JUDGMENT
Markandey Katju, C.J.
1. This writ appeal has been field against the impugned order of the learned single Judge dated 8-12-2004. We have perused the impugned order and have heard the learned Counsel for the parties.
2. It is alleged by the petitioner in his affidavit filed in support: of the writ petition that he is the absolute owner of the properties in S. No. 1758/4, Kancheepuram, which he inherited from his father, and since then he is enjoying the said property. It is alleged that the petitioner is having seven shops in the premises of which five shops are in the occupation of tenants and two are in the occupation of the petitioner, where he is carrying on his bakery and tea stall. The two shops have entrance facing west towards the Maduranthagam Bus Stand Road. The compound wall of the bus stand was put up only up to the place where the petitioner’s shops are situated, and the petitioner was having entrance facing west side and on the Bus Stand Road and even on the north side where Maduranthottam Road is situated.
3. It is further alleged that in the year 1998, the respondent attempted to put up constructions and interfere with the access of the shop of the petitioner on the northern side, but the petitioner’s father filed a suit in O.S. No. 989/1988 which was decreed on 21-8-1997 and the respondent was restrained from interfering with the rights of the plaintiff.
4. It is alleged in paragraph 6 of the petitioner’s affidavit that to the petitioner’s shock and surprise the respondent Kancheepuram Municipality issued a notice on 16-10-2004 alleging that the writ petitioner had demolished the compound wall on the western side of his shop and had created an entrance to the shops, and hence he has to construct the same immediately within 24 hours failing which suitable action will be initiated. It is alleged that on receiving that notice the petitioner sent a reply stating that he obtained a decree declaring that he has the right to access to his suit property, and now there is no compound wall as stated, and therefore no action need be initiated. It is alleged that in spite of that reply the authorities of the Kancheepuram Municipality went to the premises in question and tried to put up a wall blocking the western side entrance of the petitioner’s shop. It is alleged that the petitioner made a police complaint, but despite that the respondent-municipality constructed a wall in the disputed premises on 18-10-2004.
5. A counter-affidavit was filed by the Commissioner, Kancheepuram Municipality and we have perused the same. In paragraph 3 of the counter-affidavit it is stated that it is not correct to say that the two shops have entrance facing west towards the Madhuranthagam Bus Stand Road. There is no such road in that place. In front of the said shops, the 8 feet high compound wall is situated which was constructed by the Municipality. It is alleged that the area near the compound on the eastern side belongs to the Municipality in which the bus stand is functioning.
6. In paragraph 4 of the counter affidavit it is stated that in front of the shops of the petitioner, the eastern side compound wall of the bus stand is located. In paragraph 5 of the counter-affidavit it is stated that it is not correct that in all sides of the petitioner’s property approach road is available. It is alleged that in the notice dated 16-10-2004, the writ petitioner was directed to construct the eastern side compound wall which was demolished by him. There is no right in the petitioner to use the western side since the land being S. No. 1758/3 belongs to the Municipality. It is further alleged that hence the averment of the petitioner that there is no compound wall on the western side is absolutely incorrect. It is alleged that the petitioner himself demolished the compound wall which was 22 feet in breadth and 41/2 feet in height.
7. In paragraph 6 of the counter-affidavit it is alleged that by notice dated 16-10-2004, petitioner was only directed to construct the 22 x 4.6″ compound wall within 24 hours which he failed to do so. It is alleged that hence the Municipality constructed the same on 18-10-2004. It is alleged that no other new compound wall was constructed by the Municipality. It is alleged that the petitioner demolished the compound wall in violation of Section 362 of the Tamil Nadu District Municipalities Act. It is further alleged that only to protect the propertie of the Municipality the alleged compound wall was constructed by the Municipality on 18-10-2004, and therefore there is no arbitrariness in demolishing the compound wall.
8. It is evident from the facts narrated above that there are seriously disputed questions of fact, and hence the matter really needs to be decided in a civil suit by the civil Court. Writ proceedings are not appropriate for this. In fact, this is what the learned single Judge said in the impugned judgment in paragraph 5, but then the learned single Judge has gone on to pass directions which in our opinion were uncalled for. When the learned single Judge held that the matter was a civil dispute and must be decided by a civil Court in a Civil Suit, there was no occasion to further direct in paragraph 8 of the impugned judgment that permission is given to the petitioner to demolish the disputed wall. In our opinion, the relief claimed by the petitioner really relates to his claim for easementary rights viz. his claim for access to the shops. In our opinion, such a claim for easementary rights can only be adjudicated in a civil suit and not by a writ petition. Hence, in our opinion, the writ petition should not have been entertained at all and it. should have been dismissed on the ground of availability of alternative remedy ,by way of a civil suit.
9. In view of the above, we set aside the impugned judgment to the extent that it permits the petitioner to demolish the compound wall in question. We substitute the impugned judgment of the learned single Judge with a direction that the writ petition is dismissed on the ground of alternative remedy by way of a civil suit, (which we are informed has already been filed). The writ petitioner can take all factual and legal pleas as advised in the said civil suit before the civil Court. The civil Court will decide the suit uninfluenced by the observations made by the learned single Judge in the writ petition.
10. In the result, this writ appeal is allowed. No costs. Consequently, connected W.A. M.P. No. 546 of 2005 is closed.