MEHER FATIRNA v. DISTRICT COLLECTOR, RANGA REDDY DISTRICT, HYDERABAD
2006-01-24
V.V.S.RAO
body2006
DigiLaw.ai
( 1 ) THE petitioner is statedly the owner of agricultural land admeasuring acs. 0. 22 guntas in Survey No. 26 of chandanagar Village of Serilingampally mandal in Ranga Reddy District. She purchased the said property from V. C. Veeraiah and his three sons under registered sale deed, dated 28. 1. 1998 and rectification deed dated 21. 11. 2000. According to the petitioner, the main approach road to the said land is through Survey No. 27, which is a Government land and there is a 40 feet wide road formed through Government land in Survey No. 27. On North, East and West sides of the petitioners property, private lands are situated and therefore the alleged road in Survey No. 27 is the only approach providing ingress and egress to the petitioner. The petitioner alleges that there was such road for more than fifty years as per the revenue records showing it as public road/public street maintained by Serilingampally Municipality, the third respondent herein. ( 2 ) THE petitioner further alleges that after she purchased the property, chandanagar Police Station was constructed in Survey No. 27 keeping in tact the public road leading to her land. On 30. 5. 2002 between the southern side of her land in survey No. 26 and Government land in survey No. 27, the second respondent attempted to construct a boundary wall. The petitioner approached the first respondent by making a representation, who after considering the grievance allegedly advised the authority not to proceed with the work. She alleges that on 25. 11. 2005, the second respondent made an attempt to construct boundary wall on public road with an intention to permanently close the public road. Aggrieved by the same, the petitioner submitted representation on 25. 11. 2005 to the respondents requesting them to inspect the public road and take necessary action, in vain. The petitioner contends that the road in Survey No. 27 is a public street within the meaning of Section 2 (31) of A. P. Municipalities Act, 1965 (the Act, for brevity), which is meant for use by all persons and the Government is not entitled to obstruct the same. The second respondent has no power or authority to make any construction on the road causing inconvenience to innocent public.
The second respondent has no power or authority to make any construction on the road causing inconvenience to innocent public. The second respondent already constructed a room measuring 12 x 12 feet causing partial obstruction on the main approach road and is making hectic effort to construct boundary wall to permanently close the road. Therefore, the petitioner filed the present writ petition seeking a writ of mandamus declaring the action of the respondents in not considering the representation of the petitioner, dated 25. 11. 2005, and allowing the second respondent to permanently close the public road in Survey No. 27 of serilingampalli Municipality as illegal, arbitrary and unjust. ( 3 ) WHEN the matter was heard on 29. 11. 2005, the learned Standing Counsel for Municipalities sought time for getting instructions in the matter. Having regard to the allegations made by the petitioner that the second respondent is constructing a compound wall allegedly on the road, this court ordered status quo. On 8. 12. 2005, the learned Government Pleader for Home appeared and submitted that the land was allotted to the police station for construction of police station and that there is no road in the area. Both the Counsel were directed to file counter-affidavits. Accordingly, the fourth respondent filed counter-affidavit on behalf of respondents 1 and 4, and respondents 2 and 3 filed separate counter-affidavits denying various allegations. A brief reference to these pleadings is necessary to appreciate the controversy in the matter. ( 4 ) THE Mandal Revenue Officer -fourth respondent herein; who filed counter-affidavit on behalf of respondent Nos. 1 and. 4, states that he has inspected the lands in Survey Nos. 26 and 27, on 29. 12. 2005 and found that there is no road existing which passes through Survey no. 27 and reaches the petitioners land, that m/s. J. Narasimha and J. Anjaiah (villagers) have also given their statements that there was never such road leading to petitioners land. The counter-affidavit further states as under: at the outset, it is to be submitted that the entire land in Sy. No. 27 of Chandranagar undisputedly belongs to the Government. It is also an undisputed fact that the land in Sy. No. 26 is a patta land and if the petitioner has purchased the land from its true owner, he will have title to the land.
