Disposed

Khaja Nayeemuddin v. State of Telangana

Telangana HC11 Aug 2020WP/10128/2020

Case brief

AI extract

What is this about?

The High Court of Telangana petition challenged municipal inaction regarding wall construction blocking a passage. The Court held that the petitioner must demonstrate the passage is a 'public street' under the Telangana Municipalities Act, 2019. Without such proof, the remedy lies in civil courts regarding private streets. The petition was closed.

What did the court decide?

The writ petition is closed without costs as the passage is private and the remedy lies in civil court.

Khaja Nayeemuddin Vs State of Telangana — Property and Title | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA (Special Original Jurisdiction)

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TUESDAY THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND TWENTY

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PRESENT

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THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT PETITION NO: 10128 OF 2020

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Between:

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Khaja Nayeemuddin, S/o. Late Gulam Zainulabuddin, Occ: Business, R/o H.No. 1-336/H, Rajendranagar, lr/ehbubnagar.

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...PETITIONER

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AND

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'1 . State of Telangana, rep. by its Principal Secretary, tr4unicipal Administration and Urban Development Department, Secretariat Buildings, at Hyderabad.

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1. District Collector, Mahbubnagar District Opposite new Bus stand, Nlahbubnagar. 3. I,4ahbubnagar ltr'lunicipa lity, Near clock tower, tt4ahbubnagar rep. by its Comm issioner.

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Assistant City PIanner, l\rlahbubnagar tVunicipality,

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K. Subhanji, S/o K. Ramji, Age about 38 years, Occ: Business, R/o. H. No. 1-37211 , Rajendranaga r, [t/ahbubnagar.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Coud may be pleased to issue an appropriate writ, order or direction particularly one in the nature of writ of I,4andamus declaring the action of the respondent nos. 2lo 4 tn not taking action against the lllegal and unauthorized construction of wall on northern srde l.e.^public passage and blocking another passage on the eastern side by respondent no. 5, of his property bearing No.^'l-3-36/C, in plot no. 1 , situated at Rajendranagar, lVahboobnagar, as illegal besides being in violation of the provisions of the It4unicipalities Act consequently pass direction to demolish wall and any other obstruction raised by respondent No.5, on the^{public passages} and restore the public passages for public use.

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Counsel for the Petitioner: SRI ZULFAQUAR ALAM

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Counsel for the Respondent No.1: GP FOR MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT

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Counsel for the Respondent No.2: GP FOR REVENUE

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Counsel for the Respondent No.3 & 4: SRI G. CHANAKYA, ADVOCATE REPRESENTING SRI N. PRAVEEN KUMAR, S.C. FOR MUNICIPALITIES

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Counsel for the Respondent No.5: --

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The Court made the following: ORDER

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THE HO N' BLE S R I ]USTI E CHALLA KODANDA RAM

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WRIT PETITION No.1O128 of 2O2O

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ORDERI

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Heard Iearned 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 stag e.

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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^generalsince more than 45 years; that after^{purchase of the property,respondent} No.5 is raising a wall and^pillar on the^{Easternside 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^{constructionby respondent} No.5 by obstructing common^{passage,the petitioner made a} complaint on 26.O5.2020,01.06.2020^{and 10.06.2020tothe} respondent Municipal Commissioner^{wlth regard to the illegal} construction of walls and^pillars on^{publicpassageby respondent} No.5; that similar representations^{weregiven to the DistrictCollector}

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on 26.O5.2020 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.1-3-95/8, made a complaint to the lYunicipal authorities about the illegal construction being made by respondent No.5; th at based on the complaints made/ respondent No.4 visited the site and having taken note of the encroachment by respondent No.5, assu red 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 [v]ahabubnagar which is the^{jurlsdictional} 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.

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In those circumstances, the petitioner prays for a writ of mandamus complaining inaction on the part of the responde nt authorities against the illegal and unauthorised construction being made by respondent No.5 by blocking the public passage.

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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

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questions of fact which are required to be established after investigation and after taking evidence into consideration in a properly framed sult; 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, preventlng 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 Municlpalities 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 Sarpanchl, the writ^petition is not a^proper remedy and the writ petition is not maintainable.

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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

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construction/ and the said^passage ls a^{"commonpassage"} which^is being used by the petitioner and others, thereby obstructing the movement of the petitioner and others.

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1n view of large number of cases of this nature being filed before this Court, more particularly, complaininq 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, thls Court has deemed it a ppropriate to consider:

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(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;

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(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.

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(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.

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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 Mu n icipa lities Act.

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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 u nder:

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Public Sfreet 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 -

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

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

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(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.

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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.

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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^pu blic streets.

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Under Section 294 of the Act, public streets and appurtenances in the Municipality shall vest with the Municipality. With a power to

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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.

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While Section 185 of the lvlunicipalities 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.

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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 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.

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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, 20L9, with respect to removal of encroachments/obstructions is restricted to^.'publlc

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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 u nder Easements Act or Specific Reliefs Act.

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In the present case on hand, this Court at the stage of admission on 70.07 .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.

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Accordingly, the writ petition is closed. No costs. Miscellaneous petitions, if any pending, shall stand closed

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SD/. K.AMMAJI ASSISTANT REGISTRAR

,TRUE COPY//

SECTION OFFICER

One fair copy to the HON'BLE SRI JUSTICE CHALLA KONDANDA RAM (For His Lordship's Kind Perusal)

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