IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 28806 of 2008 Between: Kosuri Suryanarayana, S/o.Late Satyam R/o.D.No.3-60-23, Kothapeta, Chittivalasa, Bheemunipatnam, Visakhapatnam District. ..... PETITIONER AND 1 The State of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration Department, Secretariat, Hyderabad. 2 The Bheemunipatnam Municipality rep. by Commissioner, Bheemunipatnam, Visakhapatnam District. 3 Smt. Mudidana Adilakshmi, W/o.Apparao R/o.D.No.3-60-24, Chittavalasa, Bheemunipatnam, Visakhapatnam 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 to0 issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the inaction of the 2nd respondent in not initiating any action against the illegal and hazardous constructions being undertaken by the 2nd respondent in spite of petitioner representation is illegal, arbitrary, unjust, malafide against to the constitutional guarantees and contrary to the provisions of A.P. Municipalities Act, 1965 and Consequently direct the respondents to demolish the unauthorized and hazardous constructions made by the 3rd respondent in the premises bearing Door No.3-60-24, Chittivalasa within the limits of Bhemunipatnam Municipality and to pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.RAVI CHEEMALAPATI Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : ORDER: Petitioner claims to be the absolute owner of the property in an extent of Ac.0.02 cents of land in Sy.No.3/1 of Chittivalasa, Bheemunipatnam within the municipal limits of Bheemunipatnam Municipality having purchased the same under registered sale deed dated 12.5.1976. Thereafter he constructed a tiled house and residing therein. While so, the 3rd respondent herein, who is his neighbour on the western side of his property, started construction illegally without any sanctioned plan and aggrieved by the same, he filed a suit in O.S.No.164 of 2006 on the file of the Junior Civil Judge, Bheemunipatnam and the same is pending adjudication. He also made a complaint to the municipal authorities to take action against the said illegal construction, in vain. Hence this writ petition seeking appropriate directions to the municipal authorities to demolish the unauthorized and hazardous constructions made by the 3rd respondent herein. Heard the learned counsel for the petitioner, the learned Government Pleader for Municipal Administration, Sri S.Nageswara Reddy for respondent No.2 and Sri K.Sarvabhouma Rao for respondent No.3. Pursuant to the notice issued by this court, the respondents have filed counter affidavits. In the counter affidavit filed by the 2nd respondent, it is stated that the 3rd respondent has applied for permission to the Municipality for constructing RCC roof on the 1st and 2nd floors over the existing ground floor. Pursuant to the complaint made by the petitioner, the concerned authorities visited the locality and verified the same on 15.7.2006 itself. On the report given by the TPBO the Commissioner personally inspected the proposed construction and after thorough satisfaction the plan was sanctioned by the municipality in favour of the 3rd respondent. It is also stated that the 3rd respondent is making the construction in accordance with the sanctioned plan only. The 3rd respondent has also filed a counter affidavit inter alia denying that she is making the constructions unauthorisedly in violation of the sanctioned plan. She denied that the wall between her house and the petitioner’s house is a common wall and that her constructions damaged the house of the petitioner. Since the petitioner has already filed a suit seeking injunction against her from interfering with the wall, this writ petition is not maintainable. Admittedly, the petitioner has already filed a suit against the 3rd respondent seeking injunction against her from interfering with the common wall and the same is still pending. Since the 2nd respondent municipality has filed a counter stating that the 3rd respondent is making the constructions only in accordance with the sanctioned plan and the same is being disputed by the petitioner, the same being a question of fact, requires recording of evidence and a full fledged trial. Therefore, the petitioner can raise all the necessary issues before the Court below in the suit itself by amending the plaint for seeking the relief of demolition of the illegal constructions made by the 3rd respondent which can be adjudicated by the Court below on appreciation of evidence. Therefore, giving liberty to the petitioner to implead the municipality in the suit and to amend the plaint seeking appropriate reliefs, the writ petition is dismissed.. N.V.RAMANA,J DT.3.3.2009 msv