WP/19478/2004 of Javvadi Sree Ranga Nayakulu, Vs The District Collector, on 31 December 2004

O r d e r:

By this writ petition, the petitioners seek to challenge the action of the respondents incontemplating to demolish their buildings without conducting any enquiry as pertheir explanations, dated 18-10-2004 submitted to the notices issued by the secondrespondent-Gram Panchayat, dated 16-10-2004, and without paying anycompensation to them, as irregular and violative of principles of natural justice.

The petitioners state that they are owners of the buildings, which are situated withinthe jurisdiction of respondent No.2-Gram Panchayat. When the respondentsattempted to demolish their buildings for the purpose of widening of roads inPenugonda village beyond 50 feet width without following due process of law, it istheir case that they filed W.P. Nos. 16988, 16916, 16954, 16880, 17254, 16997 and19169 of 2004, and that this Court directed the respondents to follow due procedurebefore removing any structure. Pursuant thereto, it is stated that the secondrespondent issued notices under Sections 121 and 268 of Andhra PradeshPanchayat Raj Act, 1994 in Roc. No.171/2004, dated 16-10-2004 calling upon the petitioners to submit their explanations within three days as to why action should notbe taken on their buildings, which were constructed in violation of Rule 20(2) of theAndhra Pradesh Gram Panchayat Land Development (Layout and Building) Rules,2002 framed as per G.O. Ms. No. 67 Panchayat Raj and Rural Development (Pts.IV)Department, dated 26-02-2002. Thereupon, the petitioners claim to have submittedexplanations on 18-10-2004 stating that their houses were constructed 5 to 50 yearsago as per the Building Rules, which existed then, in accordance with the planssanctioned by the then competent authorities, and the present Rules framed in G.O.Ms. No. 67, dated 26-2-2002, having no retrospective effective, should not be madeapplicable to their buildings, and if their buildings are required for road wideningpurpose, compensation as contemplated under Section 59 of the Panchayat Raj Actand as per the provisions of Land Acquisition Act, should be paid to them, andaccordingly requested respondent No.2-Gram Panchayat to enquire into the matter,and withdraw the notices issued by it. Their grievance is that without consideringtheir explanations and without conducting any enquiry into the matter as sought forby them, and without paying any compensation, the respondents are contemplatingto demolish their buildings, which is illegal and irregular. Hence, the writ petition.

Conclusion

Denying the allegations made in the affidavit filed in support of the writ petition, acounter-affidavit has been filed on behalf of the respondents. It is stated that as perG.O. Ms. No. 377 Panchayat Raj Department, dated 12-10-1973, while constructingthe building, one is required to leave at least 1.25 metres of set back site, and afterissuance of G.O. Ms. No.67, dated 26-02-2002, one is required to leave at least 1.50meters of set back site. It is stated that the Gram Panchayat proposed to widen theroad up to 34 feet width, and in the public meeting held on 10-9-2004, all thevillagers gave their consent to demolish their parts of buildings, which are fallingwithin the proposed 34 feet width road. In the process of widening of the road up to34 feet as the existing electrical poles, are required to be shifted back, respondentNo.2-Gram Panchayat has taken a decision to demolish the structures/buildingswhich are falling within the set back area, which was required to be left as per theabove-mentioned G.Os. As the constructions/buildings of the petitioners are fallingwithin the set back area, respondent No.2-Gram Panchayat has issued noticesdated 16-10-2004 to the petitioners calling for their explanation as to why thestructures/buildings falling within the set back area, should not bedemolished/removed, and more so to prevent electrical accidents to the petitionersas well as the general public. Inasmuch as the petitioners gave consent fordemolition of their structures falling within the 34 feet width road, no compensationneed be paid to them. Thus, the respondents pray to dismiss the writ petition.

Heard the learned counsel for the petitioners, the learned Government Pleader forRevenue for respondent No.1-District Collector and the learned Standing Counselfor respondent No.2-Gram Panchayat.

The learned counsel for the petitioner submits that respondent No.2-GramPanchayat at the instance of rival political parties, is seeking to demolish the housesof the petitioners. In fact, there is no necessity to widen the road, for the road is not abusy thoroughfare, and the present width of the road is very much sufficient for easyflow of traffic. He submitted that since the petitioners have on an earlier occasion approached this Court, respondents are bent upon demolishing the houses of thepetitioners.

