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2025 DIGILAW 231 (AP)

Thanthadi Bhanumathi v. State of Andhra Pradesh

2025-02-06

V.SUJATHA

body2025
ORDER : V. Sujatha, J. Since the petitioners in both these writ petitions have raised rival allegations of encroachment against each other over the property which is said to have been assigned to them under possession certificates, both these writ petitions were heard together and are being disposed of by this common order. 2. W.P.No.7715 of 2021 is filed by one Thanthadi Bhanumathi. One D. Ramaraju, who is arrayed as respondent No.4 in the said writ petition, is the petitioner in W.P.No.9988 of 2021. Thanthadi Bhanumathi (petitioner in W.P.No.7715 of 2021) is arrayed as respondent No.5 in W.P.No.9988 of 2021. 3. W.P.No.7715 of 2021, under Article 226 of the Constitution of India , is filed seeking the following relief: “...to issue a Writ or Order or Direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents 2 and 3 herein in not considering the representation of the petitioner dated 08.03.2021 under acknowledgment as well as in denial of protection of the right of the petitioner in possession of the land in Door No.17-2-59/79b, Dairy Form Centre, Ward No. 11, Kakinada, East Godavari District in T.S.No.1967 in an extent of 55 Square Yards in possession certificate Ref/B/32/2006 dated 11.04.2006 as illegal, arbitrary and also oppose to the rules framed under the Schedule Castes and Schedule Tribes (Prevention of Atrocities Act) 1989 as well as oppose to Article 300-A of Constitution of India as well as oppose to all cannons of Justice consequentially direct the respondents 2 and 3 herein to consider the representation of the petitioner dated 08.03.2021 by protecting her possession over the property forthwith in Door No. 17-2-59/79b, Dairy Form Centre, Ward No. 11, Kakinada, East Godavari District in T.S.No.1967 in an extent of 55 square Yards in possession certificate Ref/B/32/2006 dated 11.04.2006.” 4. W.P.No.9988 of 2021 is filed seeking the following relief: “...to issue an appropriate writ more in the nature of Writ of Mandamus declaring the action of the Respondent Nos. 2 and 3 in not considering the application made online vide No. 51012, dated 02.04.2021 in pursuance of the directions of the Hon’ble High Court in W.P.No. 6821 of 2021 dated 23.03.2021 and on the other hand, aiding unofficial Respondents 5 to 7 in encroaching into the land of the Petitioner in an extent of Ac. 2 and 3 in not considering the application made online vide No. 51012, dated 02.04.2021 in pursuance of the directions of the Hon’ble High Court in W.P.No. 6821 of 2021 dated 23.03.2021 and on the other hand, aiding unofficial Respondents 5 to 7 in encroaching into the land of the Petitioner in an extent of Ac. 0-50 cents forming part of T.S.No.1967 (P) in the Revenue Ward No.11 situated at Dairy Farm, Kakinada- 533001, East Godavari District, which is the vacant patta land allotted to the Petitioner on 04.02.2009 and being assessed by the Respondent Nos.2 and 3 to property tax as being arbitrary, illegal and violative of Articles 14, 21 and 300-A of the Constitution of India apart from being in utter violation of the Andhra Pradesh Municipal Corporation Act, 1995 and the Rules framed thereunder and consequently direct the Respondents to consider the online application made by the Petitioner vide No.51012, dated 02.04.2021.” 5. The case of the petitioner in W.P.No.7715 of 2021 is as follows: (i) The petitioner, being a poor lady as well as a physically disabled person and belonging to schedule caste, was assigned 55 square yards of land in T.S.No.1967, Dairy Farm Centre, Ward No.11, Kakinada, and Possession Certificate vide Ref.B/32/2006 dated 11.04.2006 was also issued in her favour. She constructed a thatched house in the said land, to which Door No.17-2-59/79b was allotted, and the property was assessed to property tax and she has been regularly paying the taxes. (ii) While the matter stood thus, when she intended to construct a shed in the property in the year 2021, the 4 th respondent (petitioner in W.P.No.9988 of 2021), who is the neighbouring property owner tried to interfere with her possession alleging that the property belongs to him and since then, he has been making hectic efforts to encroach over her property. Aggrieved thereby, she submitted a representation dated 08.03.2021 to the respondent authorities requesting to take action against the 4 th respondent (petitioner in W.P.No.9988 of 2021). However, as no action was taken on the said representation, she invoked the jurisdiction of this Court. 6. Aggrieved thereby, she submitted a representation dated 08.03.2021 to the respondent authorities requesting to take action against the 4 th respondent (petitioner in W.P.No.9988 of 2021). However, as no action was taken on the said representation, she invoked the jurisdiction of this Court. 