(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to Issue any writ or direction or order, more particularly in the nature of Writ of Mandamus declaring the action of the respondents/in particular 2nd respondent in trying to grab, take over the private property of the petitioners that is the sandhu throve (116.2 feet X 6 feet) situate in sy.no. 850 Ac. 0-20 cents and land in Sy.no. 851 extent Ac.0-20 cents of madakalavaripalle village Grampanchayat of gopavaram mandal of kadapa district and trying to demolish the structures made by the petitioners in the said sandhu throve without following the due process of law and without following the principles of natural justice as illegal arbitrary and unconstitutional and consequentially direct the respondents in particular respondent no. 2 to not to take over or grab the private property of the petitioners that is the sandhu throve (116.2 feet X 6 feet) situate in sy.no. 850 Ac. 0-20 cents and land in Sy.no. 851 extent Ac.0-20 cents situate in madakalavaripalle village Grampanchayat of gopavaram mandal of kadapa district and not to demolish the structures made by the petitioners in the said property and pass

IA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents in particular respondent no. 2 to not to take over or grab the private property of the petitioners that is the sandhu throve (inll6.2 feet X 6 feet) situate in sy.no. 850 Ac. 0-20 cents and land in Sy.no. 851 extent Ac.0-20 cents situate in madakalavaripalle village Grampanchyat of gopavaram mandal of kadapa district and not to demolish the structures made by the petitioners in the said property and pass

Petition under Sections 10 to 12 of Contempt of Courts Act 1971 praying that in the circumstances stated in the affidavit file herein the High Court may be pleased to punish the respondent herein for wilful disobedience of the orders of this Hon'ble Court passed in W.P.No.10017 of 2024 dated 26-04- 2024 passed by his Lordship Sri Justice Cheemalapati Ravi Garu Under Section 10 to 12,14,15 and 16 of Act, 70 of 1971 (Contempt of Courts Act), and pass

IA NO: 1 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to the petitioners to file the reply affidavit for the counter of the contemnor in CC No. 2433 of 2024 in WP No. 10017/2024 pending before this honourable court and pass)

Common Order:

1. The grievance of the petitioners is that respondent no.2-Badvel Municipality, is trying to grab and takeover their private property i.e. ‘Sandhu throva’ of 116.2 feet x 6 feet (herein after referred to as the subject passage) situated in Survey No.850 in an extent of Ac.0-20 cents and in Survey No.851 in an extent of Ac.0-20 cents of Madakalavaripalle Village Gram Panchayat of Gopavaram Mandal of Kadapa District and is trying to demolish the structures made by them in the said sandhu throva, without following the due process of law and without following the principles of natural justice.

2. This Court, on 03.05.2024, granted status quo and the same was extended on 26.04.2024. Alleging disobedience of the orders of status quo, the writ petitioners filed Contempt Case vide C.C.No.2433 of 2024.

3. Since both the matters are interlinked, they are heard together and are being disposed of by this common order.

4. The contents of the writ affidavit, in brief, are that father of petitioner no.1 and father of petitioner no.2 are brothers and they jointly purchased an extent of Ac.0-20 cents of land in Survey No.850 and Ac.0-20 cents of land in Survey No.851 under registered sale deed dated 27.09.1971 and they got constructed one house for each therein by leaving a small space in between to provide passage to the scavengers and service maids to enter into the back yard of the houses for cleaning purposes. It is further stated that pursuant to banning of manual scavenging the utility of the subject passage became redundant and the same was being used by villagers for passing urinals and as open toilet during late nights and therefore, unable to bear the unpleasant smell, the petitioners got constructed a small wall at the northern side of the sandhu restraining the public from entering into. The said subject passage is purely a private proeprty belonging to the families of both the petitioners equally and it was never ever the property of the municipality. However, three days prior to filing the writ petition i.e. on 20.04.2024, a messenger from municipality came to the property and demanded the petitioners to remove the zinc sheets and also the wall constructed long back and when the petitioners approached the municipal authorities and furnished them with copy of the sale deed under which the property was purchased, for which the municipal authorities stated that they would take legal advice of their Standing Counsel. It is further stated in the affidavit that a day before filing the writ petition i.e. on 24.4.2024, the municipal authorities came with men and material and tried to demolish the temporary wall and remove the zinc sheets, which cannot be done without notice and being resisted by the petitioners they left the place proclaiming that they would come again.

