THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.24597 OF 2009 ORDER: This Writ Petition is filed seeking to issue writ of Mandamus declaring the action of respondent Nos.1 to 4 in not considering the petitioner’s representations, dated 04.12.2006, 12.06.2007, 08.09.2008, 12.01.2009 and 06.03.2009 for conducting enquiry with regard to the sanctioning of plan granted vide proceedings, dated 22.12.2005, in favour of respondent No.6 for establishment of filling station at Saroornagar, Hyderabad by illegally encroaching into the land as illegal and arbitrary. 2. The averments, in brief, stated in the affidavit filed in support of the writ petition may be stated as follows: The petitioner is the owner and is in peaceful possession and enjoyment of the house bearing Municipal No.1-71, 2-86, 2-117 (Old), 11-2-11 (New) situated at Saroornagar, Hyderabad. There is a common passage existing towards her house from the main road, which is “17” feet in width and the petitioner along with the neighbouring house owners were using the said passage since several decades and there is a muslim graveyard adjoining to the common passage. Respondent No.6 purchased houses by manipulating the area in the sale deeds and thereafter, executed lease deed, dated 04.10.2005, in respect of H.Nos.11-2-8 to 11-1-10/1 (New) and House Nos.11-2-112 to 11-2-116 (old) in favour of respondent No.5 for starting a filling station by demolishing the old houses and suppressed the house of the petitioner in the lease deed, which is adjacent to H.No.11-2-10 and 11-2-10/1. Respondent Nos.5 and 6 fraudulently suppressed the house of the petitioner in the lease deed, dated 04.10.2005, and applied for permission and respondent No.3, without conducting any enquiry, issued No Objection Certificate for proposed new retail outlet of petrol/diesel vide its letter, dated 24.10.2005, to respondent No.5 subject to condition that respondent No.4 has to examine the ownership and ULC aspect, but respondent No.4 did not conduct any enquiry and failed to ascertain as to the ownership of the land. Respondent No.3 granted technical approval of building plan for proposed new retail outlet of petrol/diesel on 28.10.2005 to respondent No.5 and forwarded to respondent No.2 for necessary action, who permitted respondent No.5 to carry out the construction of the retail outlet of petrol/diesel i.e., filling station. Respondent No.5, without obtaining any consent or no objection from the owners of the surrounding residential houses, obtained permission from respondent Nos.1 to 4 to run the petrol filling station. The petrol and diesel tanks of the filling station are attached to the house without any set back, which is dangerous to the life of the petitioner, her family members and also the surrounding residents of the filling station. Due to the existence of the petrol and diesel tanks on the eastern and northern side of her house, the compound wall of her house is getting damaged and there is every threat that it may collapse at any time. Respondent No.5 encroached the common passage of 17 feet width road, muslim graveyard and removed the existing railing of old historic stonewall of Saroornagar Tank. Though the petitioner made several representations on 04.12.2006, 12.06.2007, 08.09.2008, 12.01.2009 and 06.03.2009 to respondent Nos.1 to 4 to conduct a proper enquiry and fish out the illegality committed by respondent Nos.5 and 6 and cancel the permission granted on 22.12.2005, no action has been initiated. Hence, she filed the present writ petition. 3. Separate counters have been filed by the respondents denying allegations made by the petitioner. 4. In the counter filed by respondent No.2 on behalf of respondent Nos.1 and 2, representing Greater Hyderabad Municipal Corporation, it is stated that the petitioner may be the owner of the house, but denied that she is the owner of the land as no documents were produced in proof of the same. It is stated that the petitioner is having access to her house through the entrance of the grave yard along its compound wall and other than that, there is no other 17 feet passage. It is also stated that respondent No.6 was the owner of the said premises and pursuant to the grant of building permission, a lease was entered into between respondent Nos.5 and 6 and the petrol pump was constructed and the same is being run by respondent No.6 for the last four years after obtaining necessary licenses and permissions. It is further stated that they are taking steps to call for the documents from both the petitioner and respondent Nos.5 and 6 and basing on the survey report, if it is found that any encroachments are made by respondent Nos.5 and 6, they would take all steps to remove such encroachments. 