HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Writ Petition (PIL) No.244 of 2017
28.02.2018
Koganti Venkata Suryanarayana .Petitioner
The State of A.P. rep., by its Prl. Secretary, Municipal Administration and Urban Development Department, Secretariat, Velag
Counsel for Petitioner: Sri V. Srinivasa Rao
Counsel for respondents: Sri C.V. Mohan Reddy, Learned Senior
Counsel appearing on behalf of the 7th
respondent
GP for Municipal Administration and
Urban Development (AP)
Sri G. Seshadri (SC for MPP ZPP)
D Ramesh
GP for Panchayat Raj Rural
Development (AP)
Sri V. Raghu
<GIST:
>HEAD NOTE:
? Citations:
1) AIR 1998 Karnataka 300
2) 1979 (2) KLJ 327
3) AIR 1954 SC 728
4) AIR 2001 Madras 324
5) 1994 (1) (Mad) LW 470
6) AIR 1995 Madras 179
7) 1996 (2) Mad LW 35 : 1996 AIHC 4494
8) 1972 (1) Madras LJ 4 = AIR 1972 Madras 212
9) 1981 (2) Mad LJ 336
10) AIR 1987 Mad 183
11) 2014 (1) CTC 561
12) 2006 SCC OnLine Bom 796 = (2007) 1 AIR BOM R 619
13) (2001) 4 SCC 734
14) (1976) 1 SCC 671
15) 2009 (6) ALD 590
16) (1993) 2 SCC 703
17) 2010(2) ALD 789 = 2010(3) ALT 252
THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Writ Petition (PIL) No.244 of 2017
ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
This Writ Petition is filed in Public Interest seeking a
mandamus to declare the action of respondents 1 to 6 in not
initiating action for removing the illegal and unauthorized
construction of compound walls and gates by the 7th respondent,
closing public access to the roads in the layout in R.S.
No.498/2(P), 498/3(P), 499/1 & 2, 510/3A, 511(P), 518/1B & 2,
502/1&2 dated 31.01.2004 of Gollapudi village, Vijayawada Rural
Mandal, Krishna District, surrendered to the 5th respondent-gram
panchayat through registered gift deed dated 08.04.2011, and in
not removing the illegal construction made by the 7th respondent
in the lay out open space, as illegal, arbitrary and
unconstitutional. A consequential direction is sought to
respondents 1 to 6 to remove the constructed walls and gates
which had resulted in public access to the layout roads being
closed, and to remove the illegal constructions made by the 7th
respondent in the layout open spaces.
Facts, to the limited extent necessary, are that the 7th
respondent society purchased Ac.29.4 cts in different survey
numbers of Gollapudi village, Vijayawada Rural Mandal, Krishna
District, and applied to the then Vijayawada Guntur Tenali and
Mangalagiri Urban Development Authority for grant of permission
to construct a row shopping complex, consisting of ground and
first floor in the said land, and permission was accorded vide
proceedings dated 31.01.2004. This complex was named as the
Mahatma Gandhi Wholesale Commercial Complex, with each shop
of a plinth area of 934 square feet in the plot area of 149.33 square
yards. An extent of Ac.2.90 cts was earmarked for open spaces,
and Ac.2.40 cts for parking. The 7th respondent gifted all the
layouts roads and open places, vide registered gift deed No.1555 of
2011 dated 06.04.2011, to the 5th respondent Gollapudi
Grampanchayat for public use. Consequently, all roads and open
places in the 7th respondent shopping complex stood vested in the
5th respondent as its absolute custodian, and was meant for public
use of ingress and egress. Thereafter the 7th respondent
constructed compound walls and gates closing all public roads,
restricting access of the general public to the layout roads. In
addition a building was constructed, in one of the open public
places, for commercial use.
The petitioner, an elected member of Ward No.13 of
Gollapudi Grampanchayat, claims to be actively involved in
undertaking development activities in the subject village, and to be
in the forefront in putting forth public grievances before the
authorities concerned. He also claims not to have any personal
interest in the matter, and that the Writ Petition is filed only in the
interest of the people of Gollapudi village, the general public, and
people residing in surrounding colonies of Mahatma Gandhi
Wholesale Commercial Complex. The petitioner alleges that a
second floor was illegally constructed over the permitted ground
and first floor; the general public was facing inconvenience
because of closure of these roads; despite higher officials having
directed the 5th respondent several times to remove the walls and
gates, they have not removed them so far; and removal of the walls
and gates erected by the 7th respondent, closing public access to
the layout roads vested in the 5th respondent, was necessary to
prevent misuse of public roads and open spaces in the layout.
While alleging that the 7th respondent and its members had
constructed the shops in the complex in gross violation of the
sanctioned plan, and they had not left the parking space as shown
in the layout, the petitioner submits that the lay out was granted
with 40 feet and 30 feet wide main roads, and 20 feet wide internal
roads between the shops; however the shops were constructed, on
the boundary of the layout, without maintaining the open space
earmarked in the sanctioned layout; the subject sanctioned layout
is surrounded by three colonies which had developed long ago;
after construction of shops, the 7th respondent had closed the lay
out roads with brick walls and, in some places, they had erected
gates restricting the ingress and egress of the general public; they
had thereby preventing usage of said road by the residents of the
surrounding colonies; even the gates were being maintained under
lock and key by the management of the 7th respondent; there are
two bus stops, and two Nationalised bank branches within the
shopping complex area itself; hundreds of people, living in the
surrounding residential colonies, have their accounts in these
bank branches; RTC buses ply through the shopping complex area
to the housing board colonies; the State Government took up
construction of a flyover near Indrakeeladri temple; consequently
traffic was completely blocked on the National Highway, and
diverted through the newly developed by-pass road to reach
Vijayawada town; residents, living on one side of the commercial
complex of the 7th respondent, can reach the by-pass road only
through the Commercial Complex area, otherwise they have to take
a round about of around 4 to 7 kilometers to reach the same
destination; and the public at large are suffering in view of the
compound walls and gates constructed by the 7th respondent
closing/preventing public access to the public roads within the
layout.
According to the petitioner, the Gollapudi area falls within
the limits of the 4th respondent which has absolute authority in
dealing with illegal and unauthorized construction under the
APCRDA Act; the 4th respondent had initiated action for removal of
the unauthorized construction in several areas; after noticing the
illegal construction of a second floor, by several members of the 7th
respondent, the 4th respondent had issued orders vide proceedings
dated 19.05.2017, under Section 116(1) of the APCRDA Act,
directing further construction to be stopped; a copy of the said
letter was marked to the 5th respondent, and the District
Panchayat Officer, Krishna District; however, no further action was
initiated thereafter resulting in completion of the illegal
constructions and its being put to use; on information being
sought, under the Right to Information Act, the 5th respondent-
gram panchayat, vide letter dated 24.12.2015, stated that the
roads in the Mahatma Gandhi Commercial Complex, Gollapudi
were public access roads belonging to Gollapudi Grampanchayat,
and action would be taken for removal of the constructed walls
which had resulted in closing access to these roads to the general
public; however the 6th respondent, in collusion with the 7th
respondent, had not initiated any action for its removal; the
general body of the 5th respondent had passed a resolution on
09.12.2016 directing the 6th respondent to initiate action for
removal of the compound walls and gates which restricted access
to the roads; and, though the petitioner had submitted several
representations thereafter, no action was taken.
The petitioner further stated that Sri A.V. Krishna Rao had
filed an application before the 4th respondent seeking permission;
officials of the 4th respondent had inspected the 7th respondent
complex, and had observed that the 7th respondent had
constructed compound walls across all the 50 feet roads which had
already been gifted to the 5th respondent; Sri A.V. Krishna Rao and
others had filed W.P. No.18639 of 2016 and W.P. No.34358 of 2016
seeking a direction to remove the wall; both the Writ Petitions are
pending adjudication; mere pendency of the Writ Petitions is not a
bar to implement the law; there are no orders in force preventing
action being taken to remove the walls and the gates constructed
by the 7th respondent; in their counter-affidavit, filed in W.P.
No.18639 of 2016 and W.P. No.34358 of 2016, respondents 4 and
5 had admitted that the 7th respondent had closed the public roads
by constructing walls and gates, but they had not initiated any
action to remove the same so far; the 7th respondent had closed all
lay out roads either by constructing walls or putting up gates,
keeping them under lock and key, and preventing the general
public from accessing the said roads for their use; all the roads
and open places vest in the local authority, and are meant for
general public use; more over the layout was not sanctioned as a
gated community, and not even a compound wall was permitted
around the complex; the 7th respondent had constructed a
compound wall all around the shops illegally without obtaining
permission from the authorities; the 6th respondent, (the executive
officer of the 5th respondent) had colluded with the 7th respondent;
because of his inaction, the public at large were suffering
inconvenience, more so because the National Highway was closed
for construction of a flyover at Indrakiladri temple.