                  It is further averred in the writ affidavit that on 16.04.2024, petitioner no.2 received a notice, which is dated 06.03.2024, from respondent no.2- Municipality through Whatsapp number on the name of his father, who died long back, directing to remove the wall and zinc sheets and thereafter no further notice was received. The subject passage is the private property of the petitioner and it was never the property of Municipality and further the Municipal Authorities cannot demolish the wall and remove the zinc sheets without following the procedure established under law. Hence, the writ petition.

5. Respondent No.2-Commissioner of Badvel Municipality, filed counter affidavit denying the averments of the writ affidavit further contending that the subject site is meant for drainage flow from NH-67 to YSR Water Plant in Anjaneyanagar and the subject passage is being used for disposal of drainage water since a long time and there is no other disposal point other than that for disposal of drainage coming out from the houses of petitioners and nearby public. It is further averred that the petitioners had constructed wall across drain on southern side and as a result drainage flow became stagnate and on the complaint made by the neighbours in Grievance Cell, the staff of the municipal corporation visited the subject site and issued preliminary encroachment notices in the name of the petitioners and their fathers , but as the petitioners refused to receive the notices, notices were sent through whatsapp as per the due process of law, the petitioners instead of submitting reply, filed this writ petition. It is further averred in the counter affidavit that as per Section 153 of Andhra Pradesh Municipalities Act, 1965, no person shall place or construct any fence, building, culvert, drain covering, drain or other structure or any street, railway or cable over, under, in or across, any public drain, or stop up, divert, obstruct or in any way interfere with, any public drain, whether it passes through public or private ground, but petitioners have constructed zinc sheet roof over existing drain without any permission from Municipal authorities and as per Section 35 of the Andhra Pradesh Municipalities Act, 1965 all public streets in any municipality whether made at the cost of the municipal fund or otherwise, shall vest in the council. Therefore the subject space vests with the municipality and the petitioners do not have any right over it irrespective of land nature. It is further averred that no permission whatsoever was taken for making constructions as required under Section 209 of the Act and only with a view to grab the property abutting the National Highway the construction was made. The writ petition being devoid of merit is liable to be dismissed.

6. Heard Sri S.S.Bhatt, learned counsel for the petitioners and the learned Standing Counsel for Municipalities, Rayalaseema.

7. Sri S.S.Bhatt, learned counsel for the petitioners, while reiterating the contents of the writ affidavit would contend that the subject passage is purely a private property and the municipality cannot object the petitioners from using the same for their family purposes. He would further contend that the municipality without issuing any notice and without following the due process of law cannot take possession of the subject passage from the petitioners and if at all the municipality wants to take possession of the subject sandhu throve, they have to follow the due procedure contemplated under law. Accordingly, prayed to allow the writ petition.

8. On the other hand, learned Standing Counsel for Municipalities, while reiterating the contents of the counter affidavit would contend that as per section 153 of the Andhra Pradesh Municipalities Act, no person shall place or construct across any public drain or stop up, divert, obstruct or in any way interfere with any public drain whether it passes through public or private ground, however, the petitioners have constructed zinc sheet roof over existing drain without permission from municipality. He would further contend that as per Section 35 of the Andhra Pradesh Municipalities Act, 1965, all sewers and drains whether made at the cost of municipal fund or otherwise, in, along-side or under any street, whether public or private, and all works, materials and things appertaining thereto shall vest in the council. He would further contend that since the petitioners constructed a zinc sheet roof over the existing drain, the authorities have issued notices to the petitioners dated 06.03.2024, but the petitioners did neither submit reply nor remove the encroachments across the drain. He would further contend that the said subject passage is the only way for letting out drain water of the petitioners and other residents in that area and there is no other way. He would further contend that for making constructions prior approval of the Commissioner is required, but the petitioners without obtaining any approval got constructed the zinc sheets roof and due to the said construction there was blockage of drain water and hence prayed to dismiss the writ petition.