5. Respondent No.3 filed counter affidavit stating that on the representation made by respondent No.6 to respondent No.4 -District Collector, Ranga Reddy District, for issuance of No Objection Certificate for erection of petrol retail outlet, respondent No.4 forwarded the same to respondent No.3, being the statutory authority to examine such proposals. After conducting necessary enquiry, as the subject premises is earmarked for residential use, the said proposals have been rejected vide letter dated 20.11.2003. Subsequently, respondent No.6 approached the Government for conversion of land from residential use to transportation use and after calling for its remarks, the Government issued G.O.Ms.No.23, dated 10.1.2005, converting the land use subject to certain terms and conditions. Subsequently, respondent No.4, after collecting the necessary charges, granted building permission vide letter, dated 28.10.2005. It is also denied about the committing of illegalities in technical sanction of building permission. 6. Respondent No.4-District Collector filed counter stating that on the application made by respondent No.6 for grant of NOC for the proposed retail outlet in the subject premises, the matter has been enquired by various authorities viz., Commissioner of Police, Cyberabad; Divisional Fire Officer, Ranga Reddy District; Deputy Collector & Tahsildar, Saroornagar Mandal, vide letter dated 5.9.2003, and though the other officials have recommended for grant of NOC, respondent No.3-HUDA rejected the same on the ground that the subject land is earmarked as residential zone. It is also stated that subsequently, on the application made by respondent No.6, the Government issued orders for conversion of land from residential use to commercial use for establishment of petrol bunk. It is also stated that on the proposal sent by respondent No.5-Bharat Petroleum Corporation Limited for grant of NOC in the subject land, the Executive Engineer (R & B), Roads Division, Hyderabad, and the Vice Chairman, HUDA, have recommended for grant of NOC for the proposed retail petrol outlet subject to certain conditions and as respondent No.6 submitted his explanation assuring to fulfill the said conditions, as per the recommendations of all the enquiry officers, NOC has been issued. 7. The counter filed by respondent No.5-Bharat Petroleum Corporation Limited is a total denial of the averments in the writ petition. An application was made for grant of NOC for establishment of petrol retail outlet and after conducting enquiries by various authorities, all the authorities have recommended for issuance of NOC and after getting permission from the Departments concerned, retail outlet was established in the year 2006. After satisfying with the documents produced by respondent No.6 with regard to the title of the subject property, further action has been taken. The allegation that respondent Nos.1 to 4 have granted permission without following the rules is also denied. After verifying the documents and after getting the legal opinion only, steps were taken to establish the retail outlet after taking due permissions and no encroachment has been made as alleged by the petitioner. 8. Respondent No.6 filed counter denying the averments and also maintainability of the writ petition. He is running the petrol bunk in the premises bearing Nos.11-2-8 to 11-2-10/1 and also has a residential house, totally admeasuring 1470 square yards and a part of the said property was purchased by him under three registered sale deeds bearing document Nos.3201/01, 4106/02 and 2355/03 and the rest of the property has been inherited by him from his ancestors. He has applied for permission and issuance of NOC to set up a petroleum outlet in the subject premises to various authorities and after obtaining necessary permission and NOC from all the authorities concerned, the District Collector issued NOC vide letter dated 28.10.2005. Subsequently, he has entered into a lease agreement with respondent No.5-BPCL for a period of 30 years vide lease deed dated 4.10.2005 and invested huge amounts for establishment of petrol outlet by securing loans from the financial institutions. The petitioner is residing in a house, which is adjacent to his property, wherein the petrol bunk is situated and abutting to the house of the petitioner, there is a Muslim grave yard and there is only one passage to the said grave yard and to the house of the petitioner. Except the said common passage, as there is no other way to reach her house and that since the petitioner alone is living besides the grave yard and no other person is residing in the vicinity, the petitioner is scared to reside in the said house and making efforts to sell away the said house and was requesting him to purchase the same. As he did not agree to her request, the petitioner started coercing him by making various complaints to the authorities. 9. In retaliation to the said counters, the petitioner also filed a reply affidavit. 10. Heard learned counsel for the respective parties and perused the material available on record. 