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2020 Supreme(Telangana) 818
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
CHALLA KODANDA RAM, J.
Khaja Nayeemuddin – Appellant
Versus
State of Telangana and Others – Respondents
Writ Petition No. 10128 of 2020
Decided On : 11-08-2020
Advocate Appeared:
For the Appellant : Zulfaquar Alam.
For the Respondents: G. Chanakya, N. Praveen Kumar.
The responsibility of municipal authorities under the Telangana Municipalities Act for removal of encroachments is restricted to 'Public Streets,' leaving private street grievances to be addressed in civil courts.
Headnote:
Easement Rights - Illegal Construction - Telangana Municipalities Act, 2019, Sections 137-143, 185, 294-295 - The court considered the petitioner's complaint of illegal construction obstructing a common passage and the municipal authorities' duty under the Telangana Municipalities Act. It highlighted the definitions of 'Public Street' and 'Private Street' and the restrictions on the authorities' responsibility for removal of encroachments.
Fact of the Case:
The petitioner complained about illegal construction obstructing a common passage and sought a writ of mandamus against the municipal authorities for inaction.
Finding of the Court:
The court analyzed the definitions of 'Public Street' and 'Private Street' under the Telangana Municipalities Act and concluded that the responsibility of the authorities for removal of encroachments is restricted to 'Public Streets,' leaving private street grievances to be addressed in civil courts.
Issues: Whether the municipal authorities had a duty to address the petitioner's complaint and whether the writ of mandamus was the appropriate remedy.
Ratio Decidendi: The court held that the responsibility of the authorities under the Telangana Municipalities Act for removal of encroachments is limited to 'Public Streets,' and private street grievances should be addressed in civil courts.
Final Decision: The writ petition was closed with no further orders needed.
ORDER :
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.
4. 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 th
