HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 16261 OF 2007 DATED 13TH OCTOBER, 2014.
BETWEEN Smt. Faritha Riyaz and anr ….Petitioners And Vijayawada Municipal Corporation, Rep. by its commissioner, Vijayawada and anr ..Respondents.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 16261 OF 2007
ORDER:
Heard the learned Counsel for the petitioners and learned Standing Counsel for the first respondent.
The petitioners purchased two house plots admeasuring 269 square yards each comprised in R.S.No.24/4 of Bhavanipuram village, Urmial Nagar within the limits of Vijayawada Municipal Corporation. Both the aforesaid properties are adjacent to each other. When the third parties tried to interfere with the possession and enjoyment of the petitioners, the petitioners instituted a suit, O.S.No. 204 of 1996 on the file of the learned II Additional Junior Civil Judge, Vijayawada seeking permanent injunction and the said suit was decreed by judgment and decree dated 28.12.1998. The appeal A.S.No.15 of 1999 preferred by the third parties was dismissed by judgment and decree dated 5.4.2005. When the first respondent proposed to lay a road on the land of the petitioners without any authority of law, the petitioners filed suit, OS.No.90 of 2004, which was later re- numbered as O.S.No.1737 of 2004 on the file of the II Additional Junior Civil Judge, Vijayawada seeking a mandatory injunction to the first respondent to remove the structures raised in the aforesaid property, to remove the mud road and also to remove the underground pipelines and also injunction against the second respondent to remove the high tension wires passing over the first petitioner’s property. When there was no presiding officer at that point of time, present Writ Petition was filed seeking the self same relief as sought for in the aforesaid suit.
The first respondent filed a separate counter affidavit stating that the said suit proceedings are at the stage of final disposal and that since the petitioners have invoked the alternative remedy, the present Writ Petition is not maintainable. It is submitted that the road now disputed by the petitioners is a Master Plan road and in the implementation of the Master Plan, the road was laid.
The second respondent also filed a separate counter affidavit stating that the department has laid the electrical poles and lines about 10 years back for facilitating power supply to Sri Kanaka Durga Saraswathi Colony Society, Bhavani Puram, Vijayawada and the said lines were laid on the municipal road. When the poles were erected and electricity connection was given to the consumers, there was no objection from any quarter. It is further stated that in order to solve the low voltage problem, the department has proposed to construct a new transformer in the said area by the side of the road and at the time of erection of transformer, it has come to the notice of the Department of the pending litigation and therefore the Department has selected a new place for erection of the transformer.
It is clear from the counter affidavit filed by the first respondent that the petitioners have instituted suit, O.S. No.1737 of 2004 seeking mandatory injunction for removal of the road and drainage pipelines laid in the land claimed by them and the said suit was ripe for disposal. In view of the substantive relief sought for by the petitioners in the said suit, the present Writ Petition is not maintainable and therefore the same is accordingly dismissed giving liberty to the petitioners to pursue their remedy of civil suit already instituted in the competent Court of law. However, it is made clear that the dismissal of the present Writ Petition shall not be construed as expressing opinion on the facts of the suit and it will not come in the way of disposal of the suit by the competent Civil Court.
Miscellaneous petitions pending consideration if any in the Writ Petition shall stand closed. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO DATED 13TH OCTOBER, 2014.
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