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2022 DIGILAW 71 (AP)

V. Rabani Basha v. State of Andhra Pradesh

2022-01-19

BATTU DEVANAND

body2022
ORDER : W.P.No.19003 of 2017 is filed by petitioner seeking the following relief: “to declare the impugned Notice of respondent No.4 Panchayat Secretary vide his Ref.No.3/2016, dated 24.05.2017(but signed on 31.05.2017) as illegal, arbitrary, unwarranted and in gross violation of principles of natural justice and in violation of Articles 14, 19, 21 and 300-A of the Constitution of India and consequently, direct respondent No.4 to consider the proposal forwarded by the petitioner in the prescribed format along with necessary fee and other documents through his counsel on 15.05.2017 and take suitable action as per law”. 2. W.P.No.14479 of 2021 is filed by the petitioner seeking the following relief : “declare the action of respondent No.4 in rejecting permission for construction of temporary sheds in an extent of Ac.0.50 cents situated in Kalasapadu RTC Bus Stand belonging to APSRTC in pursuance of Lease Agreement dated 20.10.2016 entered in between the petitioner and the APSRTC is illegal, arbitrary, unjust and violation of principles of natural justice and set aside the same and consequently, direction respondent NO.4 to grant permission to the petitioner for construction of temporary sheds in an extent of Ac.0.50 cents in Kalasapadu RTC Bus Stand, Kalasapadu Mandal, YSR Kadapa District”. 3. Heard the learned counsel for the petitioners, and the learned counsel for the respondents. Perused the material available on record. 4. The case of the petitioner is that the petitioner is a Diploma Holder in Electrical and Electronics Engineering. He registered as Class III Electrical Contractor with Andhra Pradesh State Road Transport Corporation. There was a proposal from A.P.S.R.T.C to let out the vacant premises of respective bus station in the state of Andhra Pradesh on payment of monthly license fee. As such, the vacant site admeasuring an extent of 2420 square yards or Ac.0.50 cents belonging to APSRTC in Kalasapadu Bus Station, YSR Kadapa District was intended to let out on lease to the interested contractors, who are interested to run the business in the bus station area on monthly license basis. At that time, he offered to take the premises on lease on a monthly rental of Rs.3,000/- with an increase of 10% periodically. He entered into lease agreement on 20.10.2016 with APSRTC in pursuance of the Letter No.E4/437(60)/16-RM ‘K’, dated 07.11.2016 of the Regional Manager, Kadapa. The lease is for a period of 10 years i.e., from 26.10.2016 to 25.10.2026. At that time, he offered to take the premises on lease on a monthly rental of Rs.3,000/- with an increase of 10% periodically. He entered into lease agreement on 20.10.2016 with APSRTC in pursuance of the Letter No.E4/437(60)/16-RM ‘K’, dated 07.11.2016 of the Regional Manager, Kadapa. The lease is for a period of 10 years i.e., from 26.10.2016 to 25.10.2026. ii) As per Condition No.4 of the said agreement, the petitioner has to obtain permission for construction of temporary sheds, if any, from the concerned Municipal/Panchayat Officers to run the business. He made an application to Respondent NO.4 on 24.11.2016 along with all relevant documents seeking permission for construction of temporary sheds, but the same was returned with an endorsement that “the receipt of challan of application should be in proper”. Thereafter, he made another application on 14.03.2017 along with rough sketch and all other relevant documents, but the same was also returned with certain objections. Thereafter, he caused a representation to respondent No.4 through his counsel on 15.05.2017 with copies to the District Collector and the District Panchayat Officer and others. The District Collector, immediately forwarded the same to respondent No.4 to bestow his personal attention and take necessary action. Thereupon, respondent No.4 issued another notice on 31.05.2017, directing him to remove the construction forthwith, otherwise, they would proceed as per law. Questioning the said Notice dated 31.05.2017, the petitioner filed W.P.No.19003 of 2017. Finally, he prayed to direct respondent No.4 to grant permission to the petitioner for construction of temporary sheds in the subject land. 5. Respondent No.3 in W.P.No.19003 of 2017 filed Counter Affidavit contending that after receipt of representation of the petitioner dated 08.05.2017, respondent No.4 issued Notice dated 09.12.2016 to the petitioner, informing that without approval of the Gram Panchayat, the petitioner are making constructions and the same will be demolished if the petitioner will not obtain permission from the Gram Panchayat. Respondent No.4 also addressed a Letter dated 20.03.2017, wherein the petitioner has been informed that the application submitted by the petitioner for approval of the Gram Panchayat is not in full shape and if the petitioner submits another applications with full details, necessary action will be taken in this regard. Respondent No.4 also addressed a Letter dated 20.03.2017, wherein the petitioner has been informed that the application submitted by the petitioner for approval of the Gram Panchayat is not in full shape and if the petitioner submits another applications with full details, necessary action will be taken in this regard. Thereafter, respondent No.4 had issued another Notice dated 24.05.2017 to the petitioner stating that the Gram Panchayat in its meeting held on 23.05.2017 has resolved to demolish the said illegal constructions and therefore, the petitioner was directed to remove the said illegal constructions within 5 days from the date of receipt of the notice, otherwise, further action will be taken as per law. Questioning the same, the petitioner filed W.P.No.19003 of 2017. Therefore, there are no merits in these Writ Petitions and the same are liable to be dismissed. 