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2013 DIGILAW 741 (AP)

Pyla Anand Rao v. Tahsildar, Visakhapatnam

2013-09-11

C.V.NAGARJUNA REDDY

body2013
Judgment : 1. This writ petition is filed for a mandamus to set aside the proceedings in Rc.No.523/2013/A dated 10.07.2013 of respondent No.1, based on which respondent No.3 has registered F.I.R.No.314/2013 dated 13.07.2013 for the offences punishable under Sections 447, 427 read with Section 34 I.P.C. 2. The petitioners are the owners of plot Nos.4 and 5 admeasuring 249.6 sq. yards and 247.27 sq. yards respectively in survey No.176/13 of Madhurawada Village, Visakhapatnam (Rural) Mandal and District. The petitioners obtained building permission from the Greater Visakhapatnam Municipal Corporation on 11.04.2011 and constructed an apartment building with stilt, ground and three upper floors. When respondent No.5 sought to remove the eastern boundary wall, the petitioners filed O.S.No.1032 of 2013 in the Court of 1st Additional Senior Civil Judge, Visakhapatnam. When the said suit was pending, respondent No.5 gave report dated 18.05.2013 to respondent No.3 alleging that the petitioners have been encroaching upon his plot bearing No.6 on the western side and raising a compound wall. Respondent No.1 thereafter submitted the impugned report/letter on 10.07.2013 to respondent No.3 and based on the said report, the latter registered F.I.R.No.314/2013 for the offences punishable under Sections 447, 427 read with Section 34 I.P.C. The petitioners have questioned the action of respondent No.1 sending the report behind their back and registration of criminal case based on the said report by respondent No.3.This Court, on 21.08.2013, while ordering notice to respondent No.5 prima facie opined that when a civil suit is pending and an order of injunction was granted by the civil Court against respondent No.5, respondent No.1 ought not to have interfered in civil dispute and addressed the impugned letter dated 10.07.2013 to respondent No.3. Therefore, respondent No.1 was directed to file his counter-affidavit and be personally present before the Court to explain as to under which provision of law he has addressed the letter dated 10.07.2013 to respondent No.3.In response to the above notice, respondent No.1 is personally present in the Court today and he has also filed a counter-affidavit. Respondent No.1 has explained in the counter-affidavit that respondent No.5 has submitted a report on 18.05.2013 to respondent No.3 alleging that the petitioners have removed the western side wall over his plot and encroached to the extent of 23.06 sq. yards and that necessary action may be taken against the petitioners. Respondent No.1 has explained in the counter-affidavit that respondent No.5 has submitted a report on 18.05.2013 to respondent No.3 alleging that the petitioners have removed the western side wall over his plot and encroached to the extent of 23.06 sq. yards and that necessary action may be taken against the petitioners. That upon receiving the said report, respondent No.3 has addressed a letter to respondent No.1 on 28.06.2013, wherein while referring to the report of respondent No.5, respondent No.3 has requested respondent No.1 to fix the boundaries between plot Nos.5 and 6 in order to settle the dispute and prevent law and order problem. That in pursuance of the said letter, respondent No.1 directed respondent No.2 to survey the disputed site and that accordingly respondent No.2 has informed both parties over phone to attend the survey work and also issued a written notice. Respondent No.1 pleaded that while notice was served on respondent No.5, as complete address of petitioner No.2 is not available, the notice could not be served on him but the same was served by way of substitute service by affixing it on the compound wall of plot No.5 belonging to petitioner No.2 and a panchanama was also conducted to that effect. The counter-affidavit further averred that during the survey of the plots, respondent No.5 was present along with registered sale deed and that therefore, boundaries were fixed for plot No.6 only and plot No.5 was not surveyed. That during the survey, it was noticed that plot No.6 was admeasuring 293.6 sq. yards, out of which an extent of 22.6 sq. yards was encroached on western, northern and southern sides and there was no encroachment on the eastern side of plot No.6 and that a report to that effect was sent on 10.07.2013 to respondent No.3 for taking further course of action as per law. Having received the report dated 10.07.2013 from respondent No.1, respondent No.3 has registered the abovementioned F.I.R. on 13.07.2013 against the petitioners. 3. From the above facts, it is evident that respondent No.1 has submitted his report dated 10.07.2013 in pursuance of the letter dated 28.06.2013 addressed by respondent No.3 on the report dated 18.05.2013 made by respondent No.5 alleging that the petitioners have encroached upon his plot on the western side. 3. From the above facts, it is evident that respondent No.1 has submitted his report dated 10.07.2013 in pursuance of the letter dated 28.06.2013 addressed by respondent No.3 on the report dated 18.05.2013 made by respondent No.5 alleging that the petitioners have encroached upon his plot on the western side. While it is true that respondent No.3 is empowered under law to take action for registration of a case based on a report alleging encroachment, if registration of a case is based on the purported survey report, the persons, who are likely to be affected by such report are entitled to a notice before the survey is held. As rightly pointed out by Sri P.Satyanarayana, learned counsel for the petitioners, there is an inherent contradiction in the stand taken by respondent No.1 in the counter-affidavit as regards the reason for non-service of notice in writing on the petitioners. While stating that respondent No.2 has informed both parties on phone to attend the survey work, it is further stated that the written notice on petitioner No.2 could not be served as his address was not available. If respondent No.2 could talk to petitioner No.2 over phone, it is not possible to believe that the address of petitioner No.2 was not available to respondent No.2 for service of notice. Therefore, the whole action of respondent No.2 in holding survey and demarcating the F-line between plot Nos.5 and 6 behind the back of the petitioners cannot be sustained. Such action not only resulted in adverse civil consequences to the petitioners but also they are facing criminal action by way of prosecution. The fair procedure expected of respondent Nos.1 and 2 in conducting survey and demarcating the F-line has not been followed. 4. Therefore, any action taken based on the impugned report dated 10.07.2013 of respondent No.1 would be in blatant violation of the concept of justice and fair play. Unless a fresh survey is held in the presence of both the parties, no further action can be taken against the petitioners. 5. For the aforementioned reasons, respondent Nos.1 and 2 are directed to hold a fresh survey after due notice to the petitioners as well as respondent No.5 and after demarcation of F-line, respondent No.1 shall submit a fresh report to respondent No.3. 5. For the aforementioned reasons, respondent Nos.1 and 2 are directed to hold a fresh survey after due notice to the petitioners as well as respondent No.5 and after demarcation of F-line, respondent No.1 shall submit a fresh report to respondent No.3. Respondent No.3 shall then consider such fresh report before taking further action against the petitioners on the report submitted by respondent No.5. 6. The Writ Petition is allowed to the extent indicated above. 7. As a sequel to allowing the writ petition, interim order dated 21.08.2013 is vacated and W.P.M.P.No.30036 of 2013 filed by the petitioners for interim relief shall stand disposed of as infructuous.