HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.4192 of 2000 Date: June 11, 2014 Between:
Country Club (India) Ltd., Rep. by Chairman & Managing Director Y. Rajeev Reddy, Hyderabad.
… Petitioner And
1. Chief City Planner, Municipal Corporation of Hyderabad, Hyderabad & 2 others.
… Respondents * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.4192 of 2000 O R D E R:
Heard learned counsel for the petitioner, learned standing counsel for the first respondent and the learned counsel for the 2nd respondent.
2. This writ petition was filed challenging the order of the Chief City Planner, Municipal Corporation of Hyderabad, in Ltr. No.OF/98/251/Enf/2000/798 dated 07.03.2000.
3. By the impugned letter, the Chief City Planner while referring to the order in W.P.No.26564 of 1998, dated 11.11.1998, stated that respondents 2 and 3 have been agitating about blocking of the road between Begumpet fly over area and Uma Nagar by the Country Club. The Pollution Control Board is not in a position to construct its proposed building also in view of the blocking of access. The petitioner was stated to have unauthorizedly constructed a compound wall and gate on the road without taking approval of the municipal authorities under Section 428 of the HMC Act, 1955. He relied on the document of the year 1969 of the District Survey map and concluded that road blocked by the petitioner by erection of unauthorized gate was shown as public street. The petitioner was therefore directed to remove obstructions on the road including recently fixed unauthorized gate to make it free for the public and the Pollution Control Board to make free movement within seven days.
4. A perusal of the order shows that the Chief City Planner came to the conclusion that the disputed road is a public street and he relied on a document of the year 1969. The said issue was considered by this Court in the earlier writ petition, W.P.No.26564 of 1998, and held that this Court was not inclined to go into the aspect , as it is for the petitioner or concerned authorities to take up appropriate steps in this regard with regard to nature of the road. This Court also held that the plea raised by the petitioners therein that by allowing the use of that road for the last several decades, the public also acquired easementary right to use that road and that cannot be established in a proceeding under Article 226 of the Constitution. It is held that if the petitioner has a right of way, it is for them to establish the same by adducing necessary evidence in appropriate proceedings, but that cannot be decided under writ proceedings. In spite of those observations, the first respondent decided on his own that the disputed road is a public street without hearing the parties. The power and jurisdiction of the first respondent is also seriously disputed by the learned counsel for the petitioner as well as by the counsel for the 2nd respondent.
5. It is needless to state that all public streets vest in Corporation under Section 373 of the Greater Hyderabad Municipal Corporation Act and if it is a public street, it is for the Corporation to take necessary steps for protection of that public street. But the nature of the street in the instant case is disputed by the petitioner as well as by the respondents. The petitioners submit that it is a private street, whereas respondents 2 and 3 state that it is a public street. No categorical finding was recorded in the earlier litigation in W.P.No.26564 of 1998 with regard to nature of the street.
6. In the circumstances, the impugned letter dated 07.03.2000 passed by the first respondent is set aside and the Commissioner, Greater Hyderabad Municipal Corporation, is directed to decide the nature of the disputed street between Begumpet fly over area and Uma Nagar, for which purpose the 2nd respondent is directed to submit appropriate representation along with necessary documents in his possession in support of their plea. The petitioner also shall adduce necessary evidence in support of their contention. The 3rd respondent also shall depute one of the responsible officers for representing their case for Commissioner, Greater Hyderabad Municipal Corporation (GHMC). The 2nd respondent is given 15 (fifteen) days time from the date of receipt of a copy of this order to submit representation. Upon receipt of which the Commissioner, GHMC, shall issue appropriate notices to all the concerned parties, hear and dispose of the matter relating to the nature of the road between Begumpet fly over area and Uma Nagar and the parties are at liberty to take necessary steps in accordance with law thereafter.
7. Subject to the above observation, the writ petition is disposed of. Pending miscellaneous petitions, if any, shall stand dismissed in consequence. No costs.
A. RAMALINGESWARA RAO, J Date: June 11, 2014 BSB
33 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.4192 of 2000 Date: June 11, 2014 BSB