In the counter-affidavit, filed on behalf of the 4th respondent,
it is stated by the Director, Development Promotion Wing of AP
CRDA, Vijayawada that they had granted permission to the 7th
respondent for construction of 489 row shops consisting of G+1
upper floor in an extent of Ac.29.0475 cts in different survey
numbers; the total plot area was 489 x 149.33 square yards or Ac.
15.09 cts; the total open space was Ac.2.905 cts; the parking area
was Ac. 2.40 cts; the lay out had 60 feet roads, 40 feet roads and
30 feet wide roads; the approach road is the 200 feet wide
Vijayawada by-pass road, and the 100 feet wide ZDP road; his
office had informed the 7th respondent, vide letter dated
16.05.2010, to hand over the roads and open spaces to Gollapudi
Gram Panchayat; accordingly, the 7th respondent had handed over
the roads and open spaces to the Gollapudi Gram panchayat vide
registered gift deed No.1555/2011 and 1019/2011 which were
under the possession of the panchayat; the same was confirmed by
the Panchayat Secretary, Gollapudi on 24.12.2015; the 7th
respondent had requested the 4th respondent not to grant any
permission to Gollapudi Grampanchayat or anybody to lay roads,
or to interfere with the Mahatma Gandhi whole sale commercial
complex in any manner, since the District Collector, Municipal
Commissioner and the Commissioner of Police had directed the
wholesale commercial dealers to shift their wholesale business to
the outskirts of Vijayawada town, as their earlier location was
causing traffic problems; the 7th respondent claimed that, in
obedience to their directions, they had obtained sanction, vide
layout dated 31.01.2004, to construct a complex at their own cost;
they had laid roads on the ground, and had developed other
infrastructure works around the complex at the exclusive cost and
expense of the members of the commercial complex; the 4th
respondent has not granted permission for construction of a
compound wall all around the commercial complex of the 7th
respondent; they had also not granted any permission to construct
a compound wall obstructing entry to the general public to the
gram panchayat road; they had informed the Panchayat Secretary
on 15.02.2016 to remove the compound wall which was
obstructing entry to the site from the existing 40 feet wide gram
panchayat road; the 4th respondent had requested the District
Panchayat Officer, vide letter dated 04.07.2016, to direct the
Panchayat Secretary to take immediate action for removal of the
compound wall (which was obstructing public access to the roads),
as also the structures constructed by the society in the lay out
public open space, to avoid further legal complications; they had
issued a show cause notice, under Section 115(1) of the APCRDA
Act, 2014, which was served on 19.05.2017 upon 18 shop
members; these shop owners were given 7 days time to show cause
why the unauthorized constructions should not be removed; Sri
A.V. Krishna Rao had submitted plans for construction of a
commercial complex consisting of Cellar for parking+G+4 upper
floors; the site is earmarked for Commercial use as per the
Gollapudi Zonal Development plan; the proposal was also to secure
access from the three 40 feet wide roads on the Northern side, and
the 33 feet wide road on the eastern side of the site; these three 40
feet wide roads belong to the Gollapudi Gram panchayat,
consequent upon the 7th respondent having gifted it vide registered
gift deed dated 08.04.2011; it was found that these three roads are
closed at the end of the site of Sri A.V. Krishna Rao by
constructing a compound wall; the Panchayat Secretary had
issued a certificate, certifying that the roads were public roads
belonging to the Gollapudi Gram panchayat, and the Gram
panchayat would take up the responsibility of
removal/demolishing the wall within its limits which hindered
public access; and the present proposal, for construction of a
commercial complex, would be considered only after removal of the
compound wall by the Gram panchayat which was obstructing
entry, to the site under reference, from the existing 40 feet wide
access road.
In the counter-affidavit filed by the 7th respondent, the
bonafides of the petitioner is put in issue. It is stated that the 7th
respondent, a society registered under the Societies Act, has
around Rs.60 crores turnover every day; they are paying more than
Rs.14 lakhs as House tax and professional tax; the petitioner was
the brother-in-law of Sri A.V. Krishna Rao - the first petitioner in
W.P. No.18639 of 2016 and W.P. No.547 of 2017; the petitioner
had high handedly got demolished the compound wall of the
society on the intervening night of 20/21.03.2016 for which a
complaint was given to the Bhavanipuram police station which was
registered as Cr. No.160 of 2016 on 21.03.2016; and the
demolished part of the compound wall was reconstructed.
With regards the compound wall, the 7th respondent would
submit that there was a gap of 3 feet to 5 feet between the shops
and the compound wall; the compound wall was constructed even
before construction of the complex leaving one feet of the societys
land outside the compound wall; the compound wall was
constructed in 2002 even prior to approval being granted for the
lay out; they have not closed any road having connectivity either
with the panchayat or the municipal road or the National High
way; the only gate on the southern side, and one of the two gates
on the northern side, were closed as per the advice of the police,
for keeping trained men at the gates for security reasons; even for
these two gates, the 7th respondent had constructed a gate within
the gate for access of pedestrians and two wheelers; residents
living on one side of the commercial complex, whose roads are
connected to the roads of the commercial complex, are passing
through these roads without any obstruction; the allegation, that
public access was prevented, is incorrect; a 750 square feet
structure, which was used as their office at the time of
construction of the buildings in the lay out, is located in the place
gifted to 5th respondent adjacent to the southern side gate of the
lay out; instead of demolishing the structure, the 7th respondent is
using it for the purpose of a canteen, as mentioned in the gift deed
executed by them in favour of the 5th respondent gram panchayat;
taxes are being paid on the subject premises, and the rent received
therefrom is being used for maintenance of public utilities like
providing public water facility etc; and they have also constructed
a bus shelter near the canteen.
According to the 7th respondent, Sri A.V. Krishna Rao, who
was the owner of the land on the southern side of the complex, and
who has access to his land through a 33 feet wide road on the
Northern side of his land, also has access through Mahender
Nagar and Ambedhkar Nagar; the internal roads, adjacent to the
plots of Sri A.V. Krishna Rao and others, are only 20 feet wide
roads; the remaining 20 feet area, adjacent to these 20 feet roads,
is earmarked for parking; these 20 feet wide internal road are not
viable for traffic; there is only one 40 feet road in the lay out which
is connected, on the eastern end, to the 100 feet Venkateswara
foundry road, and is connected on the western end to the 40 feet
road in the Venkateswara colony; there is no other 40 feet road in
the lay out; the petitioner is the brother-in-law of Sri A.V. Krishna
Rao, and the relief sought in this Writ Petition is similar to that of
W.P. No.18639 of 2016; and they were not preventing the general
public from accessing the layout roads wherever the lay out roads
are connected to the Municipal panchayat roads or the National
Highway.
In his affidavit, filed in reply to the counter-affidavit filed by
the 7th respondent, the petitioner submits that the 7th respondent
did not obtain permission for construction of a compound wall; the
sanctioned layout does not disclose any compound wall to be in
existence before the date of application seeking layout sanction;
the allegation that the compound wall was constructed in the year
2002 is false; existence of shops in the layout does not authorise
the 7th respondent to close the layout roads with walls and gates;
as per the sanctioned layout, all roads are open to the adjacent
localities and are public roads; in every city there are several
localities, with thousands of shops and business establishments,
in which roads, meant for public use, are open to one and all; the
7th respondent had also not maintained the required setbacks as
per the sanctioned layout; the assertion that there was a gap of
three to five feet between the shops and the compound wall was
false; the 7th respondent has admitted that they had erected three
gates closing the roads; as per the sanctioned plan there are 20
roads connecting places outside the layout; of these 20 roads, the
7th respondent erected six gates closing public access; the
remaining 14 roads were completely closed on a wall being
constructed thereupon; the plan, enclosed to the affidavit,
discloses the areas where the roads have been closed either with
walls or with gates; the allegation that the gates were closed as per
the advice of the police, for keeping the trained men at the gates
for security reasons, is false; the advice of the police has been
invented for the first time in the counter-affidavit; in the earlier
Writ Petition filed by the 7th respondent, there is no mention of any
advise having been given to them by the police; in any event, the
police officials have no power to advice, and direct closure of public
roads preventing access thereto to the general public; the 7th
respondent admits having leased out the premises for running a
hotel; running of a hotel is not a public purpose; in public places,
earmarked in the layout, greenery has to be developed, and no
construction can be made thereupon; the CRDA has filed a
detailed counter-affidavit in W.P.No.547 of 2017 stating that they
did not grant permission to the 7th respondent to construct a
compound wall all around the commercial complex, nor had they
granted permission, for construction of a compound wall,
obstructing entry to the general public; inspite of several directions
by the CRDA, and by the third respondent, the 6th respondent,
acting in collusion with the 7th respondent, had not initiated any
action; it is the duty of respondents 5 and 6 to comply with the
directions of respondents 3 and 4; though show-cause notices were
issued by the 4th respondent, no action was taken; out of the 20
roads which connect the 7th respondent layout to localities outside,
gates were erected at six places and are being kept under lock and
key; the other 14 roads have been completely closed with
compound walls being constructed thereupon; the 7th respondent,
having gifted these roads and open places to the 5th respondent,
cannot be heard to contend that they would not open the roads for
public use; public roads and foot paths are not supposed to be
obstructed by anybody in any form; respondents 2 to 6 had failed
in their duty to implement the law, and had turned a blind eye
towards the issue; along with the writ petition, they had enclosed
photographs of the compound wall with a huge iron-gate within
which there is a small gate through which two wheelers and
pedestrians can pass, and not four wheelers or bigger transport
vehicles; and all around the 7th respondent complex, other than
those places where gates have been erected, the entire area is
closed by compound walls.
