Judgment:
ORDER
A. Gopal Reddy, J.
1. Since common question of law, and issue that arises for consideration in all the writ petitions, it is expedient to dispose of all of them by this common order.
2. The petitioners claim to be the owners of properties abutting on either Side of the station road, Medchal, Ranga Reddy District which leads to National Highway No. 5. They assail the orders issued by the Executive Officer of the Medchal Grampanchayat dt. 8-11-2003 ordering removal of encroachment forthwith, failing to do so, necessary action will be initiated for removal of such encroachment to see that road is maintained with a width of 60 feet as was originally earmarked.
3. Brief facts, which are necessary for the disposal of these writ petitions, are as follows :
When there was a proposal for removing encroachment, all the petitioners earlier approached this Court by filing WP Nos. 18078/2003 and batch, which were disposed of by this Court by its order dt. 28-8-2003 directing the respondents not to dispossess the petitioners from their properties without having recourse to the procedure prescribed under the Land Acquisition Act or without the consent of the petitioners. In case, the respondents treat the petitioners as encroachers, they shall be entitled to proceed against them, duly following the procedure prescribed under A. P. Panchayat Raj Act or A. P. Land Encroachment Act. On disposal of the said writ petitions, notices dt. 24-10-2003 under Section 98 (1) and (2) of A. P. Panchayat Act, 1994 (for short 'the Act') were served on the petitioners informing that due to the said encroachment much inconvenience has been caused to the general public, thereby petitioners violated Sections 96, 97, 100 and 101 of the Act. The petitioners were further called upon to show cause why encroachment should not be removed as earmarked by R. & B. Department assuring them reasonably compensated towards damages suffered by them for removal of the encroachment by substituting an house site patta certificate equal to the basic register value. In the said notice, it was further informed to the petitioners that nearly about 135 premises have been removed duly compensating the occupiers of the premises through proceedings of the Mandal Revenue Officer in file No. B/3221/2003 i.e., by issuing house site certificates in S. No. 805 situate at Medchal. Questioning the said notice dt. 24-10-2003, the petitioners filed WP No. 22979/2003 and batch, which were disposed of by this Court at the stage of admission on 31-10-2003 observing as follows :
'.....Merely because this Court observed in the earlier batch of writ petitions that in case the respondents treat the petitioners as encfoachers, they shall be entitled to proceed against them duly following the procedure prescribed under the A. P. Panchayat Raj Act or A. P. Land Encroachment Act does not authorize the respondents to term the petitioners as encroachers in view of the averments made in the caveat petition. As the petitioners have already filed their explanations to the show cause notice dt. 24-10-2003, the respondents are under obligation to provide an opportunity of being heard to the petitioners to establish their claim over the property now sought to be demolished and thereafter final orders are to be passed. During the course of enquiry, it is revealed that there is no such encroachment of the public road as alleged in the notice dt. 24-10-2003 and if the petitioners are in lawful possession, it is needless to add that the respondents are under obligation to follow the procedure under the Land Acquisition Act for acquisition of the property and only after following such procedure they can take possession of the property for widening the road....'
Consequent upon the disposal of the said writ petitions, the impugned notices dt. 8-11-2003 were issued alleging that notice to the petitioners in terms of Section 98 (1) & (2) of the Act dt. 6-11-2003 has been duly served on the encroachers by affixing to the respective doors as occupants refused to take the same. In addition to the said service, Gram Panchayat Officer sent the notice to the occupants under registered post with acknowledgement due, but none of the occupants appeared on that day, namely, 8-11-2003 at the scheduled time. On verification of records available, the occupants have not possessed any title deeds of the land but they erected the premises with the permission of the Gram Panchayat and subsequently encroached into the : Gram Panchayat road contrary to the permission obtained and gradually reduced 60 feet wide road to 20 feet due to encroachment. In view of the same, the petitioners were called upon to remove the total encroachment forthwith. The impugned notices are challenged on various grounds stating the same do not contain house number as ordered by this Court in WP No. 22979/2003 and batch. Without making any endeavour to service the notices, the respondents affixed, notices on the houses of the petitioners in the night hours on 7-11-2003 directing them to appear on 8-11-2003 and independent notices were not given. The petitioners with abundant caution engaged a local advocate Sri Shiva Kumar to appear before the Gram Panchayat Office on 8-11-2003. Since it is a second Saturday, office was closed. The respondents made all arrangements by engaging proclaims etc., to demolish the structures on 8/9-11-2003 and started demolition of the houses on 9-11-2003. After starting demolition impugned notices were served and due to the commotion and protest made by the petitioners, demolition work could not be proceeded further.
