IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.3982 of 2007 Between: Indla Subramanyam Vasu S/o. Late I. Subramanyam Naidu R/o. D.No. 4-4-147/C, Nehru Nagar, Tirupathi, Chittoor District. ..... PETITIONER AND 1 State of A.P., Rep. by its Principal Secretary, Municipal & Urban Development Department, Secretariat,Saifabad, Hyderabad. 2 The Commissioner Tirupati Municipal Corporation, Tirupati, Chittoor 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 to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in attempting to dig pits to undertake illegal, construction in the petitioner's private absolute property in a total extent of Ac. 5- 44 cents situated in T.S.No. 946 an extent of Ac 4-03 cents and in T.S.No. 947 an extent of Ac 1-41 cents in Tirupati Municipal Corporation Limits is illegal, irregular, arbitrary, high handed violative of principles of natural justice, provisions of A.P. Municipalities Act and the rules framed thereunder and oﬀends articles 14, 21 and 300A of the Construction of India and consequently direct the respondents not to undertake any illegal construction in the above said property without following due process of law and pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: MR.MUNIRAJA IRUGU Counsel for the Respondents: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.3982 of 2007 ORDER: This writ petition has been ﬁled by Indla Subramnyam Vasu assailing the action of the respondents in attempting to dig pits to undertake illegal construction in the property owned by him in an extent of Ac.5.44 cents i.e., Ac.4.03 cents in T.S.No.946 and Ac.1.41 cents in T.S.No.947 situated in Tirupathi Municipal Corporation limits. The petitioner claims that he is the absolute owner and enjoyer of Ac.4.03 cents and Ac.1.41 cents of land situated in T.S.Nos.946 and 947 respectively. His father late I.Subramanyam Naidu purchased the total extent of Ac.5.44 cents under a regular registered sale deed dated 01.04.1958 for sale consideration of Rs.10,880/- from Tirumalasetty Subbanna Setty and Tirumala Setty Govindaswamy Setty. According to the petitioner, the staﬀ of the second respondent came to his land on 24.02.2007 and attempted to dig pits to undertake illegal construction without any manner of right. Hence, the petitioner approached this Court invoking the jurisdiction under Article 226 of the Constitution of India assailing the action of the respondents in interfering with his possession in respect of the land owned by him. Rule Nisi came to be issued on 16.03.2007. An interim direction also came to be granted on the even date vide W.P.M.P.No.5092 of 2007. The second respondent ﬁled counter-aﬃdavit and moved W.V.M.P.No.1611 of 2007 with a prayer to vacate the interim order dated 16.03.2007 passed in W.P.M.P.No.5092 of 2007. When the vacate stay petition came up for consideration, with the consent of the learned counsel appearing for the parties, the writ petition itself is taken up for final disposal. The second respondent ﬁled a counter-aﬃdavit stating that the petitioner applied for approval of a layout for an extent of Ac.1.87 cents in T.S.Nos.946 and 947 of Tirupati Town. The said layout was approved by the Director of Town Planning in L.P.No.43/70 with certain conditions. As per the said approved layout, 10% of the land i.e., 18.73 cents was earmarked as open space for public purpose as per the Municipalities Act, 1965 and the Rules framed thereunder. The petitioner signed the agreement accepting the conditions imposed by the Director of Town Planning in L.P.No.43/70 with regard to handing over the open space to the Municipality is mandatory. The Municipality is taking steps for constructions of drainage along the side of the said open space to avoid inconvenience of drainage and rainwater in the above said land. The petitioner approached the civil Court by ﬁling a suit being O.S.No.75 of 1992 on the ﬁle of the Principal District Munsif Court at Tirupati making the Municipal Council, Tirupati Municipality represented by its Commissioner as ﬁrst defendant seeking relief of permanent injunction restraining the defendants and their men from interfering with his possession and enjoyment over the plaint schedule site. The said suit was dismissed on 30.08.1996 with a speciﬁc observation that when once the site is earmarked as reserved site, the plaintiﬀ has no claim over it and he cannot further contend that it is his absolute property and he is not entitled to such property as his exclusive property. It is further stated in the counter-aﬃdavit that the petitioner ﬁled A.S.No.6 of 1997 on the ﬁle of the IV Additional District Judge, Tirupati and the said appeal was dismissed for default on 13.12.2000. Subsequently, the petitioner ﬁled I.A.No.3 of 2001 for readmission of the said appeal and it was also ended in dismissal on 07.09.2006. The petitioner ﬁled reply aﬃdavit stating that ﬁling of the suit in the civil Court has not been informed to the learned counsel appearing for him in this writ petition and thereby the particulars of the civil suit are not mentioned in the writ affidavit. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the second respondent. The learned counsel appearing for the petitioner submits that the second respondent cannot carryout any activity in the lands owned by the petitioner, without following due process of law. A further submission has been made that the petitioner is the exclusive owner and possessor of Ac.5.44 cents of land situated in T.S.Nos.946 and 947. The learned Standing Counsel appearing for the second respondent submits that the petitioner submitted a layout plan and the same was approved by the Director of Town Planning. As per the approved layout, 10% of the land was earmarked as open space and the present activity is being carried on in the open space as indicated in L.P.No.43/70. It appears that the petitioner earlier approached the civil Court restraining the second respondent from carrying on any activity in the area left out for open space as per Layout Plan No.43/70. The said suit ended in dismissal with a speciﬁc observation that when once the site is earmarked as reserved site the plaintiﬀ has no claim over it and he cannot further contend that it is his absolute property and he is not entitled to such property as his exclusive property. If such is the observation made by the civil Court, the petitioner cannot be permitted to contend that the second respondent has no right to lay drainage on the open space, which was earmarked in Layout Plan No.43/70. In that view of the matter, the writ petition is devoid of merits and the same is accordingly dismissed. The interim order dated 16.03.2007 passed in W.P.M.P.No.5092 of 2007 stands vacated. __________________________ B.SESHASAYANA REDDY, J Date:25.09.2008 Note: Furnish CC within three days B/O va