With regards the allegation that the Writ Petition as filed is
not in public interest, the petitioner states that he was born and
brought up in Gollapudi village; there are more than 100 families,
of his close relatives, living in the said village; the 7th respondent
complex was near his house; he was the Ward Member of the
locality wherein the 7th respondent shopping complex was located;
being a public representative of the locality, it was his duty to
attend to the specific grievance of members of the locality, and
grievances of the general public living in the entire area; he had
mentioned, in his writ affidavit, regarding the Writ Petitions filed by
Sri A.V. Krishna Rao on the one hand, and the 7th respondent on
the other; he had also enclosed the Writ affidavits and counter-
affidavits filed by the respondents; he has not suppressed any
facts; in the Writ Petition filed by Sri A.V. Krishna Rao, removal of
only one wall, which restricts access to his site from the layout
road, was sought; in the present Writ Petition, filed in public
interest, the petitioner prays for opening of all the layout roads to
public access; with regards Crime No.160 of 2016, filed by the 7th
respondent, the complaint itself alleges that the Vice-President of
the Grampanchayat had got the compound wall demolished, and
the petitioner was standing near the same; he had forgotten about
the police having obtained his signature, and did not inform the
same to his counsel when the writ affidavit was drafted; this was
purely a mistake for which he tendered apology; there was no
personal animosity or dispute between him and any of the
members of the 7th respondent; and if the layout roads are made
open to the general public, residents of all the surrounding
colonies would be benefited on securing free access to these roads.
It is not in dispute that the 7th respondent-Society was
accorded sanction by the then Vijayawada-Guntur-Tenali and
Mangalagiri Urban Development Authority, vide proceedings dated
31.12.2014, for a lay out and to construct a row shopping complex
thereon. It is also not in dispute that the 7th respondent had, as
required by law, gifted all the subject lay out roads and open
spaces in favour of the 5th respondent gram panchayat, by
registered gift deed No.1555 of 2011 dated 06.05.2011 and
No.1019 of 2011, for public use; the sanctioned lay out consisted
of 20 roads connecting places outside the lay out; over these 20 lay
out roads, the 7th respondent had constructed compound walls
over 14 of them, and had erected gates over the remaining six,
preventing/restricting public access thereto; and they had also
used the open spaces, in the sanctioned lay out, for construction of
their office which was later converted to a canteen and leased out
to a third party. The contention, urged on behalf of the petitioner
by Sri V. Srinivasa Rao, Learned Counsel, is that, since the subject
20 roads within the aforesaid sanctioned lay out belong to the 5th
respondent-Gram Panchayat, and are meant for public use, the 7th
respondent could neither have constructed compound walls over
14 of such roads, nor could they have erected gates over the
remaining six.
Bearing in mind the fact that all roads and public spaces in
the subject lay out were gifted by the 7th respondent in favour of
the 5th respondent gram panchayat vide gift deed No.1555 of 2011
dated 08.04.2011 and 1019 of 2011, let us take note of the
relevant provisions of the A.P. Panchayat Raj Act, 1994, and the
A.P. Capital Region Development Authority Act, 2014. Section 53
of the Andhra Pradesh Panchayat Raj Act, 1994, (hereinafter called
the 1994 Act) relates to vesting of public roads in gram
panchayats and, under sub-section (1) thereof, all public roads in
any village, other than National Highways, State Highways and
roads vesting in Zilla Parishad or Mandal Parishad, shall vest in
the gram panchayat together with all pavements, stones and other
materials thereof, all works, materials and other things provided
therefor, all sewers, drains, drainage works, tunnels and culverts,
whether made at the cost of the gram panchayat fund or otherwise,
in along side or under such roads, and all works, materials and
things appertaining thereto. Under the proviso thereto, the gram
panchayat shall take steps to remove encroachments on, and
prevent un-authorised use of, any road other than a National
Highway passing through the gram panchayat. Section 98 of the
1994 Act relates to removal of encroachment and, under sub-
section (1) thereof, the executive authority may, by notice, require
the owner or occupier of any building to remove any encroachment
or obstruction in or over any public road vested in such gram
panchayat. Section 101 relates to prohibition against making
holes and causing obstruction in public roads and, under sub-
section (1) thereof, no person shall make a hole or cause any
obstruction in any public road vested in a gram panchayat except
with the previous permission of the executive authority, and
subject to such conditions as the executive authority may impose.
Section 101(3) stipulates that, if any person contravenes the
provisions of Section 101, the executive authority shall fill up the
hole or remove the obstruction and may recover the cost of so
doing from such person.
Section 2(5)(a) of the A.P. Capital Region Development
Authority Act, 2014 (for short the 2014 Act) defines building to
include any structure or erection, or a part of a structure or
erection, which is intended to be used for residential, industrial,
commercial or any other purposes, whether in actual use or not.
Section 114(1) stipulates that any person who undertakes or
carries out development of any land or building, or institutes or
changes the use of any land or building, in contravention of the
master plan or infrastructure plan or area development plan or any
plan sanctioned under the Act (a) without permission as required
under the Act or (d) in-contravention of any permission which has
been duly modified, shall be punishable with imprisonment for a
term which may extend to three years or with a fine equivalent to
twenty percent. Section 115(1) of the 2014 Act stipulates that,
where any construction of a building has been commenced or is
being carried on or has been completed as indicated in Section
114(1), the Commissioner may, subject to the provisions of Section
115, serve on the owner a provisional order requiring him to
demolish such unauthorised construction, within the specified
period, to bring such construction of the building or work in
conformity with the provisions of the Act or as per the sanctioned
development permission or Rules or bye-laws made thereunder.
In terms of Section 53(1) of the 1994 Act all public roads,
within the territorial limits of a Gram Panchayat, are vested in it,
and, in terms of Sections 98 and 101 thereof, the Gram Panchayat
is obligated to remove encroachments, and prevent unauthorised
use of any of the roads which belong to it. Neither was the 7th
respondent accorded permission, either by the 5th respondent-
Gram Panchayat or by the 4th respondent, to construct compound
walls and erect gates, nor do the 1994 Act and the 2014 Act
provide for any such permission to be granted. Construction of
compound wall over 14 roads in the lay out, and erection of gates
in the remaining six, all of which are meant to connect areas
outside the lay out, has resulted in prohibition/restriction of the
use of these roads, which belong to the 5th respondent-Gram
Panchayat, by the public at large.
Public streets and roads vest in the State/local body, and
the State/local body holds them as a trustee on behalf of the
public. (Dr. Nitin G. Khot v. State Commandant, Belgaum ;
Sujay Advertising v Union of India ). As public streets vest in
the State/local body, every member of the public has a right to use
the same subject to the rights of others and the law regulating
traffic etc. (Dr. Nitin G. Khot1; Saghir Ahmad v State of Uttar
Pradesh ). There is a duty cast upon the State/local bodies to
maintain roads in a proper condition. Whenever it is brought to
their notice that there are encroachments on public roads and
streets, it is their duty to act and take steps to remove the same.
(D. Mallikarjuna Rao v. Member Secretary ; Natarajan O.N. v.
The Municipal Council, Turaiyur ; Janarthanam, KVK v. State
of Tamil Nadu ; The Commissioner, Panruti Municipality,
Panruti v. Sri Kannika Parameswari Amman Temple ;
Damodara Naidu v. Thirupurasundari Ammal ; and Govinda
Asari v. The Kancheepuram Municipality, rep. its
Commissioner ). If any obstruction is caused over the roads/road
margin, the person entitled to have such access can enforce that
right. (K.V.K. Janardhanam KVK6; Bharathamatha Desiya
Sangam Madha-varam v. Roja Sundaram ).
Public roads are public property, and these roads are
constructed for a public purpose. It is only for the welfare and
betterment of the public, that all such developmental activities are
undertaken. People should be allowed to enjoy the benefits of such
development. Public roads can be used only for the travelling needs
of the public. It cannot be converted for other collateral purposes.
(P.N. Srinivasan v. The State of Tamil Nadu ). If, in respect of
any street, public has a right of way, it is a public street. The
public way or public road or public street is a way over which their
exists a public right of passage. (Mishrimal Jethmal Oswal v.
