1999 Supreme(AP) 1057
Andhra Pradesh High Court
Judges : V.V.S.RAO
I.Venkat Rao - Appellant
Versus
Municipal Corporation of Warangal - Respondent
Decided On : 11-17-99
Headnote:Andhra Pradesh Municipal Corporations Act, 1994 - Constructions made in contravention of Building plan - Aggrieved neighbour can file a civil suit but cannot approach High Court under Article 226 for a public law remedy
Held : a neighbour who is aggrieved by the construction allegedly in contravention of the building plan has no locus standi to question the same in a public law remedy If the neighbour is aggrieved with reference to the depriation of corporeal rights as well as incorporeal rights - deprivation of property, violation of right to privacy etc , the only remedy is by way of a civil suit for declaration of easementary rights and consequential injunction
the Court under article 226 is acceded, cannot be extended where a private person is aggrieved by the actions of another private person that too when no proper material is placed before the Court that the construction made is grossly subverting the public interestTherefore, the contention of the petitioner that he can approach this Court under Article 226 of the Constitution is devoid of any merits
( 1 ) THE petitioner is a resident of Warangal town. He is aggrieved by the proceedings of the first respondent in roc. No. G2/uc/13358/96, dated 4-5-1998. Apart from not being able to satisfactorily explain the delay in approaching the Court assailing the order passed about one year ago, the petitioner has chosen a wrong remedy in a wrong forum. The petitioner should be non-suited as the writ petition is a frivolous and vexatious one. These introductory remarks are not without any justification. As the case unfolds as here under, these remarks would be justified.
( 2 ) THE second respondent is unfortunately the neighbour of the petitioner. He obtained a building permission under municipal Corporation Act on 26-5-1993. According to the petitioner, the permit is for raising ground floor residential structure. However, it is alleged that the second respondent in utter violation of the plan as well as the zoning regulations extended the construction towards north where allegedly the petitioner s property is situated. The construction was completed and according to the petitioner the officials of the first respondent are in collusion with the second respondent and hence they did not take any coercive steps to stop the construction made by the second respondent. This, according to the petitioner, has caused loss in more ways than one, especially by loss of his property. Therefore, as a vigilant citizen he invoked the jurisdiction of the Special tribunal constituted under the Andhra pradesh Land Grabbing (Prohibition) Act by filing LGC No. 11 of 1993 on the file of the Court of the District Judge, warangal, which is pending. The petitioner also approached the civil Court by filing a suit being OS No. 651 of 1993 on the file of the Court of the II Additional junior Civil Judge, Warangal seeking the relief of mandatory injunction and other reliefs which the petitioner has intentionally withheld from this Court. Be that as it may, the petitioner also approached this Court by filing a writ petition under Article 226 of the Constitution of India being Writ Petition no. 7546 of 1995. The writ petition was admitted and in the miscellaneous application being WPMP No. 932. 2 of 1995, this Court passed the following order on 18-4-1995:"interim direction to the first respondent to take appropriate action against the second respondent in case he has made any construction in contravention of any statutory provisions or permissions accorded to him. "
( 3 ) ACCORDING to the petitioner, inspite of the directions issued by this Court read above, the Municipal authorities did not take any action and allowed the second respondent to complete the construction of first floor. Therefore, he invoked the contempt jurisdiction of this Court. After filing of Contempt Case No. 396 of 1995, the first respondent issued a notice to the second respondent. Challenging the said notice which purports to be under section 636 of the Hyderabad Muncipal corporation Act, 1965 ( the Act for brevity) (which is made applicable by way of incorporation under the Andhra Pradesh muncipal Corporations Act, 1993), the second respondent approached the civil Court by filing OS No. 513 of 1995 seeking permanent injunction against the Municipal corporation. After filing the suit, the second respondent also filed an application mw MP No. 2798 of 1995 to vacate the interim orders dated 18-4-1995. This Court, by order dated 13-12-1995 modified the order dated 18-4-1995 directing that after the injunction order obtained by the second respondent against the first respondent is vacated, the Municipal Corporation has to take action in accordance with the orders of this Court dated 18-4-1995 extracted above.
( 4 ) ACCORDING to the petitioner, the second respondent withdrew the suit on 31-7-1998. In the meanwhile, the second respondent by an application dated 2-5-1998 approached the first respondent seeking the benefit of two Government Orders in g. O. Ms. No. 44, dated 4-2-19