6. The case of the petitioner in W.P.No.9988 of 2021 is as follows: (i) The petitioner, being a poor person, was allotted vacant site in an extent of Ac.0.50 cents in T.S.No.1967(P), Revenue Ward No.11, Dairy Farm, Kakinada, vide possession certificate dated 04.02.2009, and since then, he has been in possession of the said property by paying the requisite taxes regularly. (ii) While that being so, the respondent No.5 (petitioner in W.P.No.7715 of 2021) along with respondent Nos.6 and 7 tried to encroach over his land and, therefore, he proposed to construct a compound wall around his land, to which the authorities of the respondent Corporation objected. Therefore, he had filed W.P.No.6821 of 2021 before this Court and the same was disposed of, vide order dated 23.03.2021, reserving liberty to him to follow the procedure contemplated under Section 428 of the GHMC Act by seeking permission from the Municipal Corporation for the purpose of constructing compound wall. (iii) In pursuance of the above order, he made an online application dated 02.04.2021 seeking permission from the Corporation to raise a compound wall around his vacant plot. He has also made an application to the Commissioner of the Corporation on 26.04.2021, seeking to conduct survey of his property. However, neither of those two applications was considered; while on the other hand, the unofficial respondents continued their attempts to encroach over his property. Hence, he filed W.P.No.9988 of 2021 seeking a direction to the authorities to consider his online application dated 02.04.2021 seeking permission for construction of compound wall. 7. Subsequent to the filing of W.P.No.9988 of 2021, the petitioner therein filed a Memo vide USR No.28269 of 2021, bringing to the notice of this Court that pursuant to his application seeking survey of his land, the authorities have conducted survey and the survey report was received by him after filing of the writ petition. He filed copy of the survey report dated 10.05.2021, issued by the Town Surveyor of Kakinada Municipal Corporation, to show that the boundaries and extent of the property shown in the possession certificate issued in his favour tallied with the ground measurements during the survey. He filed copy of the survey report dated 10.05.2021, issued by the Town Surveyor of Kakinada Municipal Corporation, to show that the boundaries and extent of the property shown in the possession certificate issued in his favour tallied with the ground measurements during the survey. Along with copy of the said survey report dated 10.05.2021, the petitioner has also filed an endorsement dated 06.05.2021 issued by the Tahsildar, Kakinada Urban, confirming grant of possession certificate dated 04.02.2009 in his favour. 8. The Commissioner of Kakinada Municipal Corporation filed counter-affidavits, wherein it is stated that as both the writ petitioners are having possession certificates for the same site in the EWS Layout L.P.No.122/1998, a letter vide ROC.No.2626/2021/G3/1 dated 12.05.2021 has been addressed to the Tahsildar, Kakinada, to ascertain about the genuineness of possession certificates issued in favour of the petitioners and reply is awaited. It is further stated that the subject property falls in the green belt area and also high tension lines are passing above the site as per EWS layout L.P.No.122/1998 and hence, no permission can be granted for raising constructions in the said property. It is further stated that the Corporation did not receive any representation from the petitioner in W.P.No.7715 of 2021 regarding encroachments and, in fact, she has commenced constructions without obtaining permission from the Corporation, as such, a notice dated 22.06.2021 was issued under Sections 462, 401, 405 and 406 of the APMC Act, 1955, directing her to stop the construction activities. So far as the application dated 02.04.2021 submitted by the petitioner in W.P.No.9988 of 2021 seeking permission to raise compound wall is concerned, it is contended by the Corporation that the said application is only an RTS (Request Tracking System) application, which is for the purpose of updating the data like town survey number, block number, extent of proposed site and land usage in APDPMS Master data, and only after approval of RTS, the applicant is entitled to apply for building permission through online. It is further contended that the said RTS application could not be considered due to legal dispute. In view of the above circumstances, it is contended that the petitioners are not entitled for the reliefs prayed for in the writ petitions. 9. It is further contended that the said RTS application could not be considered due to legal dispute. In view of the above circumstances, it is contended that the petitioners are not entitled for the reliefs prayed for in the writ petitions. 