AP High Court Orders Action On Guntur Encroachments | Consent Of Private Owners Not Needed Under Section 392 | Commissioner Can Alter Or Demolish Structures
Safiya Malik
The High Court of Andhra Pradesh Single Bench of Justice Nyapathy Vijay has directed the Commissioner of Guntur Municipal Corporation to verify the width of a disputed street and proceed with necessary enforcement under Section 392 of the Act, despite objections raised by private property owners. The Court ordered the Commissioner to obtain a report within two weeks, issue notices to opposing residents thereafter, and act upon their response within a stipulated timeframe. The writ petition was disposed of with these directions and no order as to costs.
The writ petition was filed seeking a direction against the failure of the Guntur Municipal Corporation to remove alleged illegal encroachments by private residents on a street situated in 4th Lane, A.T. Agraharam, Bandla Bazar, Venkatakrishna Colony, Guntur. The petitioner and the unofficial respondents (Respondent Nos.3 to 8) were residents of the same lane. The dispute arose when a meeting of the lane’s residents was convened on 28.12.2022, wherein a consensus was reportedly reached to remove obstructions to facilitate the laying of a new and wider road. A formal representation to this effect was submitted to the Town Planning Department.
The petitioner claimed to have provided a setback of 6 feet in accordance with the proposed road expansion. However, he alleged that the unofficial respondents encroached upon the road area without leaving any setback. Consequently, the petitioner approached the 31st Ward Corporator of Guntur Municipal Corporation to address the resulting inconvenience caused by the narrow lane.
Following this, the matter was brought before the District Legal Services Authority, Guntur. In PLC.No.326 of 2023, the Authority examined the grievance but concluded proceedings on 10.07.2023 due to the absence of mutual agreement among the parties.
Supporting the petition, photographic evidence was filed to show that the road was only wide enough to allow the passage of an auto-rickshaw. The petitioner argued that these conditions severely impeded accessibility and warranted immediate municipal action.
In response, the second respondent—Guntur Municipal Corporation—submitted a counter affidavit confirming that PLC.No.326 of 2023 had been filed by the petitioner and 31 other residents. It was clarified that the road in question was not part of the approved master plan as per G.O.Ms.No.688, MA & UD Department, dated 30.12.2006. It was also stated that no unanimous agreement could be reached among all 20 property owners involved.
The Corporation further explained that 10 out of 14 residents on both sides of the road had submitted acceptance letters on 03.05.2023, agreeing to a survey and demarcation for upgrading the road into a cement concrete (CC) road. These residents also consented to the removal of encroachments and the construction of drainage infrastructure along both sides of a 12-foot-wide road.
A subsequent municipal survey identified several encroachments, and an encroachment sketch was prepared. However, resistance to the road widening continued from Respondents Nos.3 to 8, identified as owners of structures numbered 5, 9, 11, 12, and 13. These residents refused to cooperate with the Corporation’s plans for developing the road and constructing drains.
It was further disclosed in the Corporation’s affidavit that the contested lane is a private joint path shared by the local property owners. A survey record and a statement on property tax details were provided to substantiate this claim.
In a separate counter affidavit, Respondents Nos.3 to 8 disputed the characterization of the street as a public road and maintained that they were not encroachers. They argued that their occupation was protected by their registered sale deeds and that, in the absence of a civil court decree, the Corporation had no authority to declare them encroachers.
Both parties were heard in detail, with representations made by the petitioner’s counsel, Sri Bhaskar Prem Koushik; the Corporation’s counsel, Sri A.S.C. Bose; and counsel for the unofficial respondents, Sri K.H.V. Siva Kumar.
Justice Nyapathy Vijay considered the legal framework under Section 392 of the Act, which governs the formation and regulation of private streets within municipal limits. The Court recorded:
“Section 392(1) of the Act restrains formation of any private street without permission of the Commissioner. In the event, the private street is laid with prior permission in that event, the Commissioner has power under Section 392(2) to issue show cause and alter the street to his satisfaction at the expense of residents of the street.”
The text of Section 392 was extracted in full for clarity and was followed by judicial reasoning regarding its applicability. The Court stated:
“The Section 392 ensures that streets formed align with the connecting roads in the city and ensures organised city development. The wording ‘to the satisfaction of Commissioner’ in Section 392(2) reflects the wide amplitude of power of the Commissioner to make alterations in the street in question.”
Referring to the power of the Municipal Commissioner under the statute, the Court stated: “The consent of private street owner is of no relevance for exercise of power under this Section.”
In addressing the objection raised by Respondents Nos.3 to 8, the Court concluded that the issue of private ownership did not preclude enforcement under Section 392, provided statutory procedures were followed.
The Court directed the Commissioner of Guntur Municipal Corporation to call for a report regarding the width of the street in question within two weeks from the date of receipt of the web copy of the order.
Following the receipt of the report, the Commissioner was instructed to issue a show cause notice to Respondent Nos.8 to 13, who were opposing the works on the ground that the street was private, within two weeks.
After considering the explanation submitted by Respondent Nos.8 to 13, the Commissioner was required to pass appropriate orders within a further period of four weeks and proceed accordingly.
The writ petition was disposed of with no order as to costs, and all pending applications were declared closed.
Advocates Representing the Parties
For the Petitioner: Bhaskar Prem Koushik
For the Respondents: K.H.V. Siva Kumar, A.S.C. Bose (Standing Counsel for Municipal Corporations A.P.), Government Pleader for Municipal Administration and Urban Development A.P.
Case Title: Seelam Atma Rao v. The State of Andhra Pradesh and Others
Neutral Citation: APHC010050012024
Case Number: Writ Petition No. 2946 of 2024
Bench: Justice Nyapathy Vijay
[Read/Download order]