9. Perused the material available on record and considered the submissions made by learned counsel for the parties.

10. There is no dispute regarding existence of subject passage in between the houses of the petitioners bounded by old walls of the houses of the petitioners on either side. According to the petitioners the said passage was being used exclusively by them for reaching the scavengers and after abolition of manual scavenging the said space is being used for ingress and egress of maids to reach the backyard. Whereas according to the respondents the subject passage is being used as a drainage canal, which is the only way to let out drain water of the neighbours as well as the petitioners.

11. The photographs filed along with the writ affidavit would go to show that there appears a drain like structures in between two walls constructed long back, whereas a wall was constructed closing the said drain with hallow bricks, appears new.

12. Section 35 of the Act deals with the vesting of Public Streets and Appurtenances in the Council, stating that all public streets in any municipality with the pavements, stones and other materials thereof and all works, materials and other things provided for such streets, all sewers, drains, drainage works, tunnel and culverts, whether made at the cost of the municipal fund or otherwise, in, along-side or under any street, whether public or private, and all works, materials and things appertaining thereto shall vest in the council.

13. As per the above section, the Municipality is claiming that the drain exist in subject passage even if it is private, vest in the council and since it is used for public drainage flow since long time, the petitioners does not have any right over it irrespective of nature of land, whether public or private.

14. Section 153 of the Act is relevant for the present purpose and the same reads thus:

                  “153. Building etc. not to be erected without permission over drains:- (1) without the permission of the council, no person shall place or construct any fence, building culvert, drain-covering, drain or other or any street, railway or cable over, under in or across, any public drain, or stop up, divert, obstruct or in any way interfere with, any public drain, whether it passes though public or private ground.

                  (2) The Commissioner may remove or otherwise deal with anything placed or constructed in contravention of Sub-section (1) as he shall think fit and the cost of so doing shall be recoverable from the owner thereof in the manner provided in Section 364”

15. As per the above section, without any permission, no person shall place or construct any construction or stop up, divert, obstruct or in any way interfere with any public drain whether it passes through public or private ground. The municipalities are claiming that the subject drain is a public drain. Admittedly, the petitioners did not take any permission from the Municipal Authorities before making construction over the subject passage as required under Section 209 of the Act, for no proof in that regard was filed by the petitioners.

16. The petitioners are claiming that the municipal authorities are contemplating to take possession of the property without following due process of law and petitioner no.2 received notice on 16.04.2024 through whatsapp which was dated 06.03.2024 issued in the name of his father, who died long back. Whereas the municipal authorities contend that the petitioners refused to receive encroachment notice dated 06.03.2024 and hence they were served through whatsapp and without submitting reply they filed this writ petition.

17. The petitioners are claiming the site covered under the subject passage to be their private property. The municipal authorities claim that the subject passage is being used to let out drainage water from the houses of the petitioners as well as the residents of that locality since a long time and even if the drain passes through the private property, since being used for letting out drainage water of the residents of the locality, the same vests with the council.

18. Be that as it may, this Court while exercising extraordinary jurisdiction under Article 226 of the Constitution cannot go into the disputed question of facts as to whether the subject passage belongs to the petitioner or is being used as a public drain and other aspects. The municipal authorities cannot demolish or interfere with possession without following due process of law, even if the petitioners made constructions without obtaining necessary permission as required under the Act. Therefore, this writ petition can be disposed of directing the authorities to follow due process of law.

19. Accordingly, the writ petition is disposed of, directing the authorities to issue notices to the petitioners inviting their explanation regarding the subject passage giving sufficient time for submission of explanation and on such the petitioners are at liberty to submit explanations putting forward their case. On receipt of such explanation, the authorities shall pass a reasoned order considering the explanation submitted. If no explanation is received within the time stipulated in the notices, the authorities shall pass orders basing on the material available. The entire exercise shall be completed within a period of two (02) months from the date of receipt of copy of this order. If the petitioners want to claim exclusive right and title over the subject passage, they have to approach a competent civil Court. There shall be no order as to costs.

20. Since the petitioners could not produce any evidence to substantiate their contention that the municipal authorities have demolished the wall after granting interim orders by this Court, this Contempt Case is closed.

                  Pending miscellaneous petitions, if any, shall stand closed.