IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTIETH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL NO : 1549 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 22/09/2008 in WP NO : 5344 OF 2007 on the file of the High Court.) Between: T. Sivamma W/o Late Siddappa R/o 4-5-63, near Ramamandhir, Sadhasivapet, Medak District. ..... APPELLANT AND 1 The Municipal Commissioner, Sadhasivapeta Municipaltiy Sadhasivapeta,Medak District. 2 Mandal Revenue Officer, Sadhasivapeta Mandal, Medak District. .....RESPONDENTS Counsel for the Appellant:SMT.A.PADMA Counsel for the Respondent No.: MR.POLISETTY RADHA KRISHNA(SC FOR MPL(TA)) The Court made the following : JUDGMENT: (Per the Hon’ble Smt. Justice T.Meena Kumari ) Aggrieved by the order, dated 22.10.2008 made in WP No.5344 of 2007 by a learned Single Judge of this court while granting status quo for a period of six weeks, directed the appellant to file an appeal before the Municipal Council of the first respondent within four weeks or to approach competent civil court to establish her right over the site admeasuring 201.23 Sq. Mtrs., the writ petitioner preferred this Appeal. The appellant, who claims to be the absolute owner and possessor of the land admeasuring 201.23 Sq. Mts. in premises No.2-7-14, Siddapur Base, Sadasivapeta Municipality, Medak District, submitted an application to the Municipality seeking building permission, which was kept pending for a period of one and half years. As such, she filed WP No.25962 of 2006 which was disposed of on 2.12.2006 directing the first respondent to consider the application and pass appropriate orders thereon. Consequently, the first respondent granted permission by proceedings dated 14.7.2005 for construction of house in 3 Sq. Mts. out of 201.23 Sq. Mts., showing 125 Sq. Mtrs. as Kandhakam land. Hence, the present writ petition. Counter is filed by the first respondent inter alia stating that the application of the petitioner was considered in the year 2005 permitting her to construct the house at a distance of 125 Feet from the center of NH-9 road and after receipt of such a permission, the petitioner filed WP No. 25962 of 2006, concealing the said permission. The respondent while denying the factum of discrimination, as alleged by the petitioner, in granting permission for construction, to her neighbouring in the name of Kovuru Jaya dated 17.1.2005 after leaving only 65 Mtrs. and insisting the petitioner to leave 125 Mts. of kandhakam land, it is stated that said sanction was revoked. It is further stated that since the petitioner has deviated the sanction plan, a show cause notice under Sec. 288(i) of the A.P. Municipalities Act was issued to her, which was confirmed in Notice No.3/07-08 dated 4.7.2007, against which the petitioner has the remedy of appeal. To know whether the submission of the learned Standing Counsel for the first respondent Municipality that the petitioner constructed building contrary to the sanctioned plan by encroaching the National Highway or whether the construction is in the area where the old building existed, an Advocate – Commissioner was appointed to ascertain the extent of area in which National Highway No.9 is to be laid. His report shows that there are no signs of widening the National Highway on any side of the existing road. The learned Single Judge, having perused the original file of the office of the first respondent, found that some one, which according to the first respondent, son of the petitioner, received the notice, without mentioning date. However, without delving on the issue, the learned Judge observed that whether there is a kandhakam around Sadashivpet and what is the extent of land owned by husband of the petitioner, which she got in partition after the death of her husband, are disputed questions of fact, which cannot be adjudged in an extraordinary jurisdiction under Art. 226 of the Constitution of India and, therefore, while granting status quo existed as on that day for a period of six weeks, disposed of the writ petition, directing the appellant to file an appeal before the Municipal Council of the first respondent within four weeks therefrom or to approach a competent Civil Court for establishing her rights. Aggrieved thereby, the Writ Petitioner preferred this Appeal inter alia contending that when the sanctioned plan was not communicated to the appellant till 28.3.2007 and her application was pending, as per the deeming clause, the constructions made by her leaving 75 feet from National Highway, is not illegal. He further contends that when the recitals of the counter filed by second respondent show that when the kandakam land is 65 feet from National Highway, the constructions made by the appellant is within her area. In the appeal, similar contentions are sought to be raised that were urged before the learned Single Judge. Leaving apart the contention that the notice dated 14.7.2005 was served on the petitioner prior to her filing W.P. 25962 of 2006 or not, it has to be prima facie seen whether there is kandakam around Sadashivpet and what is the extent of land owned by the husband of the appellant after his death. To adjudicate upon these facts, a comprehensive enquiry is to be conducted, which cannot be made under Article 226 of the Constitution of India. In the backdrop of these facts, the learned Single, in our considered view, has rightly directed the appellant to either file an appeal under Sec. 345 of the A.P. Municipalities Act or to approach a competent civil court to establish her rights over an extent of 201.23 Sq. Mts., to which she claims to be the owner. Consequently, we do not find any illegality in the order impugned in this appeal. In view of the facts and circumstances of the case, the order of status quo granted by the learned Single Judge is extended by further eight weeks from today so as to enable the appellant to avail the remedies, as indicated by the learned Single Judge. With the above direction, the Writ Appeal is disposed of. No order as to costs. _____________________ Justice T. Meena Kumari _________________________ Justice C.V.Nagarjuna Reddy January 20, 2009 MAS