Municipal Council of Lonavala ). The vesting of the public street
in a local body is only for the purpose of maintaining it properly as
a public street. (Govinda Asari9). Vesting of the public street in
it, does not confer any power even on the local body to treat it as
its private property, nor does it imply a power to cause obstruction
to the use of the public street. (Govinda Asari9).
While admitting that compound walls were constructed, and
gates were erected over these roads, Sri C.V. Mohan Reddy,
Learned Senior Counsel appearing on behalf of the 7th respondent,
would submit that, since some of these gates have an inner-gate
through which pedestrians and two wheelers can pass, access to
the general public cannot be said to have been restricted. As the
subject roads belong to the 5th respondent-gram panchayat, and
not to the 7th respondent, the latter has no right whatsoever to
construct compound walls over public roads and erect gates
thereupon. Even according to the 7th respondent, four wheelers
cannot enter the lay out as the gates are under lock and key.
Ingress and eggress into this area is partly prohibited (because of
compound walls having been constructed over 14 of the layout
roads), and partly restricted (because of erection of gates over the
remaining six layout roads), by the 7th respondent; and the general
public have thereby been denied free access thereto.
As public roads and open spaces, in sanctioned lay outs
belong to the Gram Panchayat under Section 53(1) of the 1994 Act,
and as the 7th respondent, in compliance with the law, has gifted
the public roads and open spaces to the 5th respondent-Gram
Panchayat, their action, in constructing compound walls and
erecting gates, over these roads in the sanctioned lay out is
evidently illegal. The justification put forth by Sri C.V.Mohan
Reddy, Learned Senior Counsel, is that the 7th respondent has
been paying huge amounts as house-tax and profession tax; and
the only gate on the southern side, and one of the two gates on the
northern side, were erected, as per the advice of the Police, as a
measure of security.
The members of the 7th respondent are bound to pay house-
tax and profession tax in accordance with the provisions of the
1994 Act. Payment of such taxes does not confer any right upon
them to block roads permanently by constructing compound walls
thereupon, or restricting ingress and eggress of the general public,
by erecting gates on the public roads, and in keeping them under
lock and key. Neither has any documentary evidence been placed
before us to show that the gates were erected on the advice of the
police officials nor has any provision of law been brought to our
notice which confers any power on the police officials to permit the
7th respondent to restrict access, to the general public, over these
public roads which belong to the Gram Panchayat. Closure of
public roads, on walls being constructed or gates erected across
them, by any individual or group of persons, under pre-conceived
threat perceptions, would not only violate the law (in the present
case Sections 53, 98 and 101 of the 1994 Act and Section 114(1) of
the 2014 Act), but would also throw traffic in the area completely
out of gear, and result in needless and avoidable traffic congestion
in other areas.
The case of the 4th respondent, as is evident from their
counter-affidavit, is that, while the roads were gifted to the 5th
respondent-Gram Panchayat vide registered gift deed No.1555 of
2011, the open spaces were gifted to the 5th respondent-gram
panchayat vide registered gift deed No.1019 of 2011; the 4th
respondent had informed the Panchayat Secretary on 15.02.2016
to remove the compound wall which was obstructing entry to the
lay out; the 4th respondent had also requested the District
Panchayat Officer, vide letter dated 04.07.2016, to direct the
Panchayat Secretary to take immediate action for removal of the
compound wall (which was obstructing public access to the roads),
as also the structures constructed by the society in the lay out
public open space; and a show-cause notice was issued, under
Section 115(1) of the 2014 Act, on 19.05.2017 calling upon the
owners of the shops in the 7th respondent layout to show cause
why the unauthorised constructions should not be removed.
While the 4th respondent has issued notices, and has advised
the Gram Panchayat, it is evident that the 5th respondent-Gram
Panchayat has not taken any action to have the illegal and
unauthorised construction, made by the 7th respondent over public
roads and open spaces, removed in accordance with law. As
construction of compound walls and erection of gates over public
roads, which belong to the Gram Panchayat, is illegal, the 5th
respondent-Gram Panchayat ought to have taken steps to have the
compound walls demolished, and the gates removed, as they
prevent/restrict access to the general public to the use of these
roads, and to put the public spaces to use, in accordance with law.
While the action of the 7th respondent is undoubtedly illegal,
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on
behalf of the 7th respondent, has put the bona-fides of the
petitioner in issue. It is contended by the Learned Senior Counsel
that the petitioner is the brother-in-law of one Sri A.V.Krishna Rao,
who is seeking to construct a building in the area adjacent to the
sanctioned layout, for which one of the means of access is through
the roads in the subject layout. While the petitioner has disclosed
all these facts, in the affidavit filed by him in support of the Writ
Petition, it is only the complaint given by the 7th respondent,
against them to the Bhavanipuram Police Station registered as
Crime No.160 of 2016 on 21.03.2016, which has not been referred
to therein. Sri V.Srinivasa Rao, Learned Counsel for the petitioner,
would submit that the petitioner, in the reply affidavit filed by him,
has stated that, by over-sight, this fact was not stated in the writ
affidavit. In his reply affidavit, the petitioner has tendered his
apology for his failure to do so and has also pointed out that, even
in the complaint, the allegation was that the Vice-President of the
Gram Panchayat had got a part of the compound wall demolished,
and the petitioner was standing near the same; and not that the
petitioner had earlier demolished a part of the compound wall.
Grant of relief under Article 226 of the Constitution is based
on the existence of a right in favour of the person invoking the
jurisdiction of the High Court. The exception to the general rule is
in cases where the writ applied for is a writ of habeas corpus or a
quo warranto or a writ filed in public interest, (Vinoy Kumar v.
State of UP ), where the rule of locus standi is relaxed. (Jasbhai
Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed ; Ahmed
Ehhtesham Kawkab v. Government of India ). As this Writ
Petition has been filed in public interest, alleging violation of the
provisions of the 1994 Act and the 2014 Act by the 7th respondent,
the question, whether any right of the petitioner has been violated
justifying his invoking the jurisdiction of this Court, is wholly
immaterial. Even otherwise, the petitioner, like any other member
of the general public, has a right to use public roads and his right,
along with all those who live in surrounding areas, to use the
public roads, in the sanctioned lay out, has been denied as a result
of the 7th respondent having constructed compound walls over 14
of the roads, and in erecting gates over six others.
It is no doubt true that Sri A.V. Krishna Rao has invoked the
jurisdiction of this Court seeking removal of the compound wall
over one of the roads in the lay out which restricts access to his
site from the lay out road, and the said Writ Petitions are pending.
As public roads vest in local bodies (in the present case, the 5th
respondent-gram panchayat) no person, be it the petitioner or the
7th respondent or Sri A.V. Krishna Rao, can claim, as of right, that
they can close public roads, constructing walls across them or
erecting gates thereupon, as that would prevent/restrict public
access to these public roads. We see no reason to deny the
petitioner, the relief sought for in this Writ Petition filed in Public
Interest, merely because the Writ Petitions filed by Sri A. Krishna
Rao and the 7th respondent are pending on the file of this Court.
The petitioner claims that he was born and brought up in
the very same village, around 100 families of his close relatives are
living in the village, he is a ward member of the locality, and is,
therefore, entitled to expouse the cause of the general public. It is
unnecessary for us to examine these contentions, or even the
bonafides of the petitioner, as if any other member of the public, to
whom the oblique motive and conduct alleged against the
petitioner in the present case, cannot be attributed, could file such
a writ petition for the same relief, this disability on the ground of
oblique motive and conduct would not attach to him. This being
so, the relief claimed by the petitioner in the writ petition being in
the nature of a class action, without seeking any relief personal to
him, ought not to be dismissed merely on this ground, since this is
a matter of public concern and relates to the good governance of
the State/local body itself. (Dr. Kashinath G.Jalmi v. Speaker ;
Ahmed Ehhtesham Kawkab15; M/s. Campaign for Housing and
Tenural Rights (CHATRI) v. Government of Andhra Pradesh ).
We see no reason, therefore, to non-suit the petitioner on this
ground or to refuse to grant him the relief sought for in the Writ
Petition, as it is evident that the 7th respondent had illegally and
unauthorisedly constructed compound walls over 14 of the roads
in the subject lay out, and has erected gates over six others,
prohibiting/restricting access, to the general public, to the use of
these public roads.
The 7th respondent shall, within four weeks from today,
remove the encroachments on the public roads and the open
spaces in the sanctioned lay out, which they had earlier gifted in
favour of the 5th respondent gram panchayat. In case the 7th
respondent fails to do so, both the 5th respondent Gram Panchayat
and the 4th respondent shall have the compound walls raised and
the gates erected, over these public roads in the sanctioned layout
removed, and the construction raised in open spaces demolished,
within four weeks thereafter.
The Writ Petition is, accordingly, disposed of. Miscellaneous
Petitions pending, if any, shall also stand disposed. There shall be
no order as to costs.
_________________________________
RAMESH RANGANATHAN, ACJ
_______________________________
GUDISEVA SHYAM PRASAD, J.
Date: 28-02-2018.
