IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.4078 of 2006 Between: Rajaram Lahoti … Petitioner And Sirpur Kagaznagar Municipality, Sirpur Kagaznagar, A.P. & others. … Respondents Counsel for the Petitioner: Sri Bankatlal Mandani Counsel for respondent No.1: Ms. D. Madhavi for Smt. Shanti Neelam Counsel for respondent No.2: AGP for Revenue Counsel for respondents 3-5: Sri Kovai Venugopal The Court made the following: THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.4078 of 2006 ORDER: This writ petition is filed for a Mandamus to declare the inaction of respondent No.1 in removing the encroachment made by respondent Nos.3 to 5 over northern passage of the petitioner’s building bearing Door No.1-5-10, Subash Road, Sirpur Kagaznagar Town, as illegal and arbitrary. The petitioner sought for a consequential direction to respondent No.1 to take immediate action for removal of the encroachment made by respondent Nos.3 to 5. I have heard Sri Bankatlal Mandani, learned counsel for the petitioner, Ms. D. Madhavi representing Smt. Shanti Neelam for respondent No.1 Municipality, learned Assistant Government Pleader for Revenue for respondent No.2 and Sri Kovai Venugopal appearing for respondent Nos.3 to 5. The petitioner is the owner of property bearing Door No.1-5- 10, Subash Road, Sirpur Kagaznagar. He averred that as per the master plan, there is a public road towards North of his building. When persons by name K. Veeraiah Tudur Yadav, Narsaiah and Ramulu tried to encroach upon the said site, the petitioner filed O.S.No.75 of 1978 in the Court of the Munsiff Magistrate, Sirpur Kagaznagar for perpetual injunction against making construction. The said suit was, however, dismissed in default. The petitioner alleged that the defendants in the said suit have inducted respondent Nos.3 to 5 herein into possession of his property, which was allegedly encroached by them and that respondent Nos.3 to 5 started pucca construction by digging trenches over 10’ wide street. The grievance of the petitioner is that though he has made a representation to respondent No.1 and got a legal notice issued on 25.12.2005, no action has been taken to remove the illegal construction. Respondent No.1 and respondent Nos.3 to 5 filed separate counter affidavits. In the counter affidavit filed by the Commissioner of respondent No.1 Municipality, it is inter alia admitted that there is an open space of a width of 7’ behind the houses of respondent Nos.3 to 5 and not of 10’ wide, as alleged by the petitioner. While denying that the Municipality has given the said site to respondent Nos.3 to 5, it is stated that when respondent No.1 has noticed illegal construction by respondent No.3, it has immediately stopped the same by issuing notices and also seized the tin sheets and that thereafter respondent No.3 has not undertaken any construction. With respect to respondent No.4, it is stated that she has produced a patta certificate issued by the revenue authorities on the basis of which permission was accorded for construction of building and that she has not violated any rules in making construction. It is further stated that respondent No.5 has not raised any construction till today. The learned counsel for respondent Nos.3 to 5 stated that the father of the petitioner having withdrawn the civil suit and Writ Petition No.6467 of 1990 filed against the above-named four persons having been dismissed by this Court, the petitioner is not entitled to invoke the jurisdiction of this Court again by filing a fresh writ petition. He also argued that whether there is a lane and if so whether respondent No.3 has raised a construction are the disputed questions of fact, which cannot be adjudicated in a writ petition. It is indeed true that a writ petition for adjudication of disputed questions of fact would not be a proper and appropriate remedy. However, in this case, respondent No.1, which is concerned with the public passage, maintained in accordance with the master plan, has admitted in its counter affidavit that respondent No.3 was found raising illegal construction over the public lane and that immediately steps were taken to prevent such construction and some tin sheets were also seized. Respondent No.3 has not controverted this averment made by respondent No.1 in its counter affidavit. Therefore, to the extent of the allegation made by the petitioner that respondent No.3 has raised a structure over a public lane, there is no dispute. It is the duty and responsibility of respondent No.1 to ensure that the public streets and other public properties should not be encroached by private persons. Therefore, in my opinion, it is not necessary for the petitioner to file a civil suit to the extent of the relief claimed by him in this writ petition, namely; a direction to respondent No.1 to remove the illegal construction raised by respondent No.3 over a public lane. Though respondent No.1 has admitted that “there was illegal construction”, it has, however, not stated whether the said structure was removed. It has only stated that the construction was immediately stopped and tin sheets were seized. Respondent No.1 is therefore directed to remove the said illegal construction, if the same is presently in existence and ensure that respondent Nos.3 to 5 or any other person would not raise any construction over the 7’ lane. If respondent Nos.3 to 5 seek to assert their rights over any part of the said land, they shall be free to approach the competent civil Court for appropriate relief. Subject to the above observations, the writ petition is allowed. __________________________ C.V.NAGARJUNA REDDY, J Date: 05.08.2010. ES