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Khaja Nayeemuddin v/s State of Telangana, Rep. by its Principal Secretary, Municipal Administration & Urban Development & Others

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    Writ Petition No. 10128 of 2020

    Decided On, 11 August 2020

    At, High Court of for the State of Telangana


    For the Petitioner: Zulfaquar Alam, Advocate. For the Respondents: R2 to R4, G. Chanakya, Advocate, N. Praveen Kumar, Learned Standing Counsel.

Judgment Text

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.

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.

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.

Having regard to respective submissions, in the present case on hand, the sum and substance of the complaint of the petitioner is that respondent No.5 has blocked the passage of about 5/200 feet on the Northern and Eastern side of his site and is making illegal construction, and the said passage is a “common passage” which is being used by the petitioner and others, thereby obstructing the movement of the petitioner and others.

In view of large number of cases of this nature being filed before this Court, more particularly, complaining about encroachment of passage/pathway, the access road, encroachment of individuals property by third parties and making illegal constructions, obstructions being caused for ingress and egress by neighbours by making unauthorised constructions, and the complaints not being acted upon by the municipal authorities, this Court has deemed it appropriate to consider:

(i) Whether there is a right in the individual citizen to demand the grievance of the nature to be redressed by the public authorities; more particularly, the revenue / municipal authorities / corporation authorities;

(ii) Whether there is any statutory duty cast on the authorities under the local laws/municipal laws to attend to such grievance and redress the problems of this nature, or whether the petitioners be directed to avail remedies in Civil laws.

(iii) Whether a writ of mandamus be issued in every case by the High Court to redress the problems of this nature or whether the petitioners are required to be relegated to the Civil Court for seeking appropriate remedies.

At the outset, it may be noted that though the petitioner asserts that the passage is being used by public at large, there is no assertion in the writ affidavit that the passage would fall within the definition of “Public Street” as defined under Sub-Section 70 of Section 2 of the Municipalities Act.

The Telangana Municipalities Act, 2019, defines “Public Street” under Sub-Section 70 of Section 2 of the Act, and also defines “Private Street” in Sub-Section 68 of Section 2 of the Act, which are defined as under:

Public Street means any street, road, square, court, alley, passage or riding path over which the public have a right of way whether a thoroughfare or not, and includes –

(i) the roadway over any public bridge or causeway;

(ii) the footway attached to any such street, public bridge or causeway;

(iii) the drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, veranda, or other structure which lies on either side of the roadway upto the boundaries of the adjacent property whether that property is private property or property belonging to the Government.

Private Street means any street, road, square, court, alley, passage, or riding path, which is not a public street but does not include a pathway made by the owner of premises on his own land to secure access to, or the convenient use of, such premises.

Sections 137 to 143 of the Telangana Municipalities Act deal with public streets. While Sections 137 and 139 enumerate the prohibited activities, Section 138, 141, 142 and 143 delineate the functions to be discharged by the Municipal Commissioner in relation to the public streets.

Under Section 294 of the Act, public streets and appurtenances in the Municipality shall vest with the Municipality. With a power to withdraw such of the streets etc., from the control of the Municipality and place the same under the control in other department of Government by special notification. The withdrawn public streets shall be governed by the provisions of Section 295 of the Act.

While Section 185 of the Municipalities Act dealing with “Removal of Encroachments on Streets”, couched in general terms, though does not use the words ‘public streets’, the same has to be necessarily understood in the context of public streets vesting in the Municipality, and the scope of Section 185 by necessary implication gets restricted to public streets as defined under Sub-Section 70 of Section 2, and excludes private streets defined under Sub-Section 68 of Section 2 of the Act.

In the present case on hand, though the contention of the petitioner is that the 5th respondent has encroached upon and occupied the passage of 5/200 size as stated supra, neither there is an averment in the writ petition that the said passage is a “Public Street” as defined under the Act, nor there is any material placed before this Court to the effect that the said passage is a “Public Street” mandating the municipal authorities to take action in terms of Section 185 of the Act. The only

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piece of material placed by the petitioner before this Court is the Sale Deed through which respondent No.5 came to acquire the property and the plan (sketch) attached to the Sale Deed. A conjoint reading of various provisions in the Telangana Municipalities Act, 2019, makes it clear that the responsibility of the authorities under the Telangana Municipalities Act, 2019, with respect to removal of encroachments/obstructions is restricted to “Public Streets”, thus essentially leaving it open for the respective parties/individuals to agitate their grievance with respect to “Private Streets” as a Civil dispute before the appropriate Civil Court either under Easements Act or Specific Reliefs Act. In the present case on hand, this Court at the stage of admission on 10.07.2020 directed the respondent authorities to take necessary action in accordance with law. In those circumstances, no further orders are needed in the present writ petition. Accordingly, the writ petition is closed. No costs. Miscellaneous petitions, if any pending, shall stand closed.