Writ Petition (PIL) No.244 of 2017
28.02.2018
Koganti Venkata Suryanarayana .Petitioner
The State of A.P. rep., by its Prl. Secretary, Municipal Administration and Urban Development Department, Secretariat, Velag
Counsel for Petitioner: Sri V. Srinivasa Rao
Counsel for respondents: Sri C.V. Mohan Reddy, Learned Senior
Counsel appearing on behalf of the 7th
respondent
GP for Municipal Administration and
Urban Development (AP)
Sri G. Seshadri (SC for MPP ZPP)
D Ramesh
GP for Panchayat Raj Rural
Development (AP)
Sri V. Raghu
<GIST:
>HEAD NOTE:
? Citations:
1) AIR 1998 Karnataka 300
2) 1979 (2) KLJ 327
3) AIR 1954 SC 728
4) AIR 2001 Madras 324
5) 1994 (1) (Mad) LW 470
6) AIR 1995 Madras 179
7) 1996 (2) Mad LW 35 : 1996 AIHC 4494
8) 1972 (1) Madras LJ 4 = AIR 1972 Madras 212
9) 1981 (2) Mad LJ 336
10) AIR 1987 Mad 183
11) 2014 (1) CTC 561
12) 2006 SCC OnLine Bom 796 = (2007) 1 AIR BOM R 619
13) (2001) 4 SCC 734
14) (1976) 1 SCC 671
15) 2009 (6) ALD 590
16) (1993) 2 SCC 703
17) 2010(2) ALD 789 = 2010(3) ALT 252
THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Writ Petition (PIL) No.244 of 2017
ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
This Writ Petition is filed in Public Interest seeking a
mandamus to declare the action of respondents 1 to 6 in not
initiating action for removing the illegal and unauthorized
construction of compound walls and gates by the 7th respondent,
closing public access to the roads in the layout in R.S.
No.498/2(P), 498/3(P), 499/1 & 2, 510/3A, 511(P), 518/1B & 2,
502/1&2 dated 31.01.2004 of Gollapudi village, Vijayawada Rural
Mandal, Krishna District, surrendered to the 5th respondent-gram
panchayat through registered gift deed dated 08.04.2011, and in
not removing the illegal construction made by the 7th respondent
in the lay out open space, as illegal, arbitrary and
unconstitutional. A consequential direction is sought to
respondents 1 to 6 to remove the constructed walls and gates
which had resulted in public access to the layout roads being
closed, and to remove the illegal constructions made by the 7th
respondent in the layout open spaces.
Facts, to the limited extent necessary, are that the 7th
respondent society purchased Ac.29.4 cts in different survey
numbers of Gollapudi village, Vijayawada Rural Mandal, Krishna
District, and applied to the then Vijayawada Guntur Tenali and
Mangalagiri Urban Development Authority for grant of permission
to construct a row shopping complex, consisting of ground and
first floor in the said land, and permission was accorded vide
proceedings dated 31.01.2004. This complex was named as the
Mahatma Gandhi Wholesale Commercial Complex, with each shop
of a plinth area of 934 square feet in the plot area of 149.33 square
yards. An extent of Ac.2.90 cts was earmarked for open spaces,
and Ac.2.40 cts for parking. The 7th respondent gifted all the
layouts roads and open places, vide registered gift deed No.1555 of
2011 dated 06.04.2011, to the 5th respondent Gollapudi
Grampanchayat for public use. Consequently, all roads and open
places in the 7th respondent shopping complex stood vested in the
5th respondent as its absolute custodian, and was meant for public
use of ingress and egress. Thereafter the 7th respondent
constructed compound walls and gates closing all public roads,
restricting access of the general public to the layout roads. In
addition a building was constructed, in one of the open public
places, for commercial use.
The petitioner, an elected member of Ward No.13 of
Gollapudi Grampanchayat, claims to be actively involved in
undertaking development activities in the subject village, and to be
in the forefront in putting forth public grievances before the
authorities concerned. He also claims not to have any personal
interest in the matter, and that the Writ Petition is filed only in the
interest of the people of Gollapudi village, the general public, and
people residing in surrounding colonies of Mahatma Gandhi
Wholesale Commercial Complex. The petitioner alleges that a
second floor was illegally constructed over the permitted ground
and first floor; the general public was facing inconvenience
because of closure of these roads; despite higher officials having
directed the 5th respondent several times to remove the walls and
gates, they have not removed them so far; and removal of the walls
and gates erected by the 7th respondent, closing public access to
the layout roads vested in the 5th respondent, was necessary to
prevent misuse of public roads and open spaces in the layout.
While alleging that the 7th respondent and its members had
constructed the shops in the complex in gross violation of the
sanctioned plan, and they had not left the parking space as shown
in the layout, the petitioner submits that the lay out was granted
with 40 feet and 30 feet wide main roads, and 20 feet wide internal
roads between the shops; however the shops were constructed, on
the boundary of the layout, without maintaining the open space
earmarked in the sanctioned layout; the subject sanctioned layout
is surrounded by three colonies which had developed long ago;
after construction of shops, the 7th respondent had closed the lay
out roads with brick walls and, in some places, they had erected
gates restricting the ingress and egress of the general public; they
had thereby preventing usage of said road by the residents of the
surrounding colonies; even the gates were being maintained under
lock and key by the management of the 7th respondent; there are
two bus stops, and two Nationalised bank branches within the
shopping complex area itself; hundreds of people, living in the
surrounding residential colonies, have their accounts in these
bank branches; RTC buses ply through the shopping complex area
to the housing board colonies; the State Government took up
construction of a flyover near Indrakeeladri temple; consequently
traffic was completely blocked on the National Highway, and
diverted through the newly developed by-pass road to reach
Vijayawada town; residents, living on one side of the commercial
complex of the 7th respondent, can reach the by-pass road only
through the Commercial Complex area, otherwise they have to take
a round about of around 4 to 7 kilometers to reach the same
destination; and the public at large are suffering in view of the
compound walls and gates constructed by the 7th respondent
closing/preventing public access to the public roads within the
layout.
According to the petitioner, the Gollapudi area falls within
the limits of the 4th respondent which has absolute authority in
dealing with illegal and unauthorized construction under the
APCRDA Act; the 4th respondent had initiated action for removal of
the unauthorized construction in several areas; after noticing the
illegal construction of a second floor, by several members of the 7th
respondent, the 4th respondent had issued orders vide proceedings
dated 19.05.2017, under Section 116(1) of the APCRDA Act,
directing further construction to be stopped; a copy of the said
letter was marked to the 5th respondent, and the District
Panchayat Officer, Krishna District; however, no further action was
initiated thereafter resulting in completion of the illegal
constructions and its being put to use; on information being
sought, under the Right to Information Act, the 5th respondent-
gram panchayat, vide letter dated 24.12.2015, stated that the
roads in the Mahatma Gandhi Commercial Complex, Gollapudi
were public access roads belonging to Gollapudi Grampanchayat,
and action would be taken for removal of the constructed walls
which had resulted in closing access to these roads to the general
public; however the 6th respondent, in collusion with the 7th
respondent, had not initiated any action for its removal; the
general body of the 5th respondent had passed a resolution on
09.12.2016 directing the 6th respondent to initiate action for
removal of the compound walls and gates which restricted access
to the roads; and, though the petitioner had submitted several
representations thereafter, no action was taken.
The petitioner further stated that Sri A.V. Krishna Rao had
filed an application before the 4th respondent seeking permission;
officials of the 4th respondent had inspected the 7th respondent
complex, and had observed that the 7th respondent had
constructed compound walls across all the 50 feet roads which had
already been gifted to the 5th respondent; Sri A.V. Krishna Rao and
others had filed W.P. No.18639 of 2016 and W.P. No.34358 of 2016
seeking a direction to remove the wall; both the Writ Petitions are
pending adjudication; mere pendency of the Writ Petitions is not a
bar to implement the law; there are no orders in force preventing
action being taken to remove the walls and the gates constructed
by the 7th respondent; in their counter-affidavit, filed in W.P.
No.18639 of 2016 and W.P. No.34358 of 2016, respondents 4 and
5 had admitted that the 7th respondent had closed the public roads
by constructing walls and gates, but they had not initiated any
action to remove the same so far; the 7th respondent had closed all
lay out roads either by constructing walls or putting up gates,
keeping them under lock and key, and preventing the general
public from accessing the said roads for their use; all the roads
and open places vest in the local authority, and are meant for
general public use; more over the layout was not sanctioned as a
gated community, and not even a compound wall was permitted
around the complex; the 7th respondent had constructed a
compound wall all around the shops illegally without obtaining
permission from the authorities; the 6th respondent, (the executive
officer of the 5th respondent) had colluded with the 7th respondent;
because of his inaction, the public at large were suffering
inconvenience, more so because the National Highway was closed
for construction of a flyover at Indrakiladri temple.
