining out sullage water and rainwater. It is also stated that on21.11.2006, the respondent deployed machinery and workers atGAJULA KALVA drain with a view to excavate the drain running through survey Nos.273, 272 and 271 straight into survey No.234.Having noticed the same, the petitioners requested the respondentand his men to stop excavation work as it would run through thepetitioners’ site and damage their building situated in survey No.234. The respondent-Municipality declared that they had power andauthority to dig drain anywhere, and the petitioners requested therespondent not to divert the flow of drain as the existing drain servesthe intended purpose to its optimum. The respondent did not heed thewords of the petitioners. Thus, the said action is being questioned inthe present Writ Petition.

In the counter affidavit, it is stated that the excavation of drainwas not started in survey No.234, and only after the Mandal Surveyorconducts survey and gives marking, the work of the construction of thedrain will be taken up in the road side. It is also stated that in KovurRoad, there is no drain in front of any house. The said site which thepetitioners are claiming will be decided only after the Mandal Surveyorsurveys and gives marking. It is also stated that in Kovur Road, thereis no drain in front of any house. The sullage water of Western side ofKovur Road has to be routed to main drain at Kanigiri Road. Hence,the present drain is proposed from Boggulasangam to Kanigiri Roadfrom the funds sanctioned by the Government under Rajiv NagaraBata Programme. At present, the rain water from Komitikunta will flowthrough Gajulakaluva into Muthyalakunta situated at North East cornerof RTC Depot and after it is filled, the water will flow intoGundamkatta. As a result, the ground water in the area will rise andthe water level in the surroundings will go up, and borings and openwells will also function well catering the needs of the people. It is alsostated that, as pointed out by the petitioners, no excavation work isstarted in Survey No.234. After the Surveyor gives marking, the drain construction work will be taken up in the road side only. A letter wasaddressed to Mandal Revenue Officer, Kandukur, on 22.11.2006requesting to depute the Mandal Surveyor for the said purpose. Theother allegations are specifically denied. Further, specific stand istaken that the petitioners who had seen the demolition of compoundwall, site outs and pucca rooms presumed that the Municipality isgoing to demolish their buildings also with force and approached thisCourt and obtained interim order. As a matter of fact, the MandalSurveyor has to give markings of road site in front of the petitioners’houses and then only, the construction work will be taken up in theGovernment site.

In the light of the respective stands taken by the parties, it ishowever brought to the notice of this Court that a sketch is placedbefore this Court and it is stated that the Mandal Surveyor had alreadyconducted the survey and had given some markings. Further, it is alsostated that there are certain encroachments of the public road. It isneedless to say that this is a disputed question of fact. However, thewrit petitioners are asserting their rights on the strength of certain saledeeds. It is needless to say that in the light of the respective standstaken by the parties, the respondent has to further follow the dueprocess of law under Section 192 of the Andhra PradeshMunicipalities Act or under other provisions of the Act and the Rulesmade thereunder as the case may be.

With the above observations, the Writ Petition is disposed of. Noorder as to costs.

VV

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(P.S.NARAYANA,J)