KHAJA NAYEEMUDDIN Vs. STATE OF TELANGANA AND ORS.

JUDGEMENT

(1.) Heard learned counsel for the petitioner; and Sri G. Chanakya, advocate representing Sri N. Praveen Kumar, learned Standing Counsel for respondent Municipality. As no adverse order is being passed against respondent No.5 in view of the nature of disposal being made, it is not necessary to issue notice to respondent No.5 at this stage.

(2.) Brief facts of the case as narrated in the writ affidavit are that the petitioner is resident of H.No.1-3-36/H, Rajendra Nagar, Mahabubnagar. Respondent No.5 through a sale deed vide Document No.6434/2020 dated 15.03.2020 purchased the property bearing No.1-3-36/C admeasuring 188.78 square yards situated at Rajendranagar, Mahabubnagar; that the property of respondent No.5 is a neighbouring property of the petitioner and there is a passage of approximately 5/200 feet on the Eastern side and 6/150 feet on the Northern side of respondent No.5; that these two common passages were in use by the people of the locality and public in general since more than 45 years; that after purchase of the property, respondent No.5 is raising a wall and pillar on the Eastern side of the property i.e., in common passage, and also blocked the Northern side passage by placing a cement sheet thus, in effect, he closed the access to the public in general; that noticing the illegal construction by respondent No.5 by obstructing common passage, the petitioner made a complaint on 26.05.2020, 01.06.2020 and 10.06.2020 to the respondent Municipal Commissioner with regard to the illegal construction of walls and pillars on public passage by respondent No.5; that similar representations were given to the District Collector on 26.05.2020 and 29.05.2020, and also to the Director, Municipal Administration at A.C. Guards, Hyderabad; that respondent No.5 had planted some trees after blocking the passage; that in the very sale deed through which the respondent No.5 had purchased the property along with the plan (sketch) to the sale deed disclose the Northern side and Eastern side of H.No.1-3-36/C being a common passage; that not only the petitioner but also one B. Tukaram, who is a resident of H.No.1-3-95/B, made a complaint to the Municipal authorities about the illegal construction being made by respondent No.5; that based on the complaints made, respondent No.4 visited the site and having taken note of the encroachment by respondent No.5, assured the locality people that he would get the illegally constructed walls removed and restore the public passage; that no action has been taken till date on account of the uncle of respondent No.5 who is a Head Constable in the 2-Town Police Station at Mahabubnagar which is the jurisdictional police station, taking advantage of his post, pressurising the petitioner to withdraw the complaint as otherwise the petitioner would be implicated in false cases; that the petitioner had also given a complaint to Additional Director General of Police, Law and Order, Telangana, on 16.03.2020.

(3.) In those circumstances, the petitioner prays for a writ of mandamus complaining inaction on the part of the respondent authorities against the illegal and unauthorised construction being made by respondent No.5 by blocking the public passage. On the other hand, learned Standing Counsel submits that whether there is a common passage and, if so, whether it is being used by public at large; and whether such passage is forming part of public road vesting with the Municipal authorities (local body) are all questions of fact which are required to be established after investigation and after taking evidence into consideration in a properly framed suit; that the petitioner's assertion that his right of way/right to passage is being obstructed is in essence a claim of violation of Easement rights which relief squarely falls within the four corners of the Easements Act, and therefore, making of complaint about inaction and seeking a mandamus against the municipal authorities to restore the alleged public passage is not a proper remedy, as the issues of this nature are best settled in the Civil Court in an appropriately framed Civil suit; that the municipal authorities are burdened with various functions under the Municipalities Act, rather than sorting out individual problems of neighbours' encroachments into particular individuals property and making illegal constructions, preventing a passage by a person which is essentially a private street, and not a public street which is vested in the Municipality; that under the provisions of the Telangana Municipalities Act, 2019, the functions to be discharged by the Municipality are of essential and pressing nature, catering to the public amenities at large rather than sorting out individual grievances / disputes between the two parties; that as per the judgment of the A.P. High Court (before bifurcation of the State) reported in Kulli Srinivasa Rao v. The Vaodama Gram Panchayat, represented by its Sarpanch 2008 (4) ALT 187, the writ petition is not a proper remedy and the writ petition is not maintainable.