In the counter-affidavit, filed on behalf of the 4th respondent,
it is stated by the Director, Development Promotion Wing of AP
CRDA, Vijayawada that they had granted permission to the 7th
respondent for construction of 489 row shops consisting of G+1
upper floor in an extent of Ac.29.0475 cts in different survey
numbers; the total plot area was 489 x 149.33 square yards or Ac.
15.09 cts; the total open space was Ac.2.905 cts; the parking area
was Ac. 2.40 cts; the lay out had 60 feet roads, 40 feet roads and
30 feet wide roads; the approach road is the 200 feet wide
Vijayawada by-pass road, and the 100 feet wide ZDP road; his
office had informed the 7th respondent, vide letter dated
16.05.2010, to hand over the roads and open spaces to Gollapudi
Gram Panchayat; accordingly, the 7th respondent had handed over
the roads and open spaces to the Gollapudi Gram panchayat vide
registered gift deed No.1555/2011 and 1019/2011 which were
under the possession of the panchayat; the same was confirmed by
the Panchayat Secretary, Gollapudi on 24.12.2015; the 7th
respondent had requested the 4th respondent not to grant any
permission to Gollapudi Grampanchayat or anybody to lay roads,
or to interfere with the Mahatma Gandhi whole sale commercial
complex in any manner, since the District Collector, Municipal
Commissioner and the Commissioner of Police had directed the
wholesale commercial dealers to shift their wholesale business to
the outskirts of Vijayawada town, as their earlier location was
causing traffic problems; the 7th respondent claimed that, in
obedience to their directions, they had obtained sanction, vide
layout dated 31.01.2004, to construct a complex at their own cost;
they had laid roads on the ground, and had developed other
infrastructure works around the complex at the exclusive cost and
expense of the members of the commercial complex; the 4th
respondent has not granted permission for construction of a
compound wall all around the commercial complex of the 7th
respondent; they had also not granted any permission to construct
a compound wall obstructing entry to the general public to the
gram panchayat road; they had informed the Panchayat Secretary
on 15.02.2016 to remove the compound wall which was
obstructing entry to the site from the existing 40 feet wide gram
panchayat road; the 4th respondent had requested the District
Panchayat Officer, vide letter dated 04.07.2016, to direct the
Panchayat Secretary to take immediate action for removal of the
compound wall (which was obstructing public access to the roads),
as also the structures constructed by the society in the lay out
public open space, to avoid further legal complications; they had
issued a show cause notice, under Section 115(1) of the APCRDA
Act, 2014, which was served on 19.05.2017 upon 18 shop
members; these shop owners were given 7 days time to show cause
why the unauthorized constructions should not be removed; Sri
A.V. Krishna Rao had submitted plans for construction of a
commercial complex consisting of Cellar for parking+G+4 upper
floors; the site is earmarked for Commercial use as per the
Gollapudi Zonal Development plan; the proposal was also to secure
access from the three 40 feet wide roads on the Northern side, and
the 33 feet wide road on the eastern side of the site; these three 40
feet wide roads belong to the Gollapudi Gram panchayat,
consequent upon the 7th respondent having gifted it vide registered
gift deed dated 08.04.2011; it was found that these three roads are
closed at the end of the site of Sri A.V. Krishna Rao by
constructing a compound wall; the Panchayat Secretary had
issued a certificate, certifying that the roads were public roads
belonging to the Gollapudi Gram panchayat, and the Gram
panchayat would take up the responsibility of
removal/demolishing the wall within its limits which hindered
public access; and the present proposal, for construction of a
commercial complex, would be considered only after removal of the
compound wall by the Gram panchayat which was obstructing
entry, to the site under reference, from the existing 40 feet wide
access road.
In the counter-affidavit filed by the 7th respondent, the
bonafides of the petitioner is put in issue. It is stated that the 7th
respondent, a society registered under the Societies Act, has
around Rs.60 crores turnover every day; they are paying more than
Rs.14 lakhs as House tax and professional tax; the petitioner was
the brother-in-law of Sri A.V. Krishna Rao - the first petitioner in
W.P. No.18639 of 2016 and W.P. No.547 of 2017; the petitioner
had high handedly got demolished the compound wall of the
society on the intervening night of 20/21.03.2016 for which a
complaint was given to the Bhavanipuram police station which was
registered as Cr. No.160 of 2016 on 21.03.2016; and the
demolished part of the compound wall was reconstructed.
With regards the compound wall, the 7th respondent would
submit that there was a gap of 3 feet to 5 feet between the shops
and the compound wall; the compound wall was constructed even
before construction of the complex leaving one feet of the societys
land outside the compound wall; the compound wall was
constructed in 2002 even prior to approval being granted for the
lay out; they have not closed any road having connectivity either
with the panchayat or the municipal road or the National High
way; the only gate on the southern side, and one of the two gates
on the northern side, were closed as per the advice of the police,
for keeping trained men at the gates for security reasons; even for
these two gates, the 7th respondent had constructed a gate within
the gate for access of pedestrians and two wheelers; residents
living on one side of the commercial complex, whose roads are
connected to the roads of the commercial complex, are passing
through these roads without any obstruction; the allegation, that
public access was prevented, is incorrect; a 750 square feet
structure, which was used as their office at the time of
construction of the buildings in the lay out, is located in the place
gifted to 5th respondent adjacent to the southern side gate of the
lay out; instead of demolishing the structure, the 7th respondent is
using it for the purpose of a canteen, as mentioned in the gift deed
executed by them in favour of the 5th respondent gram panchayat;
taxes are being paid on the subject premises, and the rent received
therefrom is being used for maintenance of public utilities like
providing public water facility etc; and they have also constructed
a bus shelter near the canteen.
According to the 7th respondent, Sri A.V. Krishna Rao, who
was the owner of the land on the southern side of the complex, and
who has access to his land through a 33 feet wide road on the
Northern side of his land, also has access through Mahender
Nagar and Ambedhkar Nagar; the internal roads, adjacent to the
plots of Sri A.V. Krishna Rao and others, are only 20 feet wide
roads; the remaining 20 feet area, adjacent to these 20 feet roads,
is earmarked for parking; these 20 feet wide internal road are not
viable for traffic; there is only one 40 feet road in the lay out which
is connected, on the eastern end, to the 100 feet Venkateswara
foundry road, and is connected on the western end to the 40 feet
road in the Venkateswara colony; there is no other 40 feet road in
the lay out; the petitioner is the brother-in-law of Sri A.V. Krishna
Rao, and the relief sought in this Writ Petition is similar to that of
W.P. No.18639 of 2016; and they were not preventing the general
public from accessing the layout roads wherever the lay out roads
are connected to the Municipal panchayat roads or the National
Highway.
In his affidavit, filed in reply to the counter-affidavit filed by
the 7th respondent, the petitioner submits that the 7th respondent
did not obtain permission for construction of a compound wall; the
sanctioned layout does not disclose any compound wall to be in
existence before the date of application seeking layout sanction;
the allegation that the compound wall was constructed in the year
2002 is false; existence of shops in the layout does not authorise
the 7th respondent to close the layout roads with walls and gates;
as per the sanctioned layout, all roads are open to the adjacent
localities and are public roads; in every city there are several
localities, with thousands of shops and business establishments,
in which roads, meant for public use, are open to one and all; the
7th respondent had also not maintained the required setbacks as
per the sanctioned layout; the assertion that there was a gap of
three to five feet between the shops and the compound wall was
false; the 7th respondent has admitted that they had erected three
gates closing the roads; as per the sanctioned plan there are 20
roads connecting places outside the layout; of these 20 roads, the
7th respondent erected six gates closing public access; the
remaining 14 roads were completely closed on a wall being
constructed thereupon; the plan, enclosed to the affidavit,
discloses the areas where the roads have been closed either with
walls or with gates; the allegation that the gates were closed as per
the advice of the police, for keeping the trained men at the gates
for security reasons, is false; the advice of the police has been
invented for the first time in the counter-affidavit; in the earlier
Writ Petition filed by the 7th respondent, there is no mention of any
advise having been given to them by the police; in any event, the
police officials have no power to advice, and direct closure of public
roads preventing access thereto to the general public; the 7th
respondent admits having leased out the premises for running a
hotel; running of a hotel is not a public purpose; in public places,
earmarked in the layout, greenery has to be developed, and no
construction can be made thereupon; the CRDA has filed a
detailed counter-affidavit in W.P.No.547 of 2017 stating that they
did not grant permission to the 7th respondent to construct a
compound wall all around the commercial complex, nor had they
granted permission, for construction of a compound wall,
obstructing entry to the general public; inspite of several directions
by the CRDA, and by the third respondent, the 6th respondent,
acting in collusion with the 7th respondent, had not initiated any
action; it is the duty of respondents 5 and 6 to comply with the
directions of respondents 3 and 4; though show-cause notices were
issued by the 4th respondent, no action was taken; out of the 20
roads which connect the 7th respondent layout to localities outside,
gates were erected at six places and are being kept under lock and
key; the other 14 roads have been completely closed with
compound walls being constructed thereupon; the 7th respondent,
having gifted these roads and open places to the 5th respondent,
cannot be heard to contend that they would not open the roads for
public use; public roads and foot paths are not supposed to be
obstructed by anybody in any form; respondents 2 to 6 had failed
in their duty to implement the law, and had turned a blind eye
towards the issue; along with the writ petition, they had enclosed
photographs of the compound wall with a huge iron-gate within
which there is a small gate through which two wheelers and
pedestrians can pass, and not four wheelers or bigger transport
vehicles; and all around the 7th respondent complex, other than
those places where gates have been erected, the entire area is
closed by compound walls.