6. A counter affidavit has been filed by the 4th Respondent in W.P.No.19003 of 2017 contending that he has no knowledge about the lease between the APSRTC and the petitioner and that the petitioner never filed any such document before the Gram Panchayat. But, the petitioner did not obtain any permission from the Gram Panchayat for construction of shed in the said bus stand premises by furnishing all those documents. 7. Respondent No.4 further contended that the petitioner started construction without any approval and resolution passed by the Gram Panchayat in respect of the said construction, for which the Respondent issued notices, dated 25.11.2016, 09.12.2016, 15.12.2016 and 20.03.2017 requesting the petitioner and APSRTC to stop the illegal construction. But, the petitioner did not respond and he proceed with the construction. As such, the Gram Panchayat issued a notice, dated 24.05.2017 to the petitioner to remove the illegal construction. 8. Respondent No.4 further contended that the petitioner made an application to the Gram Panchayat to grant permission for construction of the sheds which are already under construction. The Gram Panchayat addressed a letter to the petitioner to submit the application by filing all the relevant documents. Thereafter, the petitioner submitted the same set of papers by adding DD for Rs.500/- through the legal notice, dated 15.05.2017. 9. Respondent No.4 filed counter in W.P.No.14479 of 2021 contending that the petitioner has filed an application, dated 24.11.2016 seeking to construct Tin shed in the site belonging to APSRTC and the same was returned on 25.11.2016 stating that the same is not properly submitted. 9. Respondent No.4 filed counter in W.P.No.14479 of 2021 contending that the petitioner has filed an application, dated 24.11.2016 seeking to construct Tin shed in the site belonging to APSRTC and the same was returned on 25.11.2016 stating that the same is not properly submitted. Thereafter, the petitioner filed another application, dated 14.03.2017 seeking permission to construct 5 tin sheds along with plan and the said application was also rejected by order, dated 20.03.2017 with certain objections. Thereafter, this Respondent issued notice, dated 24.05.2017 to the petitioner asking to remove the illegal construction raised by him in the subject land. 10. Respondent No.4 further contended that by questioning the said notice, the petitioner filed W.P.No.19003 of 2017 and the same is pending before this Hon’ble Court. The petitioner caused a legal notice, dated 15.05.2017 to this Respondent to process his application and accord approval by enclosing demand draft of Rs.500/- in favour of the Gram Panchayat. Respondent No.4 submits that the petitioner admitted the rejection of his application, dated 14.03.2017 in the legal notice. Respondent No.4 further submits that this Respondent conducted Grama Sabha to take the opinion of the villagers for grant of approval to the petitioner. In the Grama Sabha, majority of the villagers have expressed their displeasure to grant approve and the same was informed to the petitioner by letter, dated 01.07.2021. Under these circumstances, the 4th Respondent prayed to dismiss the writ petition. 11. Learned counsel for the petitioner filed Reply Affidavit to the Counter Affidavit filed by Respondent No.4 in W.P.No.14479 of 2021 reiterating the contents in the affidavits and contended that the petitioner filed W.P.No.19003 of 2017 questioning the Notice dated 24.05.2017, wherein the petitioner was directed to remove the unauthorized constructions without obtaining any permission from respondent No.4. During pendency of the said Writ Petition, on 01.07.2021 Respondent No.4 informed the petitioner stating that respondent No.4 conducted Grama Sabha and in that Grama Sabha, majority of the people were shown their unwillingness for sanction of permission to make temporary sheds in the subject land, and accordingly, the application of the petitioner is rejected. Aggrieved by the same, the present Writ Petition No.14479 of 2021 is filed. Learned counsel contends that the rejection of respondent No.4 in granting permission for construction of temporary sheds in the subject land is illegal and arbitrary. Aggrieved by the same, the present Writ Petition No.14479 of 2021 is filed. Learned counsel contends that the rejection of respondent No.4 in granting permission for construction of temporary sheds in the subject land is illegal and arbitrary. Respondent No.4 acted upon the instructions of the Sarpanch and Upa Sarpancha of the Gram Panchayat and surrendered to their political power. Therefore, he