Research › Search › Judgment

Telangana High Court · body

2022 DIGILAW 169 (TS)

Indrani v. Secunderabad Cantonment Board

2022-03-09

SHAMEEM AKTHER

body2022
ORDER : This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner, seeking to declare the action of respondent No.1 in issuing the impugned proceedings No. SCB/EB/CW/D.No.3-53-64/Near Asha Officers CHS/T’gherry/ 429 dated 05.02.2018, as illegal, arbitrary, violative of principles of natural justice and contrary to the provisions of Cantonment Act, 2006 and Article 300-A of the Constitution of India and consequently, set aside the same. 2. Heard the submissions of Sri A.Narasimha Rao, learned counsel for the petitioner, Sri K.R.Koteswara Rao, learned Standing Counsel for Cantonment Board, appearing for respondent No.1, Sri Gudiseva Narasimha, learned counsel for unofficial respondent No.2 and perused the record. 3. The case of the petitioner and the contentions raised on her behalf are that in the year 1988, the husband of the petitioner by name Late Sri V.Jaipal, was allotted Plot No.48, which was assigned House No.3-53-64, situated at New Gandhi Nagar, behind community Hall, Near Asha Officers’ Colony, Ward No.7, Trimulgherry, Secunderabad, by the erstwhile Andhra Pradesh State Housing Corporation Limited, on Weaker Section Housing Society Scheme. The requisite instalments for obtaining the subject property were paid by the husband of the petitioner and he was also granted Patta certificate. After the death of the husband of the petitioner, the petitioner succeeded the subject property and she is in occupation of the same. While so, the respondent No.1-Cantonment Board issued a notice dated 29.07.2017 under Sections 257(2), 261(2)(a) & (3) of the Cantonments Act, 2006 (for short “the Act”) to the petitioner alleging that she has constructed a boundary wall measuring 2 x 27’ x 5’-0” and 1 x 37’ 6” x 5’-0” by encroaching the public road situated in front of her house without obtaining any permission from the respondent No.1 and to remove the same within three days from the date of receipt of the said notice. The petitioner submitted a detailed reply dated 01.09.2017 to the respondent No.1 stating that the husband of the petitioner was allotted the subject property and during his lifetime, he constructed three rooms and one toilet along with the compound wall in the year 1988 and that the husband of the petitioner died on 14.12.2014 and the petitioner and her children are residing in the said premises. It is also submitted that since the petitioner resisted illegal attempt of a member of the respondent No.2’s family to encroach the petitioner’s property, the respondent No.2 filed a complaint before the respondent No.1. The respondent No.2 filed a Writ Petition No.23477 of 2017 before this Court against the respondent No.1 and the petitioner herein stating that respondent No.1 is not taking any action to demolish the wall constructed by the petitioner. In the said writ petition, this Court, vide interim order dated 31.07.2017 in W.P.M.P.No.29010 of 2017 in the said writ petition, considering the submission of the Standing Counsel for respondent No.1 that a notice dated 29.07.2017 has been issued to the petitioner herein and necessary action has already been initiated acting on the complaint of the respondent No.2 herein, directed the respondent No.1 to complete the entire exercise within a period of eight weeks from the date of the said order, after giving an opportunity to the petitioner herein and pass necessary orders in accordance with law. Pursuant to the said order of this Court, a notice was issued to the petitioner by the respondent No.1 on 24.08.2017 asking the petitioner to submit a reply to the notice dated 29.07.2017 within a period of seven days. Immediately, the petitioner herein filed a reply reiterating her submissions made in the earlier reply and also stated that she has not encroached any public property. However, the respondent No.1 passed the order dated 18.10.2017 directing the petitioner to remove the compound wall within seven days from the date of receipt of the proceedings, as the compound wall was constructed without permission. In the said order, it was also stated that the petitioner was found to be in possession of excess land than the land shown in patta document. It is contended that the respondent No.1 passed order dated 18.07.2017 ignoring the fact that the compound wall was constructed in the year 1988 itself and there is no encroachment of any public road and there is no ingress and egress of public. It is contended