WA/2634/2005 of Sri M. Siva Prasad Vs The District Collector AND Magistrate on 30 December 2005

Per G.S. Singhvi, C.J.

This appeal is directed against order dated 06-10-2005 passed by the learnedSingle Judge in W.P. No.21782 of 2005 whereby he rejected the appellant’schallenge to order dated 25-10-2002 passed by Commissioner, KurnoolMunicipality, Kurnool District (hereinafter described as ‘the Commissioner’) incompliance of the direction given by this Court in W.P. No.11080 of 2002decided on 25-06-2002.

A perusal of the record shows that the writ petition filed by the appellant forissuance of a writ in the nature of mandamus to the Commissioner for removingthe alleged encroachment made by respondent No.3 on the public road wasdisposed of by the learned Single Judge on 25-06-2002 with a direction to theconcerned officer to decide representations dated 14-07-2001 and 28-07-2001and to remove the encroachment, if any, made on the public road.

In compliance of the direction given by this Court, Commissioner consideredthe representations made by the appellant and rejected the same by recordingthe following reasons:

“In this connection, it is hereby informed that the GeneralSecretary, Bhagawan Bala Saibaba Seva Samithi, Kurnoolhas applied to the then Kurnool Municipality in the year 1989along with plans proposal for construction of PrarthanaMandiram in Sy.No.33 of Kurnool (V) near Sri SaibabaTemple, 64 Peta, Kurnool.

As per Rule 5(3) of building rules Andhra Pradesh MunicipalAct, 1965 the same was submitted to the District Collector,Kurnool after obtaining openion (Sic. opinion) of the DeputySuperintendent of Police and Revenue Divisional Officer,K u rn n o l . The District Collector in his proceedingsD.Dis.No.1148/92, Dt:20-07-1992 accorded “No Objection” fortaking up the Construction of prayer hall in Sy.No.33 subject tofulfillment of conditions of the Director of Town and CountryPlanning, A.P., Hyderabad. Accordingly this office forwardedthe proposals along with plans and technical report to theDirector of Town and Country Planning, A.P., Hyderabad fornecessary approval.

The Director of Town and Country Planning, A.P., Hyderabad in Dis.No.6186/93/D3, Dt:29-05-1993 accorded permission forconstruction of Prarthana Mandiram by Bhagavan Sri BalaSaibaba Central Trust and approved the plans in B.P.No.37/93with some usual conditions.

The same plans were approved by

the Kurnool Municipality in B.A.No.5/94/G2, Dt:09-03-1994and construction was completed.

On verification of Street Survey records by the Town Surveyer,(Sic. Surveyor) and Revenue records by the Mandal RevenueOfficer, Kurnool it is to inform that, there is no public streetpassing through the alleged premises in Sy.No.33 toTungabhadra river. The Street Survey No.41 situated nearMoula Miskin Darga. There is a Street No.50 road is existingon western side of the existing premises of Sri Sirdi SaibabaTemple to reach public to Tungabhadra river. On verification ofF.M.B. Sketches of S.Nos.32 and 33 extract of R.S.R. andadangal for Sy. Nos.32 and 33.

The total extent of Ac.1.78 cents in S.Nos.33 is in the name of“Ramabhayamma”. As per Adangal extract the S.No.33 forextent of Ac.1.78 cents in the patta of Bestha Sanjamma. Theenjoyers are A. Venkata Swamy S/o. Narasimhulu with 0.34cents, Chinna Sambaiah S/o. Narasimhulu with 0.33 cents Pedda Sambaiah Ac.0.33 cents with and BalaSaibaba with 0.78 cents. As per sanctioned Master Plan ofKurnool sanctioned in G.O. Ms.No.158 M.A. Dated:26-03-1976there is no 60’-00” wide Master Plan road passing throughS.No.33.

In view of the circumstances explained above as per StreetSurvey and Revenue records there is no public road/pathwayis passing through the S.No.33 of Kurnool (V).

It is classified as patta land as per Revenue Records.

The appellant became aware of the aforementioned decision of theCommissioner sometime in the month of November 2002 when a copy of orderdated 25-10-2002 was produced in the contempt proceedings initiated by theappellant. However, he did not bother to challenge the same for a period ofalmost three years. He filed Writ Petition No.21782 of 2005 on 28[th] September,2005 for quashing order dated 25-10-2002 and for issuance of a mandamus tothe official respondents to remove the alleged encroachment made by respondent No.3.

Learned Single Judge dismissed the writ petition on the ground of delayand laches and also on the ground that the construction made by respondentNo.3 cannot be treated as unauthorized. In the opinion of the learned SingleJudge, the appellant failed to explain the delay of almost three years tochallenge order dated 25-10-2002. Learned Single Judge further held that theconstruction had been raised by respondent No.3 after getting the buildingplans approved from Kurnool Municipality on 09-03-1994 and, therefore, thesame cannot be termed as unauthorized.

