Quick Memorial Batist Church vs The State Of Ap & Ors.

The petitioner in WP.No.18160 of 2024 is aggrieved by the speaking order dated 05.08.2024 issued by the respondent No.3 requiring the petitioner to remove the unauthorised construction over 153 square yards of Government Poramboke Vaagu Site in S.No.126 of Yendada Village, Plot No.57, RTD Layout, Sagar Nagar. Respondent No.7 in W.P. No.18160 of 2024 has filed W.P.No.19462 of 2024, seeking to declare the action of the respondent authority in issuing the building permit order dated 25.11.2021 as illegal and arbitrary.

As the subject of both writ petitions is common, they are heard together for deciding them on merits by passing a common order. W.P.No.18160 of 2024 is taken up for hearing.

The learned counsel appearing for the petitioner submits that the petitioner is the owner and possessor of land admeasuring 299 square yards, Plot No.57 forming part and parcel of S.No.116/1, 2 and 5, 119/2P, 3 to 6, 8 to 13, 120/1, 122/1, 123 and 124. It is submitted that the Plot forms part and parcel of an approved layout of the Visakhapatnam Urban Development Authority. It is submitted that the petitioner purchased 299 square yards of land under two registered sale deeds dated 14.05.2019 and 19.09.2020 from Malireddy Balaram and Bolla Srinivas.

It is also submitted that the petitioner had applied for grant of building permission for constructing a residential house for a Pastor. The building permit order dated 25.11.2021 was granted for construction of stilt + ground+ two floors. It is submitted that Respondent No.3 issued a stop-work order dated 03.09.2022, calling upon the petitioner to stop further construction, claiming that part of the property falls in CRZ-2 and that the petitioner encroached upon land admeasuring 154 square yards in S.No.126 of Yendada Village.

It is also submitted that the petitioner submitted a representation dated 20.09.2022 to respondent Nos.2 and 3 and denied the allegation of encroachment and requested for conducting of a joint survey. It is submitted that respondent No. 3 issued a show cause notice dated 31.12.2022, requiring the petitioner to explain why the encroached government land ought not to be reclaimed without considering the petitioner's representations dated 05.09.2022, 20.09.2022 and 10.12.2022.

It is further submitted that the petitioner filed W.P.No.840 of 2023 challenging the impugned show cause notice dated 31.12.2022. It is submitted that the respondent No.7 also filed W.P.No.2441 of 2024 seeking directions of this Court to identify the encroachments. It is submitted that both writ petitions were disposed of by a common order dated 01.04.2024, directing the respondent No.3 Corporation to conduct a proper survey in the presence of the petitioner, identify any encroachment, and pass a reasoned order after granting an opportunity of hearing.

It is submitted that the respondent No.3 has passed a monotonous impugned order on 05.08.2024 without granting an opportunity of hearing. It is submitted that the impugned order is devoid of merit and that the petitioner is the lawful owner and possessor of land admeasuring 299 square yards, purchased by two separate registered sale deeds dated 14.05.2019 and 19.09.2020. It is also submitted that respondent No.3 could not have issued the impugned proceedings based on the joint survey report and determined the alleged encroachment by the petitioner.

The learned standing counsel appearing for the respondent No.3 submits that the petitioner has suppressed several facts from this Court in the present writ petition. It is submitted that the show cause notice was issued to the petitioner for deviations from the sanctioned plan and also for encroaching Government Vaagu Poramboke land admeasuring 153 square yards in S.No.126 of Yendada Village. It is submitted that the respondent corporation conducted a proper survey, considered the petitioner's explanation, and granted the petitioner an opportunity of personal hearing. It is submitted that the order passed is well-reasoned, and the petitioner was found to have encroached on land admeasuring 153 square yards, forming part and parcel of S.No.126 of Yendada village.

The learned Assistant Government Pleader appearing for the respondent No.6 has submitted the report of the survey and it is submitted that a joint survey was conducted along with the Mandal Surveyor and the subject property was inspected; it was found that the petitioner has undertaken construction over land admeasuring 316 square yards out of which land admeasuring 153 square yards is a Vaagu Poramboke land. It is a part and parcel of S.No.126. The site measurement details and the sketch annexed to the report clearly indicate the petitioner's encroachment.

The learned Assistant Government Pleader has placed on record the proceedings of the then Vice Chairman of VUDA, Visakhapatnam dated 27.04.2002, whereby the details relating to L.P.No.10 of 2000 are referred to, and the entire layout consists of 60 plots. The said proceedings show that the plot sizes fall into four categories. 28 plots are admeasuring 288.89 square yards, 18 plots admeasuring 266.57 square yards, 2 plots admeasuring 166.67 square yards and 14 plots admeasuring 260 square yards. It is submitted that no plot in the approved layout in L.P.No.10 of 2000 admeasuring 299 square yards. The revised layout in S.No.116/1, 2 and 5, 119/2P, 3 to 6, 8 to 13, 120/1, 122/1, 123 and 124 is also submitted, and the layout does not mention any plot admeasuring 299 square yards.