that the respondent No.1 passed order dated 18.07.2017 ignoring the fact that the compound wall was constructed in the year 1988 itself and there is no encroachment of any public road and there is no ingress and egress of public. Further, since the respondent No.1 passed the said order without affording any opportunity to the petitioner, the petitioner was constrained to file Writ Petition No.35294/2017 before this Court and this Court, vide common order dated 20.11.2017 was pleased to dispose of W.P.No.35294/2017 filed by the petitioner herein along with W.P.No.23477/2017 filed by the respondent No.2 herein, directing the petitioner herein and the respondent No.2 herein to submit their representations before the respondent No.1 and on filing such representations, the respondent No.1 shall pass a common order; and if a decision is taken to remove the encroachment, firstly to give reasonable time, and in default of removing encroachment within the time granted by respondent No.1, the encroachment shall be removed. The said exercise was directed to be completed within two (2) months from the date of the order. Pursuant to the said common order dated 20.11.2017, the respondent No.1 issued a notice to the petitioner asking her to appear before respondent No.1 on 29.01.2018. Accordingly, the petitioner appeared before the respondent No.1 on 29.01.2018 and submitted her explanation and made a request to consider her representations dated 01.09.2017, 09.09.2017, 26.10.2017 and 04.12.2017 before passing orders and also requested for a copy of layout pertaining to Gandhi Nagar Welfare Society in Sy.No.194/3, Gandhinagar, Trimulgherry. But till date the copy of the layout has not been furnished to the petitioner. The respondent No.1 issued impugned order dated 05.02.2018 holding that the petitioner has illegally erected compound wall without obtaining valid permission, which has resulted in encroachment on public road to an extent of 121.16 sq.yards and directed the petitioner to remove the said illegal construction within a period of three weeks from the date of its order. It is contended that the action of the respondent No.1 is per se without jurisdiction, illegal, arbitrary and petitioner has not encroached any public road. Further, it is for the State Government to examine the issue and pass necessary orders. The impugned order dated 05.12.2018 passed by the respondent No.1, is erroneous and ultimately prayed to set aside the same and allow the writ petition as prayed for. 4. Further, it is for the State Government to examine the issue and pass necessary orders. The impugned order dated 05.12.2018 passed by the respondent No.1, is erroneous and ultimately prayed to set aside the same and allow the writ petition as prayed for. 4. The respondent No.1-Cantonment Board filed counter. It is contended on behalf of respondent No.1 that property in question is “B-2” private land under the management of the State Government and the State Government has allotted a piece of land to the beneficiaries and one such plot admeasuring 99 sq.yards was allotted to the husband of the petitioner. However, upon inspection of the subject property by the officials of the respondent No.1, it was found that the petitioner is in illegal occupation of 121.16 sq.yards of land, which is a public property and constructed a compound wall by encroaching the public road. The copy of sketch plan of Door No.3-53-64, situated at New Gandhi Nagar, Near Asha Officers Colony, Secunderabad cantonment, annexed to the counter affidavit, demonstrates that total built up area is 935.79 sq.ft (103.97 sq.yards) and the total open area including compound wall is 1045.75 sq.ft (116.19 sq.yards). Thus the total extent is 1981.54 sq.ft (220.16 sq.yards). The petitioner has encroached road area admeasuring 32 ft x 16 ft by constructing compound wall. Therefore, the respondent No.1 directed the petitioner to remove the encroachment of public property and road as well as compound wall. The action of respondent No.1 is strictly in accordance with law and as per the orders of this Court in W.P.Nos.35294 and 23477 of 2017. Further, the respondent No.1 has power to remove the compound wall in terms of the mandate given under section 261(1) of the Act. After affording an opportunity to both parties and thoroughly enquiring into the allegations and also making physical inspection of the property in question, the respondent No.1 passed the impugned order. There is no illegality or arbitrariness in the impugned order, as alleged and ultimately prayed to dismiss the writ petition. 