THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.8045 OF 2006 Dated: 08.09.2009 Between: M/s. Agarwal Industries Limited, Industrial Area, Azamabad, Hyderabad. … Petitioner And The State, Government of A.P., rep. By its Secretary, EFS & T Dept., A.P. Secretariat, Hyderabad & 2 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.8045 OF 2006 ORDER : The petitioner is a company engaged in the manufacture of Vanaspathi, Refined Oil and Solvent Extracted Oils. This writ petition is filed seeking a Mandamus directing the 2nd respondent – Municipal Corporation of Hyderabad to demolish the alleged illegal structures made by the respondent No.3 right adjacent to the Western boundary wall of the petitioner industry. It is alleged that soon after the 3rd respondent started the construction of the building in question, notices under Section 452 of the Hyderabad Municipal Corporations Act, 1955 (for short, ‘HMC Act, 1955’) were issued by the 2nd respondent Corporation calling upon to show-cause as to why the said constructions should not be removed or pulled down as the same were not in accordance with the sanctioned plan. However by that time the 3rd respondent has already filed O.S.No.4077 of 2003 on the file of the Court of the X-Junior Civil Judge, City Civil Court, Hyderabad, for perpetual injunction and a temporary injunction has been in operation restraining the Corporation from interfering with the property in question. Hence no further steps could be taken and in the meanwhile, the 3rd respondent had completed the construction of the building. It is alleged that the 2nd respondent Corporation having colluded with the 3rd respondent, had deliberately failed to take the steps to get the interim injunction vacated and allowed him to complete the illegal constructions. Though the petitioner by letter dated 17.2.2006 and 2.3.2006 requested the 2nd respondent Corporation to take necessary steps to prosecute the suit in a proper manner and also requested to furnish the copies of the notices that were already issued to the 3rd respondent, the 2nd respondent Corporation failed to respond and merely advised the petitioner to get itself impleaded as a party to the pending civil suit. Thereafter the petitioner filed I.A.No.145 of 2006 to get itself impleaded as a defendant to O.S.No.4077 of 2003. However by order dated 20.02.2006 the said application was dismissed by the Civil Court. Hence the present writ petition with the above said prayer. In the counter-affidavit filed on behalf of the Corporation, it is stated that the necessary steps have already been taken for filing a written statement in O.S.No.4077 of 2003. While denying the allegation that the Corporation has failed to take the necessary steps to favour the 2nd respondent, it is stated that all necessary steps are being taken in accordance with law. In the counter-affidavit filed by the 3rd respondent, the allegations that the constructions made by him were contrary to the sanctioned plan and without obtaining valid permission have been categorically denied. It is further stated that pursuant to the orders passed by the A.P. Pollution Control Board directing closure of the company on the ground of causing air and noise pollution, the petitioner company was not in existence at all on the date of filing of the writ petition. It is further pleaded that the 3rd respondent is the owner of H.No.1-8-530 which is beside the Western boundary wall of the petitioner company and located in the densely populated area of Chikkadapally. After demolition of the old house, apartments have been constructed as per the valid permits granted by the Corporation dated 4.1.2003, 20.5.2003 and 3.6.2003, without any deviation from the sanctioned plan and leaving proper setbacks. It is further stated that the 3rd respondent along with 167 residents of St.No.7, Chikkadapally, lodged a complaint before the Pollution Control Board against the petitioner company alleging air and noise pollution and requesting to take steps for its closure. On the basis of the said complaints, a closure order was passed by the A.P. Pollution Control Board on 20.12.2005 and the petitioner was directed to shift its establishment to Kakinada by 31.12.2005. The said decision of the A.P. Pollution Control Board was also upheld by the appellate authority. Since the 3rd respondent is the convener of the struggle committee, who agitated for closure of the petitioner company, the petitioner made a false complaint before the Corporation alleging illegal constructions by the 3rd respondent. Thus it is alleged that the writ petition is nothing but an attempt to satisfy his personal vendetta and not at all bona fide. Moreover, since the civil suit is pending, there is no cause of action for the present writ petition. Heard the learned counsel for both the parties. That fact that O.S.No.4077 of 2003 is pending as on today and the temporary injunction has been in operation is not disputed before this Court. Admittedly the alleged illegal construction made by the 3rd respondent beside the Western boundary wall of the petitioner is the subject-matter of the said suit. In view of the pendency of the proceedings before a competent Civil Court, it is neither necessary nor proper for this Court to express any opinion as to the correctness of the allegations made by the petitioner. As a matter of fact, various allegations made by the petitioner against the 3rd respondent as well as the 2nd respondent Corporation are disputed questions of fact which cannot be enquired into and decided by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. It is true that the Corporation is bound to take steps for removal of unauthorized or illegal constructions under Section 452 of the Hyderabd Municipal Corporations Act, 1955 and in the event of its failure to discharge the statutory function, a Writ Petition can be maintained under Article 226 of the Constitution of India by a person whose rights are effected. However in the instant case the matter is already seized by a competent Civil Court and an order of temporary injunction is operating against the Corporation. Hence the Mandamus as prayed for cannot be issued at this stage. It is also relevant to note that the petitioner has never chosen to challenge the order passed by the civil court dismissing the petitioner’s application to get itself impleaded as a party to the suit and the same has become final. In the circumstances, the mere fact that the petitioner is not a party to the civil suit is not a valid ground to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Accordingly, the Writ Petition is hereby dismissed leaving it open to the learned X-Junior Civil Judge, City Civil Court, Hyderabad to proceed with O.S.No.4077 of 2003 and decide the same in accordance with law. No costs. ______________ G. ROHINI, J. DT. 08.09.2009 gbs