IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17682 of 2005 Between: Rishi Educational Society a Society regd. Under the Societie Registration Act, with Regn. No. 2080/98 at Rishi Campus, Kukatpally, Hyderabad rep by M. Veera Raghavaiah R/o Hyderabad ..... PETITIONER AND 1 A.P. Housing Board, rep by Vice Chairman & Managing Director, Hyderabad 2 A.P. Housing Board, rep by EXecutive Engineer, Kukatpally Hyderabad 3 Kukatpalli Municipality, rep by Commissioner, Kukatpalli 4 Mandal Revenue Officer, Balanagar Mandal, Ranga Reddy District 5 M/s. Madhucon Bina Puri J.V. Madhucon House, Plot No. 1129/A, Road No.36, Hi-Tech City Road, Mr.K.P.R. Murthy duly empowered under the board resolution dated 17th October, 2005. 6 Madhucon Projects Limited, a Public Lmited Company incorporated under the Companies Act, 1956 having its Jubilee Hills, Hyderabad -500 033, Rep. byits Director Finance, Mr. S. Vaikuntanathan. (RR 5 & 6 impleaded as per Court order dated 03/03/2008 in WPMPs 30854/2005 & 30855/2005 respectively) 7 Bhagya Nagar Phae III Residents, Welfare Association, Rep. byits General Secretary D. Bhimaraju, R/o. Flat No. 42, Meridian Enclave, Kukatpally, Hyderabad. (R7 impleaded as per Court Order dt. 15-9-2008 in WPMP 19923/2008) .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue any appropriate Writ, order or direction preferably a writ in the nature of writ of Mandamus, declaring the action of the 1st and 2nd respondents in not implementing its approval in the year 2002 to the petitioner to use the road in Sy. No. 178 and 179 of Kukatpalli, Ranga Reddy District, with width of 40 ft and length of 200 ft (Approximately) for its ingress and egress as being illegal, arbitrary, violative of principles of natural justice and also violative of Article 14 of the constitution of India and consequently direct the respondents 1 and 2 to forthwith implement the said approval given by the respondents 1 and 2 in the year 2002 to the petitioner and pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the facts and circumstances of the case. Counsel for the Petitioner: SRI P.VENUGOPAL Counsel for the Respondents: GP FOR REVENUE The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17682 of 2005 ORDER: Rishi Educational Society ﬁled the instant Writ Petition seeking a writ of mandamus to implement the decision of respondent Nos.1 and 2 permitting them to use the 40 feet width to a length of 200 feet road in survey Nos.178 and 179 situated at Kukatpally, Ranga Reddy District, duly approving the said decision. During the pendency of the writ petition, M/s.Bhagyanagar Phase III Residents Welfare Association got impleaded as respondent No.7 supporting the writ petition. Respondent Nos.5 and 6, who are entrusted with the work of developing a commercial premises in the area came on record subsequently. The petitioner is running four colleges besides a public school. All these institutions are located on a piece of land admeasuring Acs.5.00 in survey No.121 of Hydernagar Village of Balanagar Mandal adjacent to the land comprised in survey Nos.178 and 179 belonging to Andhra Pradesh Housing Board (APHB). The petitioner alleges that the Educational Institutions of the petitioner and MNR Educational Trust are using the 40 feet width approach road in survey Nos.178 and 179 of the main road as ingress and egress to go to their Institutions. Sometime in 2002 the petitioner approached APHB (respondent Nos.1 and 2) seeking permission for use of passage. It appears, Vice Chairman and Managing Director passed an order on the note ﬁle on 25.09.2002 requesting the Executive Engineer to complete the marking on the ground leaving the road/passage to Rishi UBR Women’s College run by the petitioner. The petitioner alleges that in spite of the orders of the Vice Chairman, the same has not been implemented and steps were taken to construct a compound wall enclosing passageway in such a manner depriving petitioner’s Educational Institutions of the pathway. This Court while admitting the writ petition on 10.08.2005 passed interim orders in W.P.M.P.No.22511 of 2005 directing respondent Nos.1 and 2 to permit the petitioner to use the road in survey Nos.178 and 179 for ingress and egress. This Court also directed the petitioner to approach the authorities with fresh representation to purchase the land, as ﬁxed by the Housing Board. Respondent Nos.1 and 2 ﬁled W.V.M.P.No.3012 of 2005 and respondent No.6 ﬁled W.V.M.P.No.2429 of 2007 seeking a direction to vacate the interim order. As the arguments to be advanced in interlocutory applications as well as the main writ petition are the same, the writ petition is heard