5. The unofficial respondent No.2 filed counter. It is contended on behalf of unofficial respondent No.2 that the petitioner was granted an extent of 99 sq.yards of site in Plot No.48 only, but when the surveyor measured the subject property, the petitioner was found in occupation of 121.16 sq.yards. 5. The unofficial respondent No.2 filed counter. It is contended on behalf of unofficial respondent No.2 that the petitioner was granted an extent of 99 sq.yards of site in Plot No.48 only, but when the surveyor measured the subject property, the petitioner was found in occupation of 121.16 sq.yards. It is further submitted that 20 feet public road, which was in existence since the date of layout, is situated behind the Welfare Community Hall of S.C Welfare Society, New Gandhi Nagar. The petitioner has encroached the public road by constructing the compound wall and closed the public road. Under these circumstances, the respondent No.1, by way of impugned proceedings, dated 05.02.2018, rightly directed the petitioner to remove the illegal construction within a period of three weeks and ultimately prayed to dismiss the writ petition. 6. In view of the above submissions, the point for determination in this writ petition is: “Whether the petitioner is entitled for the relief sought in this Writ Petition?” 7. POINT: As seen from the material placed on record, this Court vide common order, dated 20.11.2017, passed in W.P.No.35294/2017 (filed by the petitioner herein) and W.P.No.23477/2017 (filed by the respondent No.2 herein), was pleased to order as follows: “On 24.10.2017, this Court has directed the Secunderabad Cantonment Board-1st respondent to measure the actual extent in possession and enjoyment of petitioners together with the extent of encroached portion. The report dated 02.11.2017 is filed by 1st respondent. Now the report discloses the present state of affairs. Therefore, the petitioners in these two writ petitions are given one (1) week time from today to file representations before the 1st respondent with appropriate prayers. The 1st respondent on receiving the representations passes a common order and if a decision is taken to remove the encroachment, firstly gives reasonable time and in default of removing encroachment within the time granted by 1st respondent, the encroachment is removed. The said exercise shall be completed within two (02) months from today. The writ petitions are accordingly disposed of. No order as to costs.” Pursuant to the above order, the respondent No.1 issued a notice to the petitioner, examined the whole issue in detail and passed the impugned order dated 05.02.2018. The operative portion of the impugned order, dated 05.02.2018, reads as follows: “8. The writ petitions are accordingly disposed of. No order as to costs.” Pursuant to the above order, the respondent No.1 issued a notice to the petitioner, examined the whole issue in detail and passed the impugned order dated 05.02.2018. The operative portion of the impugned order, dated 05.02.2018, reads as follows: “8. In view of the above, since the land is not under the management of Cantonment Board, Secunderabad and no layout plan is available for the same, it is not possible to ascertain if the compound wall was so constructed as to encroach on public road. However as per the ground measurements Smt. Indrani is in occupation of 121.16 sq. yards more than her entitlement as per the patta given by State Government. It is therefore a case of encroaching on public land to that extent. It is therefore considered take appropriate action for encroachment of land under their management. However, being the municipal body of the Cantonment Board, it is also relevant to address the illegal construction of compound wall without obtaining the permission of the Chief Executive Officer of the Cantonment Board as is required under Section 261(1) of Cantonments Act, 2006. 9. Therefore in accordance with the order of the Hon'ble High Court of Judicature at Hyderabad in WP No 35294 & 23477 dated 20.11.2017 the undersigned having come to a considered opinion that Smt. Indrani has indeed illegally erected compound wall without obtaining valid permission which has resulted in encroachment on public land to an extent of 121.16 sq yds., hereby directs that the said illegal construction covering land to the extent of 121.16 sq. yards shall be removed by Smt.Indrani within a period of three weeks from the date of this order. A copy of this order is marked to the concerned revenue authorities to take immediate necessary action against the pattadar as per their rules.” A perusal of the aforesaid operative portion of the impugned order clearly indicates that as per the ground measurements, the petitioner is in possession of 121 sq.yards of land, which is more than the land allotted to her husband i.e., 99 sq.yards. It was also observed in the impugned proceedings that it is imperative to refer the matter to the concerned department of State Government to take appropriate action for encroachment of land under their management. 