IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 10712 of 2002 Between: 1 Chandra Enclave Welfare Association Rep by its Vice President, Dr.M.V.R.Sharma,s/o.Chandra Mouli R?o. H.No.6-1-276/6, Manasa Hospital, Padmaranagar, Seunderabad. 2 Dr.Bhoopathi Rajashekhar, S/o. b.Rangaiah R/o. H.No.6-1-276 Padmaronagar, Secunderbad. 3 S.Ramdas, S/o. Sathyanarayana R/o. H.No. 6-1-276/A/7. Padmaraonagar, Secunderabad. ..... PETITIONER(S) AND 1 The Muncipal Corporation of Hyderabad Rep by its Commissioner Tank Bund, Hyderabad. 2 Smt.K.Pushpavati W/o. Sri Bhaskaran R/o. 6-1-191/F, Padmaraonagar, Secunderabad. 3 Smt. N.Prema W/o. Sri Margabandu R/o. 6-1-191/F, Padmaraonagar, Secunderabad. 4 T.R.Mallikarjun S/o. Late Ramachandran R./o.6-1-191/E, Padmaraonagar, Secunderabad. 5 Dr.B.Gopal Rao S/o.Sri B.Kutumbaiah R/o.6-1-191 Padmaraonagar, Secunderabad. 6 Dr.M.Seethapathy S/o. Sri Venkataramaiah R/o.6-1-191 Padmaraonagar, Secunderabad. 7 Smt.Rajeswari W/o. Sri Chalapathi Rao R/o.6-1-191/2 Padmaraonagar, Secunderabad. 8 Smt.M.Muralidhar rao, s/o. sri satyanarayana R/o.6-1-190/25/2, Padmaraonagar, Secunderabad. 9 Smt. Seetha Sulochana W/o.Sri Satyanarayana R/o.6-1-190/25/3, Padmaraonagar, Secunderabad. 10 Smt.Shyama Kaur W/o.Sri Bhupal Singh R/o.6-1-190/25/31 Padmaraonagar, Secunderabad. 11 D.Sunil Kumar S/o. Sri Yadigiri Rao R/o.6-1-190/25/1 Padmaraonagar, Secunderabad. 12 Smt.T.Vijayalakshmi W/o.Muralidhar Reddy R/o.6-1-190/25/7 Padmaraonagar, Secunderabad. 13 Smt.T.Yashodamma W/o. Sri Venugopal Reddy R/o.6-1-276/A/7, Padmaraonagar, Secunderabad. .....RESPONDENT(S) 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 to issue an appropriate Writ order or direction particularly one in the natue of Writ of Mandamus declaring the impugned action of the respondent corporation officials in attempting to demolish or otherwise to remove the compound walls at the dead end roads in chandra Enclave Lay-out bungalow No.8 approved by the respondent corporation as back as in the 1985 in file No.216/1/6/B1/75, padmaraonagar secunderabad, as arbitrary, illegal, unjust contrary to law and in violative of principles of the natural justice and in violative of articles 14,21 & 300-a of the consequently direct the respondent corporation not to distube or otherwise demolish encircled compound wall of chandra Enclave padmaronagar Secunderabad and be pleased to pass. Counsel for the Petitioner:MR.B.VENKAT RAMA RAO Counsel for the Respondent No.: MR.KOKASATYANARAYANA RAO The Court made the following : O r d e r : 1. This Writ Petition has been filed by the petitioners who are three in number assailing the action of 1st respondent-Corporation in attempting to demolish or otherwise to remove the compound wall at the dead end road of Chandra Enclave layout bearing Municipal House No.6-1-276, corresponding old bungalow No.8. 2. The 1st petitioner is an association of Chandra Enclave and 2nd and 3rd petitioners are the purchasers of plots in Chandra Enclave. They constructed houses on the plots owned by them. thereon. The case of the petitioners as set out in the affidavit filed in support of the writ petition is that one Shanmukha Raj was the owner and possessor of 10,000 square yards of land with old Bungalow No.8, corresponding to Municipal House No.6-1-276 of Padmaraonagar, Secunderabad. The said property was having all around compound wall with one entrance from Sai Baba Temple Road, Padmaraonagar, Secunderabad. Sri.Shanmukha Raj made the entire land into 22 house plots and obtained sanction of layout from 1st respondent-Corporation in 1985 vide File No.216/1/6/B1/75. The said layout was developed as Chandra Enclave. When the 1st respondent-Corporation contemplated to demolish the existing compound wall without following due process of law, the petitioners approached this Court under Article 226 of the Constitution of India. 3. R2 to R13 came on record as per orders in WPMP.NO.15640 of 2002. 1st respondent filed counter resisting the claim of the petitioners. It is stated in the counter affidavit that the petitioners filed O.S.No.768 of 2002 on the file of First Junior civil Judge, CCC, Secunderabad seeking self same relief and the said suit ended in dismissal and therefore the relief sought for by the petitioners in the writ petition cannot be granted. 