4. The Sarpanch of Medchal Gram Panchayat filed counter affidavit stating that there was an existing 40 feet road abutting the schedule premises, which leads to National Highway to Railway Station which is against the original earmarked 60 feet wide road. As per the condition No. 3 of permission certificates granted to some of the petitioners, they have to construct the houses by leaving 5 feet from existing road but without leaving the said 5 feet the petitioners encroached into the public road and occupied 10 feet wide road and set hack area of 5 feet wide road. They have totally encroached into 15 feet wide road, which is liable to be removed. On disposal of W. P. Nos. 22979/2003 and batch, notices were issued on 6-11-2003 but the petitioners refused to receive the notice on 7-11-2003 and the same were affixed to the doors of the houses of the petitioners and one copy of notice was served through the registered post on the petitioners but the petitioners failed to appear before the Gram Panchayat on 8-11-2003. In view of the urgency to take up the; widening of the road, the Executive Officer passed impugned orders on 8-11-2003. There is no illegality or irregularity in passing the order. It is denied about engaging of men and material on the intervening night of 8/9-11-2003. The men were working every day as 135 eneroachers gave permission to demolish their houses. When further notice is contemplated in pursuance of the impugned notice, the petitioners approached this Court and obtained stay. The petitioners are related to Ex-Sarpanch and they are obstructing the developmental activities under taken by the Gram Panchayat with an intention to have political gain. The petitioners in W. P. No. 22979/2003 and batch and some others obtained permission in the year 1998 with all false and fabricated layouts and without approval from HUDA, therefore they cannot plead that they are in possession of the scheduled premises since more than 50 years. As per the file Backer consisting the applications of G. Pundarikam, Mrs. Niramala M. Bansod and as per the layouts approved by the then Sarpanch and the sale deeds clearly disclose that there was 60 feet wide Zilla Parishad Road on the southern side of the plots and as per the layouts approved during 1980 to 1982, 1989, and 1997-98 with regard to S. No. 1085, 1086, 1087, 1058 and 1059 there exists 60 feet wide road from National Highway No. 7 to Girmapur village. Many of the petitioners who obtained permission are under obligation to maintain 60 feet wide road but as they encroached into the public road, the respondent--Gram Panchayat rightly issued the Impugned orders for removal of encroachment.
5. Learned counsel for the petitioners contends that in the notice dt. 24-10-2003 no particulars were given about encroachment made by the petitioners except stating to remove the encroachment structures as earmarked by R & B Department nor in the alleged notice dt. 6-11-2003 which is continuation of earlier notice dt. 24-10-2003. Whereas in the impugned order dt. 8-11 -2003, it is mentioned that the petitioners were failed to appear on 8-11 -2003 which is happens to be a second Saturday. When the petitioners and Gram Panchayat office is situated in Medchal posting of letters from an adjacent village itself clearly demonstrate that the authorities want to deprive the petitioners of the reasonable opportunity as directed by this Court to establish their case. Even assuming the petitioners are encroachers the procedure contemplated as per rules issued in G. O. Ms. No. 555 Panchayat Raj and Rural Development (Rules) dt. 3-12-1999 has not been followed. In view of the same, entire action of the respondents is arbitrary and illegal.
6. Sri G. Shiva, learned counsel appearing for the second respondent while refuting the submissions made by the learned counsel for the petitioners contended that once 60 feet wide road is earmarked in the layouts and when some of the petitioners applied for permission and same were granted subject to their maintaining 40 feet wide road and leaving 10 feet set backs, the petitioners cannot make any construction in the set back portion nor make any encroachment into the public road. He further contended that out of 17 petitioners, only 3 petitioners have filed their documents to show that they have right over the property and other petitioners have not filed any documents. As per Sub-section (33) (c) of Section 2 of the Act, any private property or property belonging to Government which is shown as public road, every citizen has to keep the same intact. He lastly contended that without availing the right of appeal, the petitioners cannot maintain the present writ petitions.
7. In this context it is relevant to notice Section 98 of the Act, which authorizes removal of encroachments, which reads as under :
98. Removal of encroachments:--
(1) The executive authority may, by notice, require the owner or occupier of any building to remove or alter any projection, encroachment or obstruction other than a door, gate, bar or ground floor window, situated against or in front of such building and in or over any public road vested in such gram panchayat,
(2) If the owner or occupier of the building proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any local authority duly empowered in that behalf, and that the period, if any, for which the permission or licence is valid has not expired, the gram panchayat shall make reasonable compensation to every person who suffers damages by the removal or alternation of the same.
