THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.10282 of 2011 Dated 19th August, 2011 Between: Gamini Chinna Raju and another …Petitioners And Kakinada Municipal Corporation, Kakinada, East Godavari District, rep.by its Commissioner and another …Respondents Counsel for the petitioners: Sri M.V.S.Suresh Kumar Counsel for respondent No.1: Sri S.Nageswara Reddy Counsel for respondent No.2: Sri Ch.Dhanamjaya The Court made the following: ORDER: Endorsement, dated 01.03.2011, of respondent No.1- Corporation, whereby it has rejected the plan of the petitioners for grant of building permission, is assailed in this writ petition. The petitioners purchased 299.37 sq.yards of vacant land from its original owner. The vendor of the petitioners has earlier sold the adjacent property to third parties over which an apartment was constructed. Respondent No.2 comprises the occupants of the flats in the said apartment. When the petitioner applied to respondent No.1 for grant of building permission, the latter refused to grant permission on the ground that the suit filed by respondent No.2 is pending and that respondent No.1 is also a party to the said suit. Sri M.V.S.Suresh Kumar, learned counsel for the petitioners, submitted that when his clients are the lawful owners of the property, respondent No.1 cannot refuse to grant building permission merely on account of pendency of a civil suit filed by respondent No.2. In support of his submission, the learned counsel placed reliance on Hyderabad Potteries Private Limited v. Collector, Hyderabad[1] and K.Pavan Raj v. Municipal Corporation of Hyderabad[2]. Sri S.Nageswara Reddy, learned Standing Counsel for respondent No.1, and Sri Ch.Dhanamjay, learned counsel for respondent No.2, opposed the above submissions. Before deciding on the validity of the impugned endorsement, a brief background of the litigation between the petitioners and respondent No.2 needs to be noted. Respondent No.2 has filed O.S.No.1658 of 2004 in the Court of the learned Principal Junior Civil Judge, Kakinada for permanent injunction restraining the vendor of the petitioners and respondent No.2 from interfering with their peaceful possession and enjoyment of the plaint schedule property and also from alienating the red marked portion of the plaint rough plan. The civil Court after full-fledged trial inter alia held that the suit for permanent injunction claiming easementary right without declaration of such right is not maintainable. As though taking a cue from the said observation, respondent No.2 has filed O.S.No.691 of 2010 in the Court of the learned III Additional Senior Civil Judge, Kakinada for declaration of its easementary right and also for permanent injunction. The petitioners also filed O.S.No.640 of 2009 in the Court of the learned I Additional Senior Civil Judge, East Godavari District for declaration of title, recovery possession and direction to respondent No.2 to remove the structures by way of mandatory injunction. Both the learned counsel submitted that in none of these suits, interim orders are granted and the suits are pending. In this background, the impugned endorsement has been issued. In Hyderabad Potteries Private Limited and K.Pavan Raj (1 and 2 supra), this Court held that when an application for grant of building permission is made, the Corporation can prima facie examine the title of the applicant and that it cannot make a roving enquiry into the disputes between the two private parties and refuse grant of permission merely on account of the fact that the rival party has raised an objection. In the instant case, the fact that the petitioners have purchased the property in question from its lawful owner is not in dispute. The objection of respondent No.2 pertains to its right to use the said property for parking purposes on the ground that its vendor, who constructed the flats, has unlawfully converted the stilt area meant for parking for other purposes and that he has undertaken to give the land subsequently sold to the petitioners for parking in lieu of stilt area which is converted for other purposes. In my opinion, unless respondent No.2 establishes its easementary right before the civil Court, in which, the suit filed by it is pending, the petitioners, who are the lawful owners of the property, cannot be prevented from constructing a building. In the absence of any order restraining respondent No.1 from approving the building plan, the petitioners’ application cannot be rejected on the ground of mere pendency of a civil suit filed by respondent No.2. Such rejection resulted in negation of the lawful right of the petitioners to use their property by constructing a building. As regards the vacant site admeasuring 15.66 sq.yards, which is subject matter of O.S.No.640 of 2009 filed by the petitioners, the learned counsel for the petitioners fairly conceded that to that extent, the petitioners, who are not in possession of the property as of now, may not be entitled to construct the building over the same. In this view of the matter, the impugned endorsement cannot be sustained and the same is accordingly quashed. Respondent No.1 is directed to consider the petitioners’ building plan, after excluding the extent of 15.66 sq.yards. Grant of building permission and construction of the building shall be subject to the result of the pending civil litigation. The writ petition is accordingly allowed. As a sequel to disposal of the writ petition, W.P.M.P.No.12669 of 2011 is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 19th August, 2011 VGB [1] 2001(3) ALD 600 [2] 2008(1) ALD 792