No. 27 of Chandranagar undisputedly belongs to the Government. It is also an undisputed fact that the land in Sy. No. 26 is a patta land and if the petitioner has purchased the land from its true owner, he will have title to the land. In fact, the Municipality has laid a road from nh-9 to reach the existing residential gowthaminagar Colony and the same passes through northern side and takes a diversion towards western side to reach Gowthamingar housing Colony. Immediately after taking a turn, there is a sub-road which continues upto the beginning of Sy. No. 45. The land in sy. No. 45 and its adjacent land in Sy. No. 26 (purchased by the petitioner) are low lying lands and NALA of Gangaram Pedda cheruvu passes through the said lands. Thus the land in Sy. Nos. 45 and 26 are submerged lands in the water flow of peddacheruvu of Gangaram Hamlet of chandanagar. The Municipal Road which passes through Sy. No. 27 of Government land do not reach the petitioners land in sy. No. 26. The part of the land in Sy. No. 27 was allotted to Police Department for construction of Police Station and quarters. The 2nd respondent has constructed the compound wall to protect the Government land being encroached. The petitioner or the public do not have any right over the government land to claim passage. The road in existence in Sy. No. 27 do not lead to petitioners land. The petitioner cannot claim a right over the non-existing road. In fact as stated supra, the lands in Sy. Nos. 45 and 26 are low lying lands which are submerged in water flow of Peddacheruvu of Gangaram Hamlet of Chandanagar Village. The existing Municipal road as stated supra, take a diversion after passing through part of Sy. No. 27 towards western side leading to Gowthaminagar residential locality. The said road which was laid by Municipality is still existing. ( 5 ) THE third respondent i. e. , commissioner of Serilingampally Municipality, in his counter-affidavit asserts that municipality has not laid any road in survey No. 27 and that there is no approved lay out in respect of the land in Survey no. 27. Even the Master Plan or Zonal development Plan of Serilingampally does not contemplate any road.
( 5 ) THE third respondent i. e. , commissioner of Serilingampally Municipality, in his counter-affidavit asserts that municipality has not laid any road in survey No. 27 and that there is no approved lay out in respect of the land in Survey no. 27. Even the Master Plan or Zonal development Plan of Serilingampally does not contemplate any road. It is further stated that Revenue Department allotted land for construction of Police Station of chandanagar, and that the respondent municipality has not accorded any permission for construction of 12 x 12 room and compound wall. The said room was constructed four years ago for being used as Sentry Room. The allegation that there was a road existing for the last fifty years is denied. It is further stated that on receipt of representation, dated 25. 11. 2005, given by the petitioner, the officials of the municipality conducted enquiry and found that the representation is not denied and the same is filed alleging the existence of road to gain the benefit of additional approach road. The petitioners land in survey No. 26 is falling in water flow area of Peddacheruvu, Chandanagar and as she is claiming right over the Government land, a writ petition is not maintainable, and the petitioner has to approach the Civil Court for easementary rights, if any. ( 6 ) THE Inspector of Police, P. S. , chandanagar, has filed a counter-affidavit stating that first respondent by proceedings, dated 16. 3. 1998, allotted an extent of acs. 3. 00 of Government land in Survey no. 27 of Chandanagar Village for construction of police station and residential quarters for police personnel. An extent of 2020 square yards of land was handed over and there is litigation with regard to the balance of land in Special Court for Land grabbing Cases as it was occupied by unauthorized persons. After taking possession of the land, the Police Department constructed police station and also another room. While denying that there is a road passing in front of police station, it is stated that there is no approach road from police station to the petitioners land and the petitioner has got access to her land beside the premises bearing h. No. 2-58, 2-58/2/2 and 2-58/2/1 in Survey no. 45 of Chandanagar Village, which was laid by municipal authorities.
45 of Chandanagar Village, which was laid by municipal authorities. The second respondent constructed compound wall within the land allotted to the police station in order to protect possession of the land and did not close any public road developed by the Municipality as alleged by the petitioner. As per the village map, there is no road jn Survey No. 27, which is a government land and the petitioners land in survey No. 26 is falling within the water flow area (Nala), Peddacheruvu, in which no constructions can be allowed. It is also stated that the third respondent has conducted fresh survey after filing the writ petition and prepared a sketch showing the entire area, which shows that there is no public road. ( 7 ) THE petitioner filed two reply affidavits; one traversing the allegations made in the counter-affidavit filed on behalf of second respondent and the other traversing the counter-affidavit filed by the third respondent. She alleges that there is no road in Survey No. 45 and that she has no access to her land beside the premises bearing House Nos. 2-58, 2-58/2/2 and 2-5 8/ 2/1 in Survey No. 45. There is a 40 feet road connecting Bombay Highway, which is formed in Survey No. 27, and that there is a road in Survey No. 27, which is in existence for the last fifty years. The allegation that the land in Survey No. 26 is water flowing area (Nala) of Peddacheruvu is denied. ( 8 ) THE learned Counsel for the petitioner places reliance on rough sketch prepared by his client in support of the submission that except the road on the southern side of the petitioners property, there is no access to the petitioner and that the said road in Survey No. 27 leading to national Highway is being used by the petitioner. Alternatively, the learned Counsel for the petitioner submits that even if there is no road as such formed by Municipality, the petitioner is using the pathway on southern side to reach the road in Survey no. 27 leading to National Highway and the second respondent cannot prevent the petitioner from using the same.