With regards the allegation that the Writ Petition as filed is
not in public interest, the petitioner states that he was born and
brought up in Gollapudi village; there are more than 100 families,
of his close relatives, living in the said village; the 7th respondent
complex was near his house; he was the Ward Member of the
locality wherein the 7th respondent shopping complex was located;
being a public representative of the locality, it was his duty to
attend to the specific grievance of members of the locality, and
grievances of the general public living in the entire area; he had
mentioned, in his writ affidavit, regarding the Writ Petitions filed by
Sri A.V. Krishna Rao on the one hand, and the 7th respondent on
the other; he had also enclosed the Writ affidavits and counter-
affidavits filed by the respondents; he has not suppressed any
facts; in the Writ Petition filed by Sri A.V. Krishna Rao, removal of
only one wall, which restricts access to his site from the layout
road, was sought; in the present Writ Petition, filed in public
interest, the petitioner prays for opening of all the layout roads to
public access; with regards Crime No.160 of 2016, filed by the 7th
respondent, the complaint itself alleges that the Vice-President of
the Grampanchayat had got the compound wall demolished, and
the petitioner was standing near the same; he had forgotten about
the police having obtained his signature, and did not inform the
same to his counsel when the writ affidavit was drafted; this was
purely a mistake for which he tendered apology; there was no
personal animosity or dispute between him and any of the
members of the 7th respondent; and if the layout roads are made
open to the general public, residents of all the surrounding
colonies would be benefited on securing free access to these roads.
It is not in dispute that the 7th respondent-Society was
accorded sanction by the then Vijayawada-Guntur-Tenali and
Mangalagiri Urban Development Authority, vide proceedings dated
31.12.2014, for a lay out and to construct a row shopping complex
thereon. It is also not in dispute that the 7th respondent had, as
required by law, gifted all the subject lay out roads and open
spaces in favour of the 5th respondent gram panchayat, by
registered gift deed No.1555 of 2011 dated 06.05.2011 and
No.1019 of 2011, for public use; the sanctioned lay out consisted
of 20 roads connecting places outside the lay out; over these 20 lay
out roads, the 7th respondent had constructed compound walls
over 14 of them, and had erected gates over the remaining six,
preventing/restricting public access thereto; and they had also
used the open spaces, in the sanctioned lay out, for construction of
their office which was later converted to a canteen and leased out
to a third party. The contention, urged on behalf of the petitioner
by Sri V. Srinivasa Rao, Learned Counsel, is that, since the subject
20 roads within the aforesaid sanctioned lay out belong to the 5th
respondent-Gram Panchayat, and are meant for public use, the 7th
respondent could neither have constructed compound walls over
14 of such roads, nor could they have erected gates over the
remaining six.
Bearing in mind the fact that all roads and public spaces in
the subject lay out were gifted by the 7th respondent in favour of
the 5th respondent gram panchayat vide gift deed No.1555 of 2011
dated 08.04.2011 and 1019 of 2011, let us take note of the
relevant provisions of the A.P. Panchayat Raj Act, 1994, and the
A.P. Capital Region Development Authority Act, 2014. Section 53
of the Andhra Pradesh Panchayat Raj Act, 1994, (hereinafter called
the 1994 Act) relates to vesting of public roads in gram
panchayats and, under sub-section (1) thereof, all public roads in
any village, other than National Highways, State Highways and
roads vesting in Zilla Parishad or Mandal Parishad, shall vest in
the gram panchayat together with all pavements, stones and other
materials thereof, all works, materials and other things provided
therefor, all sewers, drains, drainage works, tunnels and culverts,
whether made at the cost of the gram panchayat fund or otherwise,
in along side or under such roads, and all works, materials and
things appertaining thereto. Under the proviso thereto, the gram
panchayat shall take steps to remove encroachments on, and
prevent un-authorised use of, any road other than a National
Highway passing through the gram panchayat. Section 98 of the
1994 Act relates to removal of encroachment and, under sub-
section (1) thereof, the executive authority may, by notice, require
the owner or occupier of any building to remove any encroachment
or obstruction in or over any public road vested in such gram
panchayat. Section 101 relates to prohibition against making
holes and causing obstruction in public roads and, under sub-
section (1) thereof, no person shall make a hole or cause any
obstruction in any public road vested in a gram panchayat except
with the previous permission of the executive authority, and
subject to such conditions as the executive authority may impose.
Section 101(3) stipulates that, if any person contravenes the
provisions of Section 101, the executive authority shall fill up the
hole or remove the obstruction and may recover the cost of so
doing from such person.
Section 2(5)(a) of the A.P. Capital Region Development
Authority Act, 2014 (for short the 2014 Act) defines building to
include any structure or erection, or a part of a structure or
erection, which is intended to be used for residential, industrial,
commercial or any other purposes, whether in actual use or not.
Section 114(1) stipulates that any person who undertakes or
carries out development of any land or building, or institutes or
changes the use of any land or building, in contravention of the
master plan or infrastructure plan or area development plan or any
plan sanctioned under the Act (a) without permission as required
under the Act or (d) in-contravention of any permission which has
been duly modified, shall be punishable with imprisonment for a
term which may extend to three years or with a fine equivalent to
twenty percent. Section 115(1) of the 2014 Act stipulates that,
where any construction of a building has been commenced or is
being carried on or has been completed as indicated in Section
114(1), the Commissioner may, subject to the provisions of Section
115, serve on the owner a provisional order requiring him to
demolish such unauthorised construction, within the specified
period, to bring such construction of the building or work in
conformity with the provisions of the Act or as per the sanctioned
development permission or Rules or bye-laws made thereunder.
In terms of Section 53(1) of the 1994 Act all public roads,
within the territorial limits of a Gram Panchayat, are vested in it,
and, in terms of Sections 98 and 101 thereof, the Gram Panchayat
is obligated to remove encroachments, and prevent unauthorised
use of any of the roads which belong to it. Neither was the 7th
respondent accorded permission, either by the 5th respondent-
Gram Panchayat or by the 4th respondent, to construct compound
walls and erect gates, nor do the 1994 Act and the 2014 Act
provide for any such permission to be granted. Construction of
compound wall over 14 roads in the lay out, and erection of gates
in the remaining six, all of which are meant to connect areas
outside the lay out, has resulted in prohibition/restriction of the
use of these roads, which belong to the 5th respondent-Gram
Panchayat, by the public at large.
Public streets and roads vest in the State/local body, and
the State/local body holds them as a trustee on behalf of the
public. (Dr. Nitin G. Khot v. State Commandant, Belgaum ;
Sujay Advertising v Union of India ). As public streets vest in
the State/local body, every member of the public has a right to use
the same subject to the rights of others and the law regulating
traffic etc. (Dr. Nitin G. Khot1; Saghir Ahmad v State of Uttar
Pradesh ). There is a duty cast upon the State/local bodies to
maintain roads in a proper condition. Whenever it is brought to
their notice that there are encroachments on public roads and
streets, it is their duty to act and take steps to remove the same.
(D. Mallikarjuna Rao v. Member Secretary ; Natarajan O.N. v.
The Municipal Council, Turaiyur ; Janarthanam, KVK v. State
of Tamil Nadu ; The Commissioner, Panruti Municipality,
Panruti v. Sri Kannika Parameswari Amman Temple ;
Damodara Naidu v. Thirupurasundari Ammal ; and Govinda
Asari v. The Kancheepuram Municipality, rep. its
Commissioner ). If any obstruction is caused over the roads/road
margin, the person entitled to have such access can enforce that
right. (K.V.K. Janardhanam KVK6; Bharathamatha Desiya
Sangam Madha-varam v. Roja Sundaram ).
Public roads are public property, and these roads are
constructed for a public purpose. It is only for the welfare and
betterment of the public, that all such developmental activities are
undertaken. People should be allowed to enjoy the benefits of such
development. Public roads can be used only for the travelling needs
of the public. It cannot be converted for other collateral purposes.
(P.N. Srinivasan v. The State of Tamil Nadu ). If, in respect of
any street, public has a right of way, it is a public street. The
public way or public road or public street is a way over which their
exists a public right of passage. (Mishrimal Jethmal Oswal v.
