IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) , THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 498 of 2001 Between: 1 U.Mallaiah S/o. Pitchaiah R/o. Miryalguda, Nalgonda District. 2 U.Venkanna S/o. Mallaiah R/o. Miryalguda, Nalgonda District. ..... PETITIONERS AND 1 Municipal Commissioner Miryalguda Municipality Miryalaguda, Nalgonda District. 2 Mandal Revenue Officer Miryalaguda, Nalgonda District. 3 Tedla Pandurangam S/o. T. Mattaiah Old Main Bazar, Miryalaguda,Nalgonda District. .....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 appropriate Writ, order or direction particularly directing the Respondents, especially the first Respondent herein to accord permission for the construction of the compound wall in respect of the petitioners' land of an extent of Ac.1- 00 in Survey No.797 situate at Miryalguda, Nalgonda Dist. In terms of the application made by the petitioners dt: 16/3/2000 and to further quash the order passed by the Respondent No.1 in Lr.RoC.No.G/936/MM/2000 dt: 28/8/2000. Counsel for the Petitioner: MR.Y.NEELA LOHITHA SASTRY Counsel for the Respondent No.: MR.V.VISWANATHAM The Court made the following : THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION No : 498 of 2001 O R D E R : The petitioners herein are claiming title and possession in respect of Ac.1.00 non-agricultural land situated in Sy.No.797 of Miriyalguda. They stated that pursuant to the order passed by this Court in W.P.No.10848 of 1998 dated 21-04-1998, the Regional Deputy Director, Survey and Land Settlements, Hyderabad made spot inspection of the land in question on 03-07-1998 and demarcated Ac.1.00 of land claimed by the petitioners and proceedings dated 09-01-1993 were issued to the said effect enclosing a sketch. Thereafter, the petitioners made an application requesting the first respondent-Commissioner, Miriyalguda Municipality seeking permission for construction of a compound wall around the land in question. Pursuant thereto the first respondent, by letter dated 28-07-2000, requested the Mandal Revenue Officer, Miriyalguda to furnish the particulars of all the pattadars in respect of the land in Sy.No.797 along with the map and a copy of the said letter was marked to the first petitioner for information. Since the petitioners have already submitted all the relevant documents along with their application, they got issued a legal notice dated 07-08-2000 calling upon the respondents 1 and 2 to accord sanction as sought by the petitioners. However, the first respondent by proceedings dated 28-08-2000 rejected the application of the petitioners on the ground that permission was already granted to the 3rd respondent on 09-04-2006 for construction of a compound wall in respect of the very same land. Aggrieved by the said order of rejection, the present writ petition has been filed contending inter alia that the third respondent’s land admeasuring Ac.1.50 guntas is situated in Sy.No.796 as revealed from the encumbrance certificate obtained by the petitioners from the office of the Sub-registrar, Miriyalguda and therefore, the impugned order of rejection is arbitrary and illegal. The learned counsel for the petitioners vehemently contended that the action of the first respondent in refusing to grant permission for construction of compound wall is arbitrary and illegal in the absence of any dispute as to the title claimed by the petitioners in respect of the land in question. On the other hand, learned counsel appearing for the first respondent-Municipality as well as the learned counsel for the third respondent raised a preliminary objection as to the maintainability of the writ petition on the ground that as against the impugned order, an alternative remedy of appeal is available under Section 345 of the Andhra Pradesh Municipalities Act, 1965 (for short ‘the Act’). In the counter affidavit filed on behalf of the first respondent- Municipality, it is explained that pursuant to the application received from the petitioners, the matter was verified and it was found that permission in respect of the very same land was earlier issued in the name of one P.Satyanarayana on 06-05-1985. The said fact was informed to the petitioners by letter dated 12-05-2000 enclosing a copy of the permission granted to P.Satyanarayana. However, the first petitioner made another application on 03-07-2000 asserting his title and stating that the land in respect of which the permission was granted to P.Satyanarayana in the year 1995 was located to the South of Bapujinagar, whereas, the land owned by him is situated on the North side. Basing on the said application, the office of the first respondent once again inspected the site after issuing notices to the pattadars and possessors of Sy.No.797 as well as the Mandal Revenue Officer, Miriyalguda. Meanwhile, the third respondent herein made a representation requesting not to grant permission to the writ petitioners stating that he was in possession and enjoyment of the land in question and that he was also granted permission by the Municipality in the year 1986 for construction of compound wall vide proceedings dated 09-04-1986. It was claimed by the third respondent that the land in question was purchased by him along with his brother-in-law by name K.Krishna Murthy, from late Sri Gunda Venkaiah in the year 1969. A legal notice was also issued on behalf of Sri K.Krishna Murthy, which revealed that O.S.Nos 150 of 1976 and 4 of 1997 on the file of the Court of the Senior Civil Judge, Miriyalguda were pending between the rival claimants with regard to the title in respect of the land in question. Thus, the first respondent pleaded that the issue with regard to title in respect of the land in question is pending before the civil Court. The third respondent in his counter affidavit specifically denied the title claimed by the petitioners stating that the land in question was sold by them to third parties and that as on today, the petitioners possessed no land in Sy.No.797. On the other hand, the third respondent has been in possession of the land in question which is evident from the Advocate Commissioner’s report filed in O.S.No.35 of 1996 on the file of the Court of the Senior Civil Judge, Miriyalguda. It was also explained that at the time of registration of the title deed in his favour in the year 1969, there was an error in mentioning the survey number and it was wrongly shown as Sy.No.796. However, subsequently, the error was rectified by an amendment deed dated 16-07-1985 with registration No.2584 and in the no-encumbrance certificate obtained from the SRO, Miriyalguda on 03-12-1985 survey number was clearly shown as 797. In the light of the pleadings noticed above, it is apparent that there is a dispute with regard to title and possession in respect of the land in question and civil suits are also pending between the rival claimants. It is also clear that permission for construction was already granted in favour of the third respondent in respect of the very same land. Moreover since an alternative remedy of appeal is available under the Act, the petitioner cannot be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. However, the learned counsel for the petitioners while placing reliance upon a decision of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad[1] vehemently contended that the impugned order of rejection was passed by the first respondent without taking into consideration the relevant material and that apart since the first respondent failed to discharge his statutory duty in accordance with law, the entire decision making process is vitiated and therefore, it is a fit case for interference by this Court in exercise of writ jurisdiction notwithstanding the availability of the alternative remedy. Section 209 of the Act requires that if any person intends to construct or reconstruct a building other than a hut, he shall send an application in writing for approval of the site together with site plan of the land and an application in writing for permission to execute the work together with the documents specified thereunder. Admittedly, the petitioners application was made under Section 209 of the Act seeking permission for construction. As per Section 212 of the Act, within sixty days after the receipt of the application made under Section 209 of the Act, the Commissioner shall, by an order in writing either approve the site or refuse on one or more of the grounds mentioned in Section 215 of the Act. The impugned order apparently was passed in exercise of the powers conferred under Section 212 of the Act rejecting the permission sought by the petitioners. Hence, if aggrieved, the petitioners ought to have availed the alternative remedy of appeal as available under the Act and it is not open to them to invoke the writ jurisdiction of this Court straightaway. Moreover, as noticed above, the matter involves various disputed questions of fact with regard to title as well as the possession and admittedly, the civil suits between the parties are still pending. Viewed from any angle the writ petition is misconceived and the relief as prayed for cannot be granted. Accordingly, the writ petition is dismissed. However, this shall not preclude the petitioners to work out the alternative remedy of appeal if they so choose. No costs. ______________ G. ROHINI, J Dated: 05-03-2009 KLP [1] 2001(3) ALD 600