The learned Government Pleader for Revenue appearing on behalf of respondentNo.1 submitted that the demolition work is being undertaken in respect of all thehouses/buildings which are coming within the set back area and not in respect of thepetitioners’ buildings alone, and therefore, the contention of the petitioners that at theinstance of rival political parties and since they have on an earlier occasionapproached this Court, the respondents are bent upon demolishing their housesalone cannot be sustained.

The learned Standing Counsel for respondent No.2-Gram Panchayatsubmitted that in the public meeting held on 10-09-2004, the villagers of Penugonda,including some of the petitioners, gave consent for widening of the road to 34 feet,and voluntarily agreed to give away the portion of the land falling within the 34 feet.As per G.O. Nos. 377, dated 12-10-1973 and G.O. Ms. No. 67, dated 26-02-2002, one is required to leave set back site of 1.25 and 1.50 metresrespectively, and as a result of road widening, the electrical poles are required to beshifted, those constructions which are coming within the 1.25 and 1.50 metres of setback area, only are sought to be demolished, and accordingly notices were issued,and there is no force of any rival political party in their issuance.

The learned Standing Counsel for respondent No.2-Gram Panchayatproduced the relevant record relating to the proposed road widening. As per G.O.Ms. No. 377, dated 12-10-1973 and G.O. Ms. No. 67, dated 26-2-2002, any personconstructing a building, is required to leave set back area of 1.25 to 1.50 metres.Even if the contention of the petitioners that the provisions of G.O. Ms. No. 67, dated26-2-2002, cannot be made applicable to their constructions, for they were mademuch before its issuance, is accepted, the fact remains that as per the provisions ofG.O. Ms. No. 377, dated 12-10-1973, the constructions were required to be madeleaving a set back area of 1.25 metres. Therefore, irrespective of whether G.O. Ms.No. 67, dated 26-2-2002, is applicable to the petitioners or not, a minimum of 1.25metres of set back area is required to be left by the petitioners as per the provisionsof G.O. Ms. No. 377, dated 12-10-1973. The petitioners except stating that they hadconstructed their houses 5 to 50 years ago, had not stated as to when exactly theyconstructed the houses.

Be that as it may, the difference, if any, in the set back area that is to be left interms of both the G.Os. is only 0.25 metres. It is the case of respondent No.2-GramPanchayat that they proposed to widen the existing road to 34 feet, and that all thevillagers even agreed to surrender their land falling within the 34 feet road, and thisis even evident from the minutes of the public meeting held on 10-09-2004, whereinall the villagers, including some of the petitioners consented to the road widening tothe extent of 34 feet agreeing to surrender their land falling within the road wideningprogramme, and petitioner Nos. 12 and 15 even agreed to withdraw the present writpetition by their statements dated 01-11-2004 and 24-10-2004. As according to Rule 20(2) of G.O. Ms. No. 67, dated26-02-2002, a minimum of 1.50 metres of front set back area is required to be left,and in view of the road widening programme, the electrical poles running along sideof the road, are required to be shifted back, respondent No.2-Gram Panchayat, hadissued notices to persons whose constructions/buildings are coming within the setback area, so as to accommodate the electrical poles, for the safety of the owners ofthe buildings as well as the general public, and no exception can be taken thereto.Since the road widening programme has been taken in public interest, no politicalrivalry can be attributed to the action of respondent No.2-Gram Panchayat in seekingto demolish the structures/buildings that are falling within the front set back area, andthat too for accommodating the electrical poles, and more so when it is stated by thelearned Government Pleader for Revenue that the demolition work is beingundertaken uniformly in respect of all the houses/builders which are falling within theset back area, and not in respect of the buildings of the petitioners alone.

In the above view of the matter, there is no merit in the writ petition, and thesame is accordingly dismissed. This order, however, shall not come in the way ofthe petitioners claiming compensation, if any part of the land owned by them isacquired by the Gram Panchayat for widening the road, and in the event the GramPanchayat does not pay the compensation, it is always open to the petitioner toapproach the competent civil Court and claim compensation. No costs.

Date: 31[st] December, 2004.

KSR

_________________

N.V. RAMANA, J.

To

1 The District Collector, West Godavari District, Eluru.

2 The Secretary, Penugonda Gram Panchayath, Penugonda, Penugonda Mandal, West Godavari District.

3 Two CCS to GP for Revenue, High Court of AP, Hyderabad (OUT)

4 Two CD copies.