INDRANI Vs. SECUNDERABAD CANTONMENT BOARD

JUDGEMENT

(1.) 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 dtd. 5/2/2018, 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 Sec. 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 dtd. 29/7/2017 under Ss. 257(2), 261(2)(a) and (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 dtd. 1/9/2017 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 dtd. 31/7/2017 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 dtd. 29/7/2017 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 24/8/2017 asking the petitioner to submit a reply to the notice dtd. 29/7/2017 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 dtd. 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 dtd. 18/7/2017 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 dtd. 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 dtd. 20/11/2017, the respondent No.1 issued a notice to the petitioner asking her to appear before respondent No.1 on 29/1/2018. Accordingly, the petitioner appeared before the respondent No.1 on 29/1/2018 and submitted her explanation and made a request to consider her representations dtd. 1/9/2017, 9/9/2017, 26/10/2017 and 4/12/2017 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 dtd. 5/2/2018 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 dtd. 5/12/2018 passed by the respondent No.1, is erroneous and ultimately prayed to set aside the same and allow the writ petition as prayed for.