Kasukurthi Venkateswarlu vs The State Of Andhra Pradesh & Ors.

Unsuccessful writ petitioner preferred present intra-Court appeal, challenging the order, dated 31.01.2026, passed in W.P.No.5642 of 2017, whereby learned Single Judge dismissed the writ petition.

Appellant/writ petitioner preferred the writ petition seeking the following relief:

The case of appellant before learned Single Judge was that he purchased Plot Nos.20 and 21 in Survey No. 107/2 of Annavarapupadu, Ongole, Prakasam District, each admeasuring 375 sq. yards, falling in an approved layout, vide registered sale deeds executed in the year 1995. That, towards western side of Plot No. 20, the sale deed clearly reflected the existence of a 20-foot road. That being so, respondents 3 and 4, by occupying road portion, have constructed residential building without even securing proper building permission from competent authority. In those circumstances, the appellant is stated to have made complaint before 2^nd respondent, however, there was no response. Later, appellant made representation, dated 04.08.2014, to the District Collector, Prakasam District, in pursuance to which the Town Surveyor had conducted survey and submitted report that respondents 3 and 4 have made constructions over 20-foot road by occupying the same, thereafter, the Assistant City Planner is stated to have issued notices dated 28.01.2015 and 28.06.2015 to respondents 3 and 4 for producing documents in support of their claim to the said property, thereafter, nothing has transpired. Hence, appellant was constrained to file writ petition.

2^nd respondent-Corporation filed counter-affidavit stating that, in pursuance to the notices, dated 28.01.2015 and 28.06.2015, respondents 3 and 4 submitted documents justifying their title and the building permissions granted in their favour, that apart, even copies of judgments in O.S. No. 228 of 2005 on the file of the Principal Junior Civil Judge, Ongole, as confirmed in A.S. No. 99 of 2013 on the file of the Principal District Judge, Ongole, and the pendency of S.A. No.1038 of 2016 before this Court, were also furnished, thus, in view of pendency of civil disputes between the parties, further action was dropped.

4^th respondent also filed counter-affidavit on similar lines, besides, a specific plea was taken that writ petitioner suppressed dismissal of O.S. No. 228 of 2005 and A.S. No. 99 of 2013 concerning the very same issue, and the matter is now pending in S.A. No.1038 of 2016, thus, pleaded for dismissal of writ petition.

The learned Single Judge, in order to decide the issue in controversy, by order, dated 13.02.2025, appointed an Advocate-Commissioner to verify the existence of 20-foot road on western side of Plot No.20, and construction of house in open space. In pursuance to the same, Advocate-Commissioner, after inspecting the subject site, submitted report, to which 4^th respondent also filed objections. After considering the totality of circumstances and material on record, learned Single Judge opined that the subject matter in S.A. No.1038 of 2016, as well as the one in the writ petition, being one and the same, declined to entertain the prayer made, as the same amounted to pursuing parallel remedies. Further, learned Single Judge also opined that the writ petitioner has wilfully suppressed filing of the civil suit and first appeal, therefore, refrained from exercising discretionary jurisdiction.

Heard Mr.V.V.N. Narayana Rao, learned counsel for appellant; learned Government Pleader for MA & UD appearing for 1^st respondent; Mr.Vankayalapati N Praveen, learned Standing Counsel for respondents 2 and 3; and Mr.M.R.S. Srinivas, learned counsel for 4^th respondent.

Learned counsel for appellant contended that learned Single Judge, on an erroneous assumption, proceeded to hold that the subject matter of controversy in O.S. No.228 of 2005 and the writ petition are one and the same, which is otherwise. To buttress the same, learned counsel drew our attention to the suit schedule property in O.S.No.228 of 2005 and the prayer in the writ petition. It is his contention that the Suit was filed with respect to the encroachment over Plot No.20, whereas the subject matter in the writ petition is with regard to encroachment of 20-foot road, which is on western side of Plot No.20, which are separate and distinct, therefore, it is contended that there was no need or necessity to mention about institution of Suit and litigation thereafter, which has nothing to do with the prayer in the writ petition. Thus, learned Single Judge fell in error in construing that there was suppression of material facts. He further contended that the report of the Town Surveyor, dated 04.08.2014, and the report of Advocate-Commissioner clearly demonstrate that respondents 3 and 4 have constructed house over 20-foot road, thus, learned Single Judge was not justified in not examining aforesaid reports to hold that respondents 3 and 4 have encroached and occupied the road portion, requiring immediate action for demolition and eviction.