prayed to direct respondent No.4 to grant permission for construction of temporary sheds in the subject land. 12. Having considered the submissions of the respective parties and upon perusal of the material available on record, it appears that the petitioner is a Diploma Holder in Electrical and Electronics Engineering. He registered as Class-III Electrical Contractor with the Andhra Pradesh State Road Transport Corporation (for short “APSRTC”). The A.P.S.R.T.C was pleased to let out the vacant place situated at A.P.S.R.T.C Bus stand, Kalasapadu, for commercial purpose on payment of monthly license. The petitioner entered into an agreement of lease with A.P.S.R.T.C., for a period of 10 years commencing from 26.10.2016 to 25.10.2026. As per Clause 65 (a) of the Agreement, the petitioner is at liberty to make temporary structures at his own costs with approval of the licensor. As per Clause 65 (c) of the Agreement, the petitioner has to obtain necessary approval of the concerned Municipal Authorities for the layout plan for erecting temporary sheds at the vacant premises of the Bus Stand. For the purpose of making best use of the premises of Ac.0.50 cents of the site, the petitioner intends to construct five small rooms with cement bricks and zinc sheet roofing, so that he could store his electrical material and to start his own business. The concerned APSRTC authorities visited the premises and permitted the petitioner for construction of temporary structures. Therefore, the petitioner submitted a representation to respondent No.4 Gram Panchayat on 24.11.2016 along with Agreement and Bus Station Sketch for approval. Respondent No.4 returned the application of the petitioner with an endorsement to submit the same along with challan receipt and proper estimates, or else, the application of the petitioner would be rejected. On 09.12.2016, respondent No.4 issued Notice to the petitioner to stop the construction being undertaken without approval of the Plan. Respondent No.4 returned the application of the petitioner with an endorsement to submit the same along with challan receipt and proper estimates, or else, the application of the petitioner would be rejected. On 09.12.2016, respondent No.4 issued Notice to the petitioner to stop the construction being undertaken without approval of the Plan. On 14.03.2017, the petitioner submitted a representation to Respondent No.4 along with application in prescribed form, Blue Print and Plan in triplicate along with the Agreement with APSRTC and the sketch of the RTC Bus Stand and requested to inform necessary fee to grant permission. Again, on 20.03.2017, respondent No.4 returned the application of the petitioner with certain objections. As per the Petitioner, the objections are untenable as he has already submitted all the requisite documents along with the application dated 14.03.2017. On 12.05.2017, respondent No.4 addressed a Letter to Tahsildar, Kalasapadu Mandal, seeking police aid to demolish the construction made by the petitioner. Again, on 15.05.2017, the petitioner sent a representation to the District Collector, District Panchayat Officer and others in prescribed form along with all the requisite documents and a demand draft of Rs.500/-. Without considering the same and granting permission for construction, respondent No.4 issued Notice dated 31.05.2017, directing the petitioner to remove the constructions forthwith or else, they would proceed as per law. 13. Learned counsel for the petitioner submits that the action of respondent No.4 is crystal clear that they do not want to give approval to the petitioner and they want to see that the petitioner should incur loss at the instance of Sarpanch and Upa Sarpanch of the Gram Panchayat, who are no other than the father and son. Under the circumstances, the petitioner filed W.P.No.19003 of 2017 challenging the Notice issued by respondent No.4 in Reference No.3/2016, dated 24.05.2017. Till then, the issue is pending with the respondents and the petitioner is making correspondence and issued legal notices to the respondents. One thing is clear that in spite of entering the agreement with A.P.S.R.T.C, the petitioner could not use the land of the Bus Stand for commercial purposes as per the terms and conditions of the said agreement. There is no any whisper in the averment of the affidavits filed by the petitioner about the payment of lease amount to the APSRTC by the petitioner or not. There is no any whisper in the averment of the affidavits filed by the petitioner about the payment of lease amount to the APSRTC by the petitioner or not. If, lease amount is being paid by the petitioner to the APSRTC as per the terms and conditions of the agreement, definitely, the petitioner suffered serious loss and hardship as he is not utilizing the said land for any purpose. If, the petitioner is not paying any lease amount to the APSRTC due to the reason that he could not utilize the said land of APSRTC Bus Stand for any purpose, as the Gram panchayat did not grant permission for construction, definitely, it is loss to the APSRTC. Under these circumstances, the petitioner filed another W.P.No.14479 of 2021 against the intimation issued by respondent No.4/Gram Panchayat dated 01.07.2021, wherein it is stated that they could not grant permission in favour of the petitioner due to opposition of the villagers in the Gram Sabha. 