We have heard the learned counsel for the parties and are in agreement withthe learned Single Judge that the writ petition filed by the appellant was highlybelated. Although, Article 226 does not prescribe any period of limitation withinwhich a person can apply for issue of an order, direction or writ in the nature ofwrit of Certiorari, Habeas corpus, Mandamus, Prohibition and Quo warranto, inthe last 55 years, the Superior Courts have evolved several self-imposed rulesincluding the one that the High Courts will not entertain belated petition.

In State of Madhya Pradesh v. Bhailal Bhai, the Constitution Bench of theSupreme Court held that even though the provisions of the Limitation Act do notapply to the proceedings under Article 226 of the Constitution of India, a petitionfiled after expiry of period of limitation prescribed for filing civil suit willordinarily be treated as belated and the relief will be denied to the petitioner,unless he is able to satisfactorily explain the cause of delay. The propositionlaid down in that case reads as under:

“The provisions of the Limitation Act do not as such apply to thegranting of relief under Art.226. However, the maximum period fixed bythe Legislature as the time within which the relief by a suit in a civil courtmust be brought may ordinarily be taken to be a reasonable standard bywhich delay in seeking remedy under Art.226 can be measured. TheCourt may consider the delay unreasonable even if it is less than theperiod of limitation prescribed for a civil action for the remedy but wherethe delay is more than this period, it will almost always be proper for theCourt to hold that it is unreasonable.”

After six years, another Constitution Bench of the Supreme Court in Tilokchand Motichand v.

H.B. Munshi held that though there is no upper or lower limit for filing petitionunder Article 226 of the Constitution of India, the Court can decline the reliefeven if the petitioner approaches the Court within the period of limitationprescribed for filing civil suit. Some of the observations made in the majorityjudgment of that case are extracted below:

“Utmost expedition is the sine qua non for such claims. The partyaggrieved must explain satisfactorily all semblance of delay. No periodcan be indicated which may be regarded as the ultimate limit of action forthat would be taking upon itself legislative functions. In England a periodof 6 months has been provided statutorily, but that could be becausethere is no guaranteed remedy and the matter is one entirely ofdiscretion. In India each case will have to be considered on its own facts.Avoidable delay affecting the merits of the claim, will disentitle a party toinvoke the extraordinary jurisdiction.

The question is one of discretion for this Court to follow from caseto case. This Court need not necessarily give the total time to the litigantto move this Court under Article 32, even though he may be withinstatutory limitation. Similarly in a suitable case this Court may entertaina petition even after limitation. It will all depend on what the breach of theFundamental Right and the remedy claimed are and how the delayarose.”

The aforesaid view has been approved by majority of the Larger Bench ofthe Supreme Court in Mafatlal Industries v. Union of India If the appellant’s plea is examined in the backdrop of the above propositions,we do not find any difficulty in concurring with the learned Single Judge that thewrit petition filed by the appellant after almost 3 years of rejection of hisrepresentations was highly belated. As a corollary, we hold that the learnedSingle Judge did not commit any error by non-suiting the appellant on theground that he is guilty of latches.

We are further of the view that the learned Single Judge did not commit anyerror by refusing to nullify order dated 25-10-2002 passed by the Commisionerbecause respondent No.3 had raised construction after obtaining permissionfrom the competent authority and getting the building plan approved by Kurnool Municipality. In any case, the question whether or not respondent No.3 hadmade encroachment on the public road cannot be adjudicated in a petition filedunder Article 226 of the Constitution of India because determination of thatquestion necessarily involves investigation into issue of facts and that exercisecan properly be undertaken by a civil court.

For the reasons mentioned above, the appeal is dismissed.

G.S. SINGHVI, C.J.Date:30-12-2005

R. SUBHASH REDDY, J

PV /svs

HONOURABLE SRI G.S. SINGHVI, THE CHIEF JUSTICE

AND

HON'BLE SRI JUSTICE R. SUBHASH REDDY

WRIT APPEAL (S.R.) No.146685 OF 2005

Between:

M. Sivaprasad, S/o. M. Venkaiah,

aged about 51years, R/o. H.No.64/43 Fort, Near Sai Baba Temple, Kurnool, Kurnool District.

AND

.. Appellant

The District Collector & Magistrate,

::JUDGMENT::

Counsel for the appellant : Mr. R. Ramanjaneyulu Counsel for Respondent No.1 : G.P. for Revenue Counsel for Respondent No.2 : Khaja Moizuddin KrishnaS.C. for Kurnool MunicipalityCounsel for Respondent No.3 : None appeared 30th December, 2005

.. Respondents