Yeleswarapu Hanuma Kumari vs The State Of Ap
2022 Latest Caselaw 9742 AP

       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

              WRIT PETITION No.34274 OF 2022

JUDGMENT:-


1.     This writ petition has been filed under Article 226 of the

Constitution of India for a direction in particular for issuance of

a writ of Mandamus directing the 2nd respondent to take further

action pursuant to the provisional order dated 30.12.2021,

passed against the 3rd respondent as also for removal of the

constructions raised by the 3rd respondent said to be illegal and

unauthorized being contrary to and in violation of the

sanctioned plan and building permit order dated 27.09.2021.

2. Learned counsel for the petitioner submits that the

petitioner as plaintiff filed O.S.No.493 of 2021 against the 3rd

respondent with respect to the same property being aggrieved

from raising of unauthorized constructions by the said

respondent.

3. He further submits that another O.S.No.No.539 of 2021

has been filed by the 3rd respondent on the file of the Principal

Junior civil Judge, Tenali against the petitioner's husband and

the son, involving the same property.

4. In O.S.No.493 of 2021, the court of the Principal Junior

Civil Judge, Tenali passed the following interim order dated

02.09.2021:

"Interim injunction is granted in favour of petitioner/plaintiff by directing the respondent/defendant and her men are directed not to make any foundation or trenches very adjacent to the wall of the petitioner/plaintiff till the disposal of the petition and the respondent is directed to proceed with the construction by following rules and pursuant to the municipal plan."

5. In O.S.No.539 of 2021, the learned trial court has passed

the following ad-interim order dated 17.09.2021:

"It is hereby ordered that you the respondents 1 and 2/defendants are directed not to interfere with the construction of petitioner/plaintiff as per her entitled in the petition schedule property till the disposal of the petition on compliance of mandatory provision under Order 39 Rule 3(a) of CPC."

6. Sri G. Naresh Kumar, learned counsel representing the

2nd respondent-Tenali Municipality submits that the Municipal

Corporation issued the provisional order dated 30.12.2021 to

the 3rd respondent directing to stop the construction as also to

remove the constructions raised, in view of the deviations to

which the 3rd respondent did not submit any reply and

consequently the confirmation order was passed on 02.08.2022.

7. Learned counsel for the petitioner submits that the 2nd

respondent be directed to take further action against the 3rd

respondent in view of the orders passed by the Municipal

Corporation.

8. I have considered the submissions advanced by the

learned counsel for the petitioner and perused the material on

record.

9. From perusal of the order of temporary injunction in

O.S.No.493 of 2021, it is evident that the learned trial court, in

the suit filed by the petitioner, inter alia directed the respondent

therein, i.e. the present respondent No.3, to proceed with the

constructions by following the rules and the municipal plan. In

O.S.No.539 of 2021 also, filed by the 3rd respondent, the

defendants therein, who are the husband and the son of the

present petitioner, have been directed not to interfere with the

constructions of the 3rd respondent.

10. In view of the aforesaid orders as also the pendency of the

suit with respect to the subject property and between the same

parties as aforesaid this court is not inclined to entertain the

writ petition, inasmuch as it involves disputed questions of fact,

and passing of any order by this Court may result in orders in

conflict with the temporary injunction orders which as

submitted by the learned counsel for the petitioner are not

under challenge.

11. The orders passed by the Municipal Corporation, can also

not be directed to be implemented, by means of the present writ

petition which in view of pendency of the suit proceedings as

also the temporary injunction orders, is considered not to be an

appropriate remedy, at this stage.

12. The writ petition, is dismissed for the aforesaid reasons

only, leaving it open to the petitioner to pursue the suit

proceedings and to take such steps therein as may be advised

to bring it to the notice of the learned trial court regarding the

provisional as also the confirmation order passed by the

Municipal Corporation. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date:19.12.2022 Gk

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.34274 OF 2022

Date:19.12.2022 Gk.