Heard Sri Madhava Rao Nalluri vs Unknown
2022 Latest Caselaw 7474 AP

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                WRIT PETITION No.32060 of 2022

JUDGMENT:-

1.    Heard Sri Madhava Rao Nalluri, learned counsel for the

petitioner and Sri G. Naresh Kumar, learned counsel for the

respondents 2 and 3.

2. Learned counsel for the petitioner submits that the

petitioner's vendor had an extent of Ac.0.53 ½ cents out of

Ac.1.07 cents and after sub division the above said Ac.0.53 ½

cents was shown in Sy.No.171/3 of Mukthinuthalapadu Village

of Ongole Municipal Corporation. Subsequently, the petitioner's

vendor converted the same into house site plots and one plot

No.13 to an extent of 267 sq. yards was purchased by the

petitioner. He applied for consideration of the residential

building and the 2nd respondent-the Ongole Municipal

Corporation granted permit vide permit

No.1035/0486/B/ONG/MTPD/2019 dated 16.12.2019. He

further submits that there is stream viz., Aagamthoka flowing in

sy.No.170 of Mukthanuthalapadu Village, from south west to

north east and the same is abutting north-western corner of

Sy.No.171 of Mukthanuthalapadu Village and in between the

said stream and his plot No.13 there are two more plot Nos.14

and 15. The stream is flowing underneath the bridges

constructed by the National Highway authorities on N.H16 and

parallel to the service road. The stream is notified in the master

plan of the Corporation and was also notified in R.S.R of

Mukthanuthalapadu Village which was merged into Ongole

Municipal corporation before 2017 and as per the master plan

of 2017 vide G.O.Ms.No.292 dated 27.07.2017, the said village

including the stream was notified. He further submits that the

petitioner's house building and the site is separated by the

stream from the lands of revenue villages of Throvagunta village.

3. Learned counsel for the petitioner further submits that

the respondents 4 to 6, who are the private persons encroached

the stream due to which the water is flowing during rainy

season. Those respondents have land to an extent of Ac.0.52

cents in Sy.No.392-1B of Throvagunta village and they dumped

waste of the granite factory in between Sy.No.392-B and 1713

and had also laid pipes on the said waste on 21.09.2022 for

constructing a culvert over the said stream without obtaining

any prior approvals from the respondents 2 and 3. The

petitioner's husband submitted representations on 20.09.2022

and 22.09.2022 to the Municipal Corporation and the Assistant

Executive Engineer, Irrigation Section followed by the

representation dated 26.09.2022 to the Commissioner, Ongole

Municipal Corporation, but no action has been taken thereof

With the aforesaid averments and submissions the petitioner

has filed the present writ petition with the following relief:

"the Hon'ble Court may be pleased to issue a writ order or orders more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent Nos. 2 and 3 in not stopping the Respondent Nos. 4 to 7 in constructing culvert with pipes across the stream namely Agamthoka situated in Sy. No. 170 of Mukthinuthalapadu Village Merged into Ongole Municipal Corporation in between Survey No. 171/3 of Mukthinuthalapadu Village and Sy. No. 3921B of Throvagunta Village without obtaining prior permission from the Respondent Nos. 2 and 3 as contrary to the provisions of the A P Municipal Corporation Act 1955 and is illegal arbitrary and in violation of Articles 14 21 and 300A of the Constitution of India and consequently direct the Respondents to stop the construction of culvert with pipes across the stream namely Agamthoka situated in Sy. No. 170 of Mukthinuthalapadu Village Merged into Ongole Municipal Corporation in between Survey No. 171/3 of Mukthinuthalapadu Village and Sy. No. 3921B of Throvagunta Village and remove the already constructed culvert and the waste dumped in Agamthoka stream and pass such other order or orders as the court deems fit and proper."

4. Sri G. Naresh Kumar, learned counsel appearing for the

2nd respondent submits that the matter relates to the Irrigation

Sector but the petitioner approached the Municipal Corporation

which is not the competent authority, by the representation

dated 26.09.2022. He submits that the petitioner ought to have

approached the competent authority.

5. I have considered the submissions advanced by the

learned counsel for the parties and perused the material

available.

6. From the submissions and the pleadings of the writ

petition and also the submissions advanced primarily it

transpires the petitioner has grievance against the activities of

the respondents 4 to 7 the private persons but not with respect

to the petitioner's land or property. The property which is

alleged to have been encroached is said to be a stream to certain

extent viz., Agamthoka flowing in Sy.No.170 of

Mukthanuthalapadu Village.

7. The petitioner at the first instance ought to have

approached the competent authority has submitted by Sri G.

Naresh Kumar, learned counsel for the 3rd respondent but

without approaching the said authority the petitioner has filed

the writ petition of Mandamus. The petitioner's representation

is to the Commissioner, Ongole Municipal Corporation-2nd

respondent which is as per the submission of Sri G. Naresh

Kumar is not the competent authority to take action on such

representation.

8. Besides, the petitioner has submitted the representation

only on 26.09.2022 and has filed the writ petition on

28.09.2022 supported with the affidavit dated 27.09.2022. The

petitioner's husband, though it is submitted that he filed

representation dated 20.09.2022 before the 3rd respondent-the

Assistant Executive Engineer, Irrigation Section-I, Ongole, but

he has not approached this Court and he is not the petitioner

herein.

9. The official respondents, if a statutory representation is

submitted to them or if some act contrary to the rules or

regulations being done by any person is brought to their notice

to invoke their powers under the statute rules etc., ought to be

given a reasonable time to act upon the same just filing the

representation one day and approaching the court the next day

by means of writ of mandamus. Giving the report one day and

approaching the court in one day or within two days for

direction to the authority is not justified.

10. The dispute as raised in the present petition, in the facts

and circumstances of the case cannot be appropriately

adjudicate with the exercise of writ jurisdiction under Article

226 of the Constitution of India as it involves many questions of

fact which require adjudication. The writ petition is not the

appropriate remedy. The petition for writ of Mandamus without

first approaching the competent authority and in the absence of

refusal to discharge a statutory duty or in action in discharge of

the statutory duty is to be established.

11. From the facts it is clearly that the petitioner has not

approached the competent authority for redressal of any such

grievance and the authority he has approached, approaching

only a day before filing of the writ petition. Under the

circumstances, it cannot be said that the authority that there is

a refusal or denial of exercise of the statutory duty, if any on the

part of the 2nd respondent. The writ petition is therefore

dismissed leaving it open to the petitioner to seek such other

appropriate remedy as may be available to her under law.

12. Dismissal of this petition would not come in the way of

the competent authority taking appropriate action having to the

information received vide the representation submitted to them.

13. Accordingly, the writ petition is dismissed. No order as to

costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall also stand closed.

__________________________ RAVI NATH TILHARI,J Date:29.09.2022 SCS/Gk FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGG GGGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.30591 of 2022

Date: 29.09.2022

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