finally and is being disposed of by this order. Learned Counsel for the petitioner and respondent No.7 submit that there has been a road existing in survey Nos.178 and 179 leading from main road to the Educational Institutions run by the petitioner and to the residential colonies of the members of respondent No.7. When there is an existing road, the same cannot be closed by respondent Nos.1 and 2 or respondent Nos.5 and 6. Learned Counsel for the petitioner also submits that on a representation made by the petitioner, the Vice Chairman agreed to provide such passageway permanently in the layout, and therefore, APHB is bound to implement the same. Lastly, he submits that the petitioner is willing to pay the market value for the land on which the road is formed. Learned Standing Counsel for Housing Board and learned Counsel for respondent Nos.5 and 6 submit that there is no such road in survey Nos.178 and 179 and any use of the land by the petitioner or members of respondent No.7 without authority does not amount to providing a passage by APHB. Secondly, they submit that it was not competent for the Vice Chairman to have passed such an order, and in the absence of any such order being produced before the Court no credence can be given to the petition averments. They also submit that as the petitioner claims easement for ingress and egress the remedy is to approach the civil Court and a writ petition would not lie. The prima facie inferences that can be drawn from the aﬃdavit evidence on record as well as documents ﬁled by the parties are as follows. The petitioner or respondent No.7 have not placed any clinching evidence to show that there was such 40 feet width passageway from main road to Rishi Education Institutions for more than 20 years or that they have a right to claim such passage by way of easement of necessity. Though learned Counsel for respondent No.7 has brought to the notice of this Court the revised master plan dated 03.04.2008, and though the same indicates that a road is provided, it is not possible to correlate the road to the existing land, which is being unauthorizedly used by the petitioner and other residents as a road. Even otherwise, the indication of a land as a road in a master plan does not by itself confer any right on the land users, especially, when they have no ownership right or right to use the land of a third party. Secondly, on a prima facie consideration of the material, there is force in the submission of the learned Counsel for APHB that Kukatpally Phase III APHB Colony as well as Educational Institutions run by the petitioner have a different approach road and passageway, and therefore, they cannot claim the passage as an easement of necessity. It is well settled that if the land user is not precluded from using and enjoying the land through an existing passageway, such person cannot claim or enforce easement of necessity merely because the existing approach road is roundabout or cumbersome. This Court hastens to add that all these matters, however, cannot be gone into in a writ petition because these matters require oral and documentary evidence. In Akkula Mangayyamma v Mandal Development Oﬃcer, Samalkot Mandal, East Godavari District [1] and Meher Fatima v District Collector, Ranga Reddy District[2], this Court laid down that when a writ petition is ﬁled claiming easement right of passage through Government land or other land, same cannot be decided in a writ petition. Such a dispute has to be resolved in a civil Court. Therefore, the writ petition is misconceived. However, liberty is given to the petitioner and respondent No.7 to seek redressal in a civil Court by instituting a suit. Learned Counsel for the petitioner requests this Court to restrain respondent Nos.1 and 2 and respondent Nos.5 and 6 for a period of two weeks to enable the petitioner to approach the civil Court and obtain appropriate orders. After giving anxious consideration, this Court is, however, not able to grant such relief. It is well settled that when the writ petition is not accepted on the ground of maintainability, this Court cannot grant any interim directions. In the result, the Writ Petition is dismissed without any order as to costs. ____________ (V.V.S.RAO, J) 14.10.2008 vs To 1 The Vice Chairman & Managing Director, A.P. Housing Board, Hyderabad 2 The Executive Engineer, A.P. Housing Board, Kukatpally Hyderabad 3 The Commissioner, Kukatpalli Municipality, Kukatpalli. 4 Mandal Revenue Officer, Balanagar Mandal, Ranga Reddy District 5 2CCs to G.P for Revenue, High Court of A.P., Hyderabad. 6 2CD copies Form-NIC-OGS/WP{TRT} [1] 2003 (5) ALD 418 [2] 2006 (2) ALD 440