The learned counsel appearing for respondent No.7 submits that the respondent No.7 initially complained to the respondent authorities about the unauthorised construction by the petitioner, by encroaching on Government Vaagu Poramboke Land. It is submitted that soon after the issuance of the show cause notice by respondent No.3, the petitioner filed WP.No.840 of 2023 and undertook that no further construction would be undertaken. It is submitted that respondent No.7 also filed W.P.No.2441 of 2024, challenging the inaction of the respondent authorities in not taking appropriate action against the encroachments and unauthorised construction by the petitioner.

It is submitted that the petitioner undertook not to take up any further construction and the same is recorded in the docket proceedings of this Court on 06.01.2023 in W.P.No.840 of 2023. It is submitted that the petitioner has violated the said orders and continued to construct the building. After disposal of W.P.Nos.840 of 2023 and 2441 of 2024, the revenue and G.V.M.C. officials conducted a joint survey in the presence of the petitioner and respondent No.7 on 16.07.2024. It was found that the petitioner had encroached upon land admeasuring 153 square yards, and, as such, respondent No.3 passed detailed speaking orders on 05.08.2024.

It is submitted that the petitioner deliberately did not array the respondent No.7 as a party respondent in the writ petition. However, the petitioner is aware of the complaint raised by respondent No.7 against the petitioner. It is submitted that the respondent No.7 filed W.P.No.19462 of 2024 seeking to declare the action of the respondent authority in issuing the building permit order dated 25.11.2021 as illegal and arbitrary.

Heard the learned counsel for the petitioner, learned Standing Counsel for the respondent No.3, learned Assistant Government Pleader for respondent No.6 and the learned counsel appearing for the respondent No.7. Perused the material on record.

The primary ground on which the petitioner seeks to challenge the impugned order dated 05.08.2024 is that the speaking order is passed without considering the contention of the petitioner and no opportunity of hearing was granted. It is also the specific case of the petitioner that the petitioner purchased Plot No.57, admeasuring 299 square yards, vide registered sale deeds, and that the respondent authorities could not have determined the petitioner as an encroacher on government land based on the joint survey and report.

As seen from the pleadings and submissions, it is evident that the subject construction was disputed by the respondent No.7 and the respondent No.7 submitted representations to the respondent No.3 seeking their indulgence in restraining the petitioner from constructing over the encroached land and constructing in deviation of the sanctioned plan. The order dated 06.01.2023 reveals that the petitioner himself undertook not to take up any further construction pending the writ petition. The photograph furnished by respondent No.7 depicting the status of construction when the petitioner undertook before this Court, and the present status of the building, make it clear that the petitioner has completed the construction pending adjudication of the writ petitions. The petitioner was aware of this Court's directions dated 01.04.2024 while disposing of W.P.Nos.8403 of 2023 and 2441 of 2024. In such circumstances, the petitioner ought to have waited for completion of joint survey and awaited further orders from the competent authorities.

Insofar as the grounds raised for entertaining the writ petition, the respondent No.3 has passed a speaking order by considering the orders passed by this Court, the explanation submitted by the petitioner, and the explanation submitted by the respondent No.7. The speaking order also refers to the joint survey which was conducted on 16.07.2024 in the presence of the petitioner and the respondent No.7 and jointly identified an extent of 153 square yards of Government Poramboke Vaage site in Sy. No.126 as encroached portion.

The only method to determine whether any Government land is encroached or not is to conduct a survey. The competent authority must survey the site in the presence of all concerned and determine the extent of encroachment, if any. As seen from the impugned proceedings, the joint survey was conducted in the presence of all concerned, and the competent authorities also identified the extent of encroachment.

The revised layout of L.P.No.10 of 2000 also does not show any plot out of the 60 plots in the total layout with site admeasuring 299 square yards. Plot No. 57 cannot admeasure 299 square yards, as no such plot exists in the layout with such dimensions and extent.

The competent authority had determined the encroachment of the petitioner. The said encroachment is over Government Vaagu Poramboke Land. Appropriate action would have to be taken against any encroachment over Vaagu Poramboke Land, as such encroachments obstruct the free flow of drains and result in inundation of drain water and storm water, and ultimately result in flooding of a residential area. Encroachments over water bodies, canals, or Vaagu Poramboke land must be dealt with appropriately, promptly, effectively, and permanently by the competent respondent authorities.

On the facts of this case, the petitioner has not made out any case for interference with the impugned proceedings and the respondents would have to take appropriate action promptly and effectively and ensure the encroached Government Vaagu Poramboke Land is reclaimed permanently.

With the above observation, the W.P.No.18160 of 2024 is dismissed. Insofar as the petitioner's claim in W.P.No.19462 of 2024 is concerned, this Court addresses the grievance by dismissing W.P.No.18160 of 2024 and further directing the respondent authorities to initiate appropriate action in pursuance of the impugned proceedings therein; W.P. No.19462 of 2024 is closed. There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.