11. The relief sought for in the writ petition is to declare the action of the official respondents in not considering the petitioner’s several representations, dated 04.12.2006, 12.06.2007, 08.09.2008, 12.01.2009 and 06.03.2009 for conducting enquiry with regard to the sanction of plan in favour of respondent No.6 for establishment of filling station at Saroornagar as illegal. As seen from all the representations made by the petitioner, it is stated that respondent No.5 constructed and encroached the common passage width of 17 feet existing towards the petitioner’s house from the main road and encroached the Muslim graveyard adjoining to the common passage and by removing the railing consists of old historic stone wall of Saroornagar Tank. 12. Learned counsel for the petitioner stated that by virtue of the judgment and decree in O.S.No.70 of 1996, dated 01.12.1980, on the file of Munsif Magistrate, Hyderabad East and North, the existence of 17 feet passage was accepted by the concerned Magistrate and that with regard to the conversion of title land admeasuring 950.39 sq.mts, permission was granted and there was no expansion for the remaining 25 sq.metres after deduction of certain extent 727.19 sq.mts were left and therefore, that is apparently the existing passage. 13. On the other hand, learned counsel appearing for respondent No.2 contended that a joint survey was conducted; that the petitioner failed to produce any documents to show about the existence of the passage; that on physical verification, there is no such passage in existence and hence, the writ petition is devoid of merit, as the representations of the petitioner have already been considered. 14. On the other hand, learned counsel appearing for respondent No.3 contended that the Government has given permission to change the land to an extent of 950.39 sq.mts. 15. Learned counsel appearing for respondent No.6 stated that after obtaining necessary permission, the petrol bunk was constructed; that there was no encroachment to the passage; that though the net area is available after expansion of the road is 727.19 sq.metres, respondent No.6 also purchased some other land and that the total extent of the land is 1470 sq.yards of site and therefore, there are no grounds to issue a direction. 16. The dispute is with regard to 17 feet passage, which was running by the side of the petrol bunk. It is the specific case of the petitioner that lease was granted for running the petrol bunk by the authorities concerned to an extent of 727.19 sq.metres of site after affecting the proposed 30 metre master plan road. According to the learned counsel for the petitioner, the lease deed shows an extent of 745.82 sq.metres. Therefore, there is no expansion for this extent of land by the respondents. In pursuance of the directions given by this Court, a survey was conducted and the officials of respondent No.2 filed report on 06.09.2010. In pursuance of the direction, dated 25.08.2010, respondent No.2 issued notices to the petitioner and respondent Nos.5 and 6 calling for documents for verification within three days. The petitioner has not submitted any documents within the stipulated time whereas respondent No.3 submitted copy of the documents along with the sanctioned plan for construction of petroleum filling station. After survey, it was noticed that there was no passage of 17 feet existing as alleged by the petitioner. 17. The petitioner is using the entrance of the graveyard along with its compound wall for ingress and egress to her house. So, from the material available on record, there is a serious dispute with regard to the existence of 17 feet passage. According to the petitioner, the said passage is existing by the side of the petrol bunk and it is being used for ingress and egress towards her house whereas respondent No.2 filed counter affidavit specifically stating that there is no such passage in existence by the side of the petroleum bunk and therefore, when there is a serious dispute with regard to a question of fact, that cannot be adjudicated in the writ petition exercising the powers under Article 226 of the Constitution of India. Though it is stated that there was excess land of 25 sq.metres, according to the learned counsel for respondent No.6, it has been specifically stated in the counter that respondent No.6 is having a total extent of 1470 sq.yds of site, including the site where the petrol tank is situated and therefore, the excess land that was found after road widening cannot be said to be a passage. When there is a serious dispute with regard to the passage, the same cannot be determined in this writ petition. According to the learned counsel for the petitioner, the petrol bunk has not been laid as per the sanctioned plan, whereas the counsel appearing for respondent No.6 specifically stated that the petrol bunk was constructed in accordance with the sanctioned plan. However, there is no material to show that the petrol bunk was constructed contrary to the sanctioned plan. Hence, there are no grounds and the writ petition is devoid of merits and liable to be dismissed. 18. Accordingly, the writ petition is dismissed. There shall be no order as to costs. _______________ K.C.BHANU, J 29th December 2011 AMD THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.24597 OF 2009 29th December 2011 AMD