Every encroacher is entitled to a notice as contemplated under Rule 5 of the rules issued in G. O. Ms. No. 430 Panchayat Raj and Rural Development (Panchayat-IV) dt. 22-10-1998, which reads as under :
5. When any notice is required by Act, or by any rule, bye-law, regulation or order made thereunder, to be served on or sent to any person, the service or sending thereof may be effected :
(i) by giving or tendering the said notice to such person; or
(ii) if such person is not found by leaving such notice at his last known place of abode or business or by giving or tendering the same to some adult member or servant of his family; or
(iii) if such person does not reside in the village and his address elsewhere is known to the executive authority, by sending the same to him by registered post; or
(iv) if none of the means aforesaid be practicable by fixing the same in some conspicuous part of such last known place of abode or business.
8. Rules 2 and 3 issued in G. O. Ms. No. 555 Panchayat Raj and Rural Development (Rules) dt. 3-12-1999 read as under:--
'2. The Executive authority shall issue a notice after getting the street surveyed and fixing the outer line of the street, the extent of projection or encroachment made by the owner of the house and specify the manner of encroachment and shall fix a date for removal of such obstruction by an order.
3. If the person fails to comply with the notice, the Executive authority shall cause the obstruction removed from the street at the cost of such individual and collect it forthwith.'
If any person build any wall or erect any fence or other obstruction or projections or make any encroachment in any street, a notice as contemplated under Rule 2 of the rules issued in G. O. Ms. No. 555 dated 3-12-1999 has to be issued only after getting the street surveyed and fixing the outer line of the street and only if the person fails to comply with the notice, the Executive authority shall cause obstruction removed from the street at the cost of such individual and collect it forthwith.
9. Having had a conspectus of relevant statutory provisions, I shall now proceed to examine whether the respondents have complied with the statutory provisions before passing the impugned orders.
10. Admittedly, either in the show cause notice dated 24-10-2003 or in the notice dt. 6-11-2003, the particulars of the area which is encroached by each petitioner, namely, the extent of projection or encroachment are given nor fixing the date for removal of such encroachment as contemplated under Rule 2 of the rules issued in G.O.Ms. No. 555 dated 3-12-99. In view of the same, the contention of the learned counsel for the second respondent that only three petitioners have filed documents to establish their title and others have failed to file any documents cannot question the impugned orders, cannot be countenanced, when one this Court in earlier round of litigation directed the respondents to conduct an enquiry in the manner prescribed under the Act to term the petitioners as encroachers with necessary particulars, it is obligatory to follow the procedure.
11. The learned counsel for the respondents made an abortive attempt to justify the action contending that since the public road as defined under Section 2(33)(c) is earmarked in the lay outs sanctioned in the year 1980 onwards, the petitioners have to maintain such road margin and the respondents are justified in ordering to remove the same. Even assuming that the petitioners have not maintained road margin and they encroached into the said road margin, which will have the effect of reducing 60 feet wide road, but notice should indicate the area which was encroached by each petitioner and the construction made contrary to sanctioned plan as alleged, by calling upon them to remove such encroachment as contemplated under the rules.
12. What prompted the executive authority to post the notice from a different village on 7-11-2003 is not forthcoming and it cannot be imagined that the same will reach the petitioners on the same day itself enabling them to appear on the alleged date of enquiry i.e., 8-11-2003. Therefore, I am of the opinion that the said notice issued is only an eye wash and to make believe that they complied with the formalities as directed by this Court in the earlier writ petitions.
13. A conjoint reading of the rules as referred to above clearly postulate that efforts must be made to serve notice personally on the persons or tendering the same to some adult member or servant of his family and if none of the persons are available, the same has to be sent by registered post and if none of the means aforesaid practicable affixture of the same in some conspicuous part of such last known place. In view of the same, a question may arise whether there was any proper service of notice dt. 6-11-2003 calling upon the petitioners to appear for the enquiry on the scheduled date of hearing. The respondents have not produced any endorsement of the person who intended to serve on the petitioners or their inmates personally and on their failure to receive, he affixed the same on the doors of the houses of the petitioners under Panchanama drafted for such service of notices. Since the procedure for service of notice on the petitioners has not been adhered to, passing of final orders stating that petitioners failed to appear on the date of enquiry is only a make believe story. When the action proposed will have the effect of depriving their right to property, not following the procedure contemplated will cause immense prejudice to the petitioners. In view of the same, the impugned order passed by the first respondent is hereby set-aside. However, and the respondents are at liberty to issue necessary notice specifying the encroachment made by the petitioners including the area which has to be removed as contemplated under Rule 2 of the rules issued in G.O.Ms. No. 555 dated 3-12-99 and only on petitioners' failure to do so, Gram Panchayat shall follow necessary procedure for removing the encroachments, if any.
14. The writ petitions are accordingly allowed. No costs.