14. We have carefully examined the Letter dated 01.07.2021 of the Panchayat Secretary i.e., Respondent No.4, addressed to the petitioner and to the Regional Manager of A.P.S.R.T.C. This Court is unable to accept the reason mentioned in the said letter for not considering the application of the petitioner for granting permission for construction in the APSRTC Bus Stand premises in the light of the agreement between the Petitioner and APSRTC. 15. It is appropriate to extract the relevant provisions of the Andhra Pradesh Panchayat Raj Act for better adjudication of the issue involved in this Writ Petition. “Section 6: Gram Sabha: (1) There shall come into existence a Gram Sabha for every village on the date of publication of notification under section 3. (2) A Gram Sabha shall consist of all persons whose names are included in the electoral roll for the Gram Panchayat referred to in section 4 and such persons shall be deemed to be the members of the Gram Sabha. (2) A Gram Sabha shall consist of all persons whose names are included in the electoral roll for the Gram Panchayat referred to in section 4 and such persons shall be deemed to be the members of the Gram Sabha. (3) The Gram Sabha shall meet at least twice in every year on such date and at such place and time as may be prescribed to consider the following matters which shall be placed before it by the Gram Panchayat, namely:– (i) annual statement of accounts and audit report; (ii) report on the administration of the preceding year; (iii) programme of works for the year or any new programme not covered by the budget or the annual programme; (iv) proposals for fresh taxation or for enhancement of existing taxes; (v) selection of schemes, beneficiaries and locations; and (vi) such other matter as may be prescribed. The Gram Panchayat shall give due consideration to the suggestions, if any, of the Gram Sabha. (4) The Gram Sabha shall observe such rules of procedure at its meetings as may be prescribed. (5) Every meeting of the Gram Sabha within 10 days from the date prescribed under subsection (3) shall be convened and presided over by the Sarpanch or in his absence by the Upa Sarpanch of the Gram Panchayat”. Section 99 : Power to allow certain projections and erections:- (1) The Executive Authority may, with the approval of the Gram Panchayat, grant a licence, subject to such conditions and restrictions as he may think fit to the owner or occupier of any building to put up verandahs, balconies, sunshades, weather frames and the like, to project over a public road vested in such Gram Panchayat; or to construct any step or drain covering necessary for access to the building. (2) The Executive Authority may grant a licence, subject to such conditions and restrictions as he may think fit for the temporary erection of pandal and other structures in a public road vested in such Gram Panchayat; or in any other public place the control of which is vested in such Gram Panchayat. (3) The Executive Authority shall have power with the approval of the Gram Panchayat, to lease the roadsides vested in such Gram Panchayat for occupation on such terms and conditions and for such period as the Gram Panchayat may fix. (3) The Executive Authority shall have power with the approval of the Gram Panchayat, to lease the roadsides vested in such Gram Panchayat for occupation on such terms and conditions and for such period as the Gram Panchayat may fix. (4) But neither a licence under sub-section (1) nor a lease under subsection (3) shall be granted if the projection, construction or occupation, as the case may be, is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. (5) The Government may, by notification, restrict and place under such control as they may think fit the exercise, by any Gram Panchayat of the powers under sub-sections (1) and (3). (6) On the expiry of any period for which a licence has been granted under this section the Executive Authority may without notice, cause any projection or construction put up under sub section (2) to be removed, and the cost of so doing shall be recoverable, in the manner hereinafter provided from the person to whom the licence was granted. Section 127: General provisions regarding licences and permissions:- (1) Every licence and permission granted under this Act or any rule or bye-law made under this Act shall specify the period, if any, for which, and the restrictions, limitations and conditions subject to which the same is granted and shall be signed by the Executive Authority or by some person duly authorized by him in this behalf. (2) …….. (3) Every order of the authority competent under this Act or any rule or bye-law made thereunder to pass an order refusing, suspending, cancelling or modifying a licence or permission shall be in writing and shall state the grounds on which it proceeds: Provided that every application for a licence or permission under this Act shall be disposed of within fifteen days from the date of receipt thereof or from the date of receipt of approvals or completion of other formalities prescribed failing which it shall be deemed that licence or permission is granted. (4) …….. (4) …….. (5) It shall