Alternatively, the learned Counsel for the petitioner submits that even if there is no road as such formed by Municipality, the petitioner is using the pathway on southern side to reach the road in Survey no. 27 leading to National Highway and the second respondent cannot prevent the petitioner from using the same. Per contra, the learned Standing Counsel for municipalities, the learned Assistant government Pleader for Revenue (General)and the learned Government Pleader for home submit that there is no road in the place as alleged by the petitioner and that the road from National Highway to the residential quarters/colonies in Survey Nos. 44 and 45 does not pass in front of the petitioners property. They place reliance on the Topo Plan, which was got prepared by the Commissioner of Municipality. ( 9 ) THE District Collector, Ranga reddy District, by proceedings Letter No. Hl/ 8916/97, dated 16. 8. 1998, considering the request of the Superintendent of Police, ranga Reddy District, accorded permission to the latter for construction of building for chandanagar P. S. , on the land admeasuring acs. 3. 00 in Survey No. 27. There is no denial that a police station is already constructed and there was a Sentry Room measuring 12 x 12 a little away from the police station. It is the case of the petitioner that she used to go to her land in survey No. 26 on the pathway in front of the Sentry Room and the second respondent tried to construct a compound wall closing the said pathway. The petitioners Counsel contends that there is a road on the southern side of the petitioners property, leading to the road in Survey No. 27 connecting to National Highway, the Topo plan filed by the third respondent does not support such a view. Indeed, if there was a road on the southern side of the property claimed by the petitioner, the same must reflect in the Schedule appended to sale Deed, dated 28. 1. 1998, and/or rectification deed, dated 21. 11. 2000. A perusal of these two documents would show that southern boundary of the petitioners property is shown as Survey no. 27 of Government graveyard. These two documents belie the contention that there was a pathway ght on the southern side leading to the road in Survey No. 27.
1. 1998, and/or rectification deed, dated 21. 11. 2000. A perusal of these two documents would show that southern boundary of the petitioners property is shown as Survey no. 27 of Government graveyard. These two documents belie the contention that there was a pathway ght on the southern side leading to the road in Survey No. 27. Indeed, the third respondent who is none other than the Commissioner of Municipality has categorically averred that there is no approved lay out in Survey No. 27 and that municipality has not laid any road in the said land. , Be that as it is, even if there is an approach road formed in Survey no. 27, which is marked as CC road in topo Plan filed by the Commissioner, the same takes off from National Highway on the south and at the police station on the north (of National Highway) takes a turn on the east of National Highway to Gowtham nagar Colony. The submission of the learned counsel, therefore, cannot be accepted. Insofar as alternative submission that the petitioner has been using the pathway abutting the Police Sentry Room, the same cannot be accepted unless there is a proper court declaration. Section 15 of Indian easements Act, 1882 (the Easements Act)is to the effect that where the access to land has been enjoyed peaceably for a period of twenty years, a right by prescription accrues. In the case of Government land, one should prove that he/she has been using the access to the land for thirty years. The petitioner admittedly purchased the property in Survey No. 26 in January, 1998, and even if she has been using - as a matter of convenience; the vacant land to reach the road in Survey No. 27, unless and until proper evidence is let in by the petitioner in an appropriate proceeding, that there has been such access to her land through Government land for thirty years, she cannot succeed in claiming the right of access. This aspect of the matter cannot be decided in the writ petition. In that view of the matter, the dispute being a civil dispute, the petitioner has to approach the civil Court for a declaration of easementary right under the Easements Act. A writ petition is not a proper remedy. ( 10 ) THE writ petition, for the above reasons, is misconceived and is accordingly dismissed.