9. Rebutting the same, the petitioner in W.P.No.9988 of 2021 filed a reply-affidavit, stating that in view of the survey report dated 10.05.2021 of the Town Surveyor and the endorsement dated 06.05.2021 issued by the Tahsildar, Kakinada Urban, confirming grant of possession certificate dated 04.02.2009 in favour of the petitioner in W.P.No.9988 of 2021, the Corporation cannot dispute the validity of the possession certificate of the said petitioner. It is further contended that the properties claimed by the petitioners are not one and the same and they are different properties, as can be seen from the extents and boundaries of the properties mentioned in the respective possession certificates. 10. Today, when the matters are taken up for hearing, learned Assistant Government Pleader for Revenue has furnished a copy of written instructions received from the Collector & District Magistrate, Kakinada, along with the report of the Tahsildar, Kakinada Urban (FAC), wherein it is stated that the land claimed by both the petitioners is one and the same and that the authenticity of the possession certificates issued in favour of the petitioners is in doubt and cannot be confirmed as the original files are not traceable. 11. As can be seen from the above facts and circumstances, the petitioner in W.P.No.7715 of 2021 is claiming rights and possession over an extent of 55 square yards in T.S.No.1967, Ward No.11, Kakinada, by virtue of possession certificate dated 11.04.2006, whereas the petitioner in W.P.No.9988 of 2021 is claiming rights and possession over an extent of Ac.0.50 cents in T.S.No.1967(P), Ward No.11, Kakinada, by virtue of possession certificate dated 04.02.2009. According to the authorities, both the properties are one and the same and the genuineness of both the possession certificates is in doubt. 12. Though the authorities are placing reliance on the report of the Tahsildar to contend that both the properties are one and the same, but however, it is not known as to what was the basis for the said report and there is no material on record to show that any survey has been conducted in the presence of the petitioners prior to submission of the said report by the Tahsildar. Further, as can be seen from the possession certificates filed by the petitioners, there is difference in both the extents as well as the boundaries of the properties mentioned. In the possession certificate of the petitioner in W.P.No.7715 of 2021, the extent of the land is mentioned as 55 square yards and the north and south boundaries of the property are mentioned as vacant land and road respectively. Whereas, in the possession certificate of the petitioner in W.P.No.9988 of 2021, the extent of the land is shown as 50 square yards and the north and south boundaries are shown as 40 ft. road and others’ site respectively. 13. In these circumstances, this Court is of the considered opinion that it would be appropriate for the authorities to conduct a survey of the lands in the presence of both the parties, to determine the actual ground position and ascertain whether the properties are one and the same or different. With regard to the contention that the genuineness of the possession certificates is in doubt and their authenticity cannot be confirmed due to non-availability of original records, it is to be noted that the authorities cannot draw any adverse conclusion regarding the genuineness of the possession certificates, unless a proper enquiry is conducted in that regard in accordance with due process of law. 14. In view of the above discussion, this Court deems it appropriate to direct the concerned respondent authorities to conduct a survey in respect of the extents of land claimed by the petitioners under the respective possession certificates, in the presence of both the petitioners, duly issuing a prior notice to them and following the due procedure, within a period of four weeks from the date of receipt of a copy of this order, and communicate a copy of the survey report to both the petitioners. Thereafter, based on the findings of the survey report, it is open for the petitioner in W.P.No.9988 of 2021 to apply afresh to the municipal authorities for permission to construct a compound wall, if he is entitled as per law, as the online application dated 02.04.2021 submitted by him was stated to be only an RTS (Request Tracking System) application, which is for the purpose of updating the data. 15. With the above directions, the writ petitions are disposed of. No order as to costs. 15. With the above directions, the writ petitions are disposed of. No order as to costs. As a sequel, interlocutory applications, if any, pending shall stand closed.