be the duty of the Executive Authority to inspect places in respect of which a licence or permission is required by or under this Act, and he may enter any such place between sunrise and sunset, and also between sunset and sunrise if it is open to the public or any industry is being carried on in it at that time; and if he has reason to believe that anything is being done in any place without a licence or permission where the same is required by or under this Act, or otherwise than in conformity with the same, he may at any time by day or night without notice enter such place for the purpose of satisfying himself whether any provision of law, rules, bye-laws or regulations, any condition of a licence or permission or any lawful direction or prohibition is being contravened; and no claim shall lie against any person for any damage or inconvenience necessarily caused by the exercise of powers under this sub-section by the Executive Authority or any person to whom he has lawfully delegated his powers; or by the use of any force necessary for effecting an entrance under this sub-section. 16. As per Section 127(3) of A.P. Panchayat Raj Act, 1994, every application for a license or permission under the Act shall be disposed of within fifteen days from the date of receipt thereof or from the date of receipt of approvals or completion of other formalities prescribed, failing which, it shall be deemed that licence or permission is granted. 17. It appears that respondent No.4 failed to follow the procedure provided under Sections 99 and 127 of the A.P. Panchayat Raj Act. It is to be noted that Section 6 of the Andhra Pradesh Panchayat Raj Act is not providing the Gram Panchayat or its Secretary either to call for objections from the villagers or to obtain objections by conducting Gram Sabha for granting permission for construction within the Gram Panchayat limits. 18. In view of the above, it appears, due to some extraneous reasons best known to Respondent No.4, they are not considering the application submitted by the petitioner for construction of temporary Zink Sheet Sheds in the proposed area of APSRTC Bus Stand at Kalasapadu as per the Agreement executed by the petitioner and the APSRTC. 18. In view of the above, it appears, due to some extraneous reasons best known to Respondent No.4, they are not considering the application submitted by the petitioner for construction of temporary Zink Sheet Sheds in the proposed area of APSRTC Bus Stand at Kalasapadu as per the Agreement executed by the petitioner and the APSRTC. On every occasion, respondent No.4 is returning the application of the petitioner for new and flimsy grounds. In the Counter Affidavit filed by Respondent No.4 in W.P.No.14479 of 2021, at paragraph No.4, it is averred as under: “Accordingly, By Order dated 20.03.2017, the application dated 14.03.2017 of the petitioner was rejected and the same was sent to the Petitioner through Registered Post. Therefore, the contention of the petitioner that his application dated 14.03.2017 is pending consideration before this Respondent is absolutely false and incorrect”. 19. As per the contention of respondent No.4, after 20.03.2017, no application of the petitioner is pending with Respondent No.4. If it is so, it is very strange to note that how respondent No.4 informed the petitioner vide Intimation dated 01.07.2021 stating that they conducted Gram Sabha to seek approval of the villagers with respect to granting permission in favour of the petitioner by considering his application and majority of the villagers expressed their dissent for the same and due to that reason, the Panchayat could not grant permission. The contents of the Intimation dated 01.07.2021 discloses that the application of the petitioner is pending with Respondent No.4, till 01.07.2021 also. As already we expressed our view as stated above that the Gram Sabha has no role in granting permission to make any construction in the Gram Panchayat Limits as per the provisions of the Gram Panchayat Act, respondent No.4 has to consider the application of the petitioner in accordance with law. 20. As already we expressed our view as stated above that the Gram Sabha has no role in granting permission to make any construction in the Gram Panchayat Limits as per the provisions of the Gram Panchayat Act, respondent No.4 has to consider the application of the petitioner in accordance with law. 20. For the above stated reasons, these Writ Petitions are disposed of with the following directions: i) Respondent No.4 shall consider and grant permission to the petitioner to raise constructions in the APSRTC Bus Stand premises at Kalasapadu Village, as per the agreement dated 28.10.2016 executed between the APSRTC and the Petitioner within a period of Four (04) weeks from today; and ii) The petitioner shall proceed with the construction only in the APSRTC Bus Stand premises as per the agreement between the petitioner and the APSRTC by following the instructions in the permission to be issued by respondent No.4 Gram Panchayat; and iii) the petitioner shall not make any construction outside the APSRTC Bus Stand premises and to cause any obstruction for passage of the public; and 21. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this case shall stand closed.