8. It was also observed in the impugned proceedings that it is imperative to refer the matter to the concerned department of State Government to take appropriate action for encroachment of land under their management. 8. Here, it is apt to extract Section 261 of Cantonment Act, which reads as follows; 261. Boundary walls, hedges and fences.—(1) No boundary wall, hedge or fence of any material or description shall be erected in a cantonment without the permission in writing of the Chief Executive Officer. (2) The Chief Executive Officer may, by notice in writing, require the owner or lessee of any land in the cantonment— (a) to remove from the land, any boundary wall, hedge or fence which is in his opinion unsuitable, unsightly or otherwise objectionable; or (b) xxxx; (c) xxxx; (3) The Chief Executive Officer may, by notice in writing, require the owner, lessee or occupier of any such land to cut or trim any hedge on the land in such manner and within such time as may be specified in the notice. A plain reading of the above extracted Section 261 of the Act makes it clear that the Chief Executive Officer may, by notice in writing, require the owner or lessee of any land in the cantonment, to remove from the land, any boundary wall hedge or fence, which is, in his opinion, unsuitable, unsightly or otherwise objectionable, within such time as may be specified in the said notice. Under these circumstances, issuance of the impugned notice by respondent No.1 per se cannot be said to be illegal or without jurisdiction. Further, there is ample evidence on record to substantiate that the petitioner constructed the compound wall without obtaining permission. Furthermore, the copy of sketch plan of Door No.3-53-64, situated at New Gandhi Nagar, Near Asha Officers Colony, Secunderabad cantonment, filed along with the counter affidavit of respondent No.1, demonstrates that the total built up area is 935.79 sq.ft (103.97 sq.yards) and the total open area, including compound wall, is 1045.75 sq.ft (116.19 sq.yards). Thus the total extent is 1981.54 sq.ft (220.16 sq.yards). Thus, it is apparent that the petitioner encroached the road area measuring 32 ft x 16 ft by constructing a compound wall, which falls on the eastern side of Plot No.48 belonging to the petitioner. Thus the total extent is 1981.54 sq.ft (220.16 sq.yards). Thus, it is apparent that the petitioner encroached the road area measuring 32 ft x 16 ft by constructing a compound wall, which falls on the eastern side of Plot No.48 belonging to the petitioner. In terms of the common order dated 20.11.2017 passed by this Court in W.P.Nos.35294 and 23477 of 2017, the respondent No.1, after affording opportunity to the petitioner, considered the whole material on record and passed the impugned order dated 05.02.2018 holding that the petitioner, without obtaining valid permission, illegally erected compound wall encroaching public land and hence, directed the petitioner to remove the said illegal construction covering land to the extent of 121.16 sq. yards within three weeks from the date of the said order. Further, it is apt to state that the scope of judicial review under Article 226 of the Constitution of India is very limited. This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, will not ordinarily interfere with the decision of an authority unless it is found that such a decision is capricious, mala fide, arbitrary, without jurisdiction or that the decision making process is flawed. In the instant case, there is nothing to hold that the impugned order, dated 05.02.2018 passed by respondent No.1 is capricious, mala fide, arbitrary or without jurisdiction. Further, there is no violation of principles of natural justice by respondent No.1 in passing the impugned order, dated 05.02.2018. The petitioner is not entitled for the relief sought in this writ petition. The writ petition is devoid of merit and is liable to be dismissed. 9. Accordingly, this Writ Petition is dismissed. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed. There shall be no order as to costs.