4. Heard learned counsel for the parties. 5. Learned counsel appearing for the petitioners submits that the lay out which has been approved by 1st respondent-Corporation is encircled by a compound wall and it formed as a gated community and in which case the demolition of the compound wall deprives the privacy of the plot owners. A further submission has been made that 1st respondent-Corporation has to follow due process of law in the event of the existing compound wall is required to be demolished. 6. Per contra, learned Standing Counsel appearing for the 1st respondent-Corporation submits that the 2nd petitioner-Dr.Bhoopathi Rajashekhar along with C.Premnath filed O.S.No.768 of 2002 seeking self same relief and the said suit ended for dismissal on full-fledged trial and therefore the writ petition is liable to be dismissed. 7. I have gone through the judgment of the civil court passed in O.S.No.768 of 2002. The relief sought for in the suit is to declare that the 1st respondent-Corporation is not entitled to open the dead end road of Chandra Enclave or to remove the compound wall encircling Chandra Enclave corresponding to old bunglow No.8 situated at Padmaraonagar, Secunderabad. The Civil Court framed the following issues for trial: 1) Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed for? 2) Whether the suit is liable to be dismissed for want of notice u/s 685 of HMC Act? 3) Whether the suit as framed is maintainable or not? 4) To what relief? The plaintiffs therein examined four witnesses on their behalf and marked 10 documents. Whereas the defendants therein examined 3 witnesses and marked two documents on their behalf. On considering the material on record and on hearing learned counsel for the parties, the Civil Court recorded a finding that the plaintiffs cannot claim declaration as sought for by them and also consequential relief of perpetual injunction. The relevant portion of the civil court order reads as under: “ Neither the documentary evidence nor the oral evidence adduced by the plaintiffs does not establish the right or ownership or their interest over the A and B dead end compound walls. But on the other hand the evidence of DWs 1 to 3 as contended by the defendants in their oral as well are written arguments categorically establishes the lack of interest of plaintiffs over the A and B dead end compound walls and the inconvenience caused to the other locality people. The defendants also relied upon Ex.B.1 and Ex.B.2. Ex.B.1 is the order of the Hon’ble A.P. High Court in WPMP.NO.13170 of 2002 in W.P.No.10712 of 2002 wherein the Hon’ble A.P. High Court passed order as “In the event of petitioner succeeds in writ petition, municipality will rebuilt the walls which the municipality proposes to demolish at its own costs”. The said order was passed by the High Court on 18.6.2002. So the High Court did not prevent the MCH to demolish the said walls at his own costs. But it shall rebuilt it the petitioners succeed in the writ petition. Ex.B.2 are photographs which discloses the demolition of the compound wall. Even there is no evidence on record to show that the MCH demolished the compound wall at A dead end after filing the suit. The Advocate Commissioner who is examined as CW.1 never deposed; as to the date of the demolition but he only deposed that those were newly demolished and newly constructed. However, he is not a technical person to disclose as to the date of the demolition. The interest of the plaintiffs is personal and the interest of the defendants is public. Once there is a conflict between the personal and public interest, the public interest prevails over personal interest. Hence, the plaintiffs cannot claim the declaration as prayed by them and the relief of perpetual injunction consequential to the declaration. Hence, this issue is answered in favour of the defendants and against the plaintiffs.” 8. In view of the finding recorded by the civil court, the petitioners in this writ petition are not entitled to any relief as sought for by them. Accordingly, this writ petition is devoid of merits and the same is dismissed. No costs. 10th June, 2009. (B.Seshasayana Reddy,J) tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.10712 OF 2002 10TH JUNE 2009.