Municipal Council of Lonavala ). The vesting of the public street
in a local body is only for the purpose of maintaining it properly as
a public street. (Govinda Asari9). Vesting of the public street in
it, does not confer any power even on the local body to treat it as
its private property, nor does it imply a power to cause obstruction
to the use of the public street. (Govinda Asari9).
While admitting that compound walls were constructed, and
gates were erected over these roads, Sri C.V. Mohan Reddy,
Learned Senior Counsel appearing on behalf of the 7th respondent,
would submit that, since some of these gates have an inner-gate
through which pedestrians and two wheelers can pass, access to
the general public cannot be said to have been restricted. As the
subject roads belong to the 5th respondent-gram panchayat, and
not to the 7th respondent, the latter has no right whatsoever to
construct compound walls over public roads and erect gates
thereupon. Even according to the 7th respondent, four wheelers
cannot enter the lay out as the gates are under lock and key.
Ingress and eggress into this area is partly prohibited (because of
compound walls having been constructed over 14 of the layout
roads), and partly restricted (because of erection of gates over the
remaining six layout roads), by the 7th respondent; and the general
public have thereby been denied free access thereto.
As public roads and open spaces, in sanctioned lay outs
belong to the Gram Panchayat under Section 53(1) of the 1994 Act,
and as the 7th respondent, in compliance with the law, has gifted
the public roads and open spaces to the 5th respondent-Gram
Panchayat, their action, in constructing compound walls and
erecting gates, over these roads in the sanctioned lay out is
evidently illegal. The justification put forth by Sri C.V.Mohan
Reddy, Learned Senior Counsel, is that the 7th respondent has
been paying huge amounts as house-tax and profession tax; and
the only gate on the southern side, and one of the two gates on the
northern side, were erected, as per the advice of the Police, as a
measure of security.
The members of the 7th respondent are bound to pay house-
tax and profession tax in accordance with the provisions of the
1994 Act. Payment of such taxes does not confer any right upon
them to block roads permanently by constructing compound walls
thereupon, or restricting ingress and eggress of the general public,
by erecting gates on the public roads, and in keeping them under
lock and key. Neither has any documentary evidence been placed
before us to show that the gates were erected on the advice of the
police officials nor has any provision of law been brought to our
notice which confers any power on the police officials to permit the
7th respondent to restrict access, to the general public, over these
public roads which belong to the Gram Panchayat. Closure of
public roads, on walls being constructed or gates erected across
them, by any individual or group of persons, under pre-conceived
threat perceptions, would not only violate the law (in the present
case Sections 53, 98 and 101 of the 1994 Act and Section 114(1) of
the 2014 Act), but would also throw traffic in the area completely
out of gear, and result in needless and avoidable traffic congestion
in other areas.
The case of the 4th respondent, as is evident from their
counter-affidavit, is that, while the roads were gifted to the 5th
respondent-Gram Panchayat vide registered gift deed No.1555 of
2011, the open spaces were gifted to the 5th respondent-gram
panchayat vide registered gift deed No.1019 of 2011; the 4th
respondent had informed the Panchayat Secretary on 15.02.2016
to remove the compound wall which was obstructing entry to the
lay out; the 4th respondent had also requested the District
Panchayat Officer, vide letter dated 04.07.2016, to direct the
Panchayat Secretary to take immediate action for removal of the
compound wall (which was obstructing public access to the roads),
as also the structures constructed by the society in the lay out
public open space; and a show-cause notice was issued, under
Section 115(1) of the 2014 Act, on 19.05.2017 calling upon the
owners of the shops in the 7th respondent layout to show cause
why the unauthorised constructions should not be removed.
While the 4th respondent has issued notices, and has advised
the Gram Panchayat, it is evident that the 5th respondent-Gram
Panchayat has not taken any action to have the illegal and
unauthorised construction, made by the 7th respondent over public
roads and open spaces, removed in accordance with law. As
construction of compound walls and erection of gates over public
roads, which belong to the Gram Panchayat, is illegal, the 5th
respondent-Gram Panchayat ought to have taken steps to have the
compound walls demolished, and the gates removed, as they
prevent/restrict access to the general public to the use of these
roads, and to put the public spaces to use, in accordance with law.
While the action of the 7th respondent is undoubtedly illegal,
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on
behalf of the 7th respondent, has put the bona-fides of the
petitioner in issue. It is contended by the Learned Senior Counsel
that the petitioner is the brother-in-law of one Sri A.V.Krishna Rao,
who is seeking to construct a building in the area adjacent to the
sanctioned layout, for which one of the means of access is through
the roads in the subject layout. While the petitioner has disclosed
all these facts, in the affidavit filed by him in support of the Writ
Petition, it is only the complaint given by the 7th respondent,
against them to the Bhavanipuram Police Station registered as
Crime No.160 of 2016 on 21.03.2016, which has not been referred
to therein. Sri V.Srinivasa Rao, Learned Counsel for the petitioner,
would submit that the petitioner, in the reply affidavit filed by him,
has stated that, by over-sight, this fact was not stated in the writ
affidavit. In his reply affidavit, the petitioner has tendered his
apology for his failure to do so and has also pointed out that, even
in the complaint, the allegation was that the Vice-President of the
Gram Panchayat had got a part of the compound wall demolished,
and the petitioner was standing near the same; and not that the
petitioner had earlier demolished a part of the compound wall.
Grant of relief under Article 226 of the Constitution is based
on the existence of a right in favour of the person invoking the
jurisdiction of the High Court. The exception to the general rule is
in cases where the writ applied for is a writ of habeas corpus or a
quo warranto or a writ filed in public interest, (Vinoy Kumar v.
State of UP ), where the rule of locus standi is relaxed. (Jasbhai
Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed ; Ahmed
Ehhtesham Kawkab v. Government of India ). As this Writ
Petition has been filed in public interest, alleging violation of the
provisions of the 1994 Act and the 2014 Act by the 7th respondent,
the question, whether any right of the petitioner has been violated
justifying his invoking the jurisdiction of this Court, is wholly
immaterial. Even otherwise, the petitioner, like any other member
of the general public, has a right to use public roads and his right,
along with all those who live in surrounding areas, to use the
public roads, in the sanctioned lay out, has been denied as a result
of the 7th respondent having constructed compound walls over 14
of the roads, and in erecting gates over six others.
It is no doubt true that Sri A.V. Krishna Rao has invoked the
jurisdiction of this Court seeking removal of the compound wall
over one of the roads in the lay out which restricts access to his
site from the lay out road, and the said Writ Petitions are pending.
As public roads vest in local bodies (in the present case, the 5th
respondent-gram panchayat) no person, be it the petitioner or the
7th respondent or Sri A.V. Krishna Rao, can claim, as of right, that
they can close public roads, constructing walls across them or
erecting gates thereupon, as that would prevent/restrict public
access to these public roads. We see no reason to deny the
petitioner, the relief sought for in this Writ Petition filed in Public
Interest, merely because the Writ Petitions filed by Sri A. Krishna
Rao and the 7th respondent are pending on the file of this Court.
The petitioner claims that he was born and brought up in
the very same village, around 100 families of his close relatives are
living in the village, he is a ward member of the locality, and is,
therefore, entitled to expouse the cause of the general public. It is
unnecessary for us to examine these contentions, or even the
bonafides of the petitioner, as if any other member of the public, to
whom the oblique motive and conduct alleged against the
petitioner in the present case, cannot be attributed, could file such
a writ petition for the same relief, this disability on the ground of
oblique motive and conduct would not attach to him. This being
so, the relief claimed by the petitioner in the writ petition being in
the nature of a class action, without seeking any relief personal to
him, ought not to be dismissed merely on this ground, since this is
a matter of public concern and relates to the good governance of
the State/local body itself. (Dr. Kashinath G.Jalmi v. Speaker ;
Ahmed Ehhtesham Kawkab15; M/s. Campaign for Housing and
Tenural Rights (CHATRI) v. Government of Andhra Pradesh ).
We see no reason, therefore, to non-suit the petitioner on this
ground or to refuse to grant him the relief sought for in the Writ
Petition, as it is evident that the 7th respondent had illegally and
unauthorisedly constructed compound walls over 14 of the roads
in the subject lay out, and has erected gates over six others,
prohibiting/restricting access, to the general public, to the use of
these public roads.
The 7th respondent shall, within four weeks from today,
remove the encroachments on the public roads and the open
spaces in the sanctioned lay out, which they had earlier gifted in
favour of the 5th respondent gram panchayat. In case the 7th
respondent fails to do so, both the 5th respondent Gram Panchayat
and the 4th respondent shall have the compound walls raised and
the gates erected, over these public roads in the sanctioned layout
removed, and the construction raised in open spaces demolished,
within four weeks thereafter.
The Writ Petition is, accordingly, disposed of. Miscellaneous
Petitions pending, if any, shall also stand disposed. There shall be
no order as to costs.
_________________________________
RAMESH RANGANATHAN, ACJ
_______________________________
GUDISEVA SHYAM PRASAD, J.
Date: 28-02-2018.
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