Conversely, learned counsel appearing for contesting respondents, while supporting the impugned order of learned Single Judge, contended that the subject matter of Suit not only refers to the alleged occupation of Plot No.20, but also encroachment of road stated to be on western side of Plot No.20, which has been negatived by dismissing O.S. No.228 of 2005, and further, confirmed in A.S.No.99 of 2013, therefore, learned Single Judge rightly refused to entertain the prayer in the writ petition. Learned counsel further submits that the concurrent findings rendered in aforesaid proceedings are in challenge in S.A. No.1038 of 2016, which is pending adjudication before this Court, therefore, appellant cannot maintain the writ petition for deciding the issues that are otherwise sub judice. He also contended that neither the Surveyor report, dated 04.08.2014, nor Advocate-Commissioner's report are in consonance with or based on approved layout plan, they are just rough sketches, which cannot be of any significance. Even in Advocate-Commissioner's report at paragraph 6, it was specifically mentioned that there is no road in existence on western side of Plot No.20, and the measurements of the plots gauged in meters are also not in terms of the layout plan. At any rate, these disputed questions of fact cannot be adjudicated in writ proceedings, thus, he pleaded for dismissal of the appeal.

We have gone through the record and given our anxious consideration to the submissions made above.

The genesis for filing the writ petition apparently is the complaint, dated 04.08.2014, made by the appellant to the District Collector. In the said complaint, the appellant claimed that road existing on western side of his plot has been encroached upon by some unknown person, therefore, sought the intervention of the authorities to remove the encroachment and restore the road. But, whereas in O.S. No.228 of 2005, it was the pleaded case of appellant that 3^rd respondent occupied the road towards western boundary of Plot No.20, and constructed building, further also dug a pit towards eastern side of his house, thus, it was claimed that 3^rd respondent, who was first defendant in the Suit, made constructions way back in March, 2005 on a portion of Plot No.20 as well as 20-foot road.

In that background, the Suit was filed seeking a mandatory injunction directing 3^rd respondent/first defendant in the Suit, to remove the constructions over the schedule property, as shown in the plaint plan, failing which, mandatory injunction was sought against the Municipal Commissioner to implement the provisions of the Municipalities Act and building bye-laws by demolishing the illegal constructions so made. The Suit was finally adjudicated and came to be dismissed by holding that plaintiff failed to prove that there was any encroachment and that the constructions were illegal. The same was further confirmed in appeal vide judgment and decree, dated 10.06.2016, in A.S. No. 99 of 2013. Challenging the concurrent findings rendered by both the Courts, appellant preferred S.A. No.1038 of 2016, which is pending adjudication.

The construction of building spreads over part of Plot No.20 as well as 20-foot road, according to the appellant. Therefore, the said fact was very much material for disclosure, which he failed to do so. When the competent civil Court has already decided the issue by holding that construction of residential house by 3^rd respondent herein was not illegal, question of deciding, once again, the very same issue, even if it were to be encroachment over the 20-foot road portion, which overlaps with the issues raised in the Suit, does not arise and the same can neither be gone into nor decided by the respondent Corporation. Though we find that Town Surveyor report and Advocate-Commissioner report suggest 3^rd respondent’s residential building to be in existence, some portion of the neighbour's property in occupation, which has been seriously disputed by 3^rd respondent, in exercise of either writ jurisdiction or appellate jurisdiction, such disputed questions of fact cannot be decided by conducting a mini trial.

Though learned counsel for appellant tried to differentiate the prayers made in the Suit and the writ petition to be distinct and separate, we are of the view that the same do have correlation, since the building constructed over the disputed property being one and the same. The learned Single Judge rightly held that the appellant not only suppressed the material facts, but also tried to, in a way, overreach the orders passed by the competent Court for achieving the desired results indirectly. Further, the appellant having raised specific plea that 3^rd respondent herein encroached on the road and constructed building while filing Suit in the year 2005, whereas in the complaint, dated 04.08.2024, it is mentioned that the road has been occupied by some unknown person, which is quite contradictory, and we are of the view that there is a specific purpose in doing so.

We, therefore, do not find any infirmity in the findings and conclusions arrived at by the learned Single Judge warranting interference.

Accordingly, writ appeal stands dismissed. No order as to costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed.