High Court · 2011

Order

Heard Sri P.Sridhar Reddy, learned counsel for the petitioner in both the Writ Petitions, learned Government Pleader for Municipal Administration for respondents 1 and 2 in W.P.No.27412 of 2007, Sri B. Hanumantha Rao, learned Standing Counsel for respondent No.1 in W.P.No.23070 of 2005 (respondent No.3 in W.P.No.27412 of 2007), Sri P.Gangaiah Naidu, learned senior counsel instructed by Sri N. Bharath Babu for respondents in W.P.No.27412 of 2007; Sri P. Ganga Rami Reddy for respondent No.3 and Sri Nivarthi M.S., respondents 4 to 8 in W.P.No.23070 of 2005.

2. Both the writ petitions are being disposed of with the consent of all the learned counsel.

3. M/s. Dasari Enterprises, a registered partnership firm, rep. by its partner Dasari Nageswara Rao is the petitioner in both the writ petitions. Respondents 4 to 8 in W.P.No.23070 of 2005 are the respondents 5 to 9 in W.P.No.27412 of 2007.

4. In W.P.No.23070 of 2005 the petitioner has challenged the inaction of the 1st respondent therein i.e., Commissioner, Nellore Municipal Corporation, Nellore in stopping the alleged illegal construction being raised by the 3rd respondent therein viz.,

Smt.Kamalamma on the land situate in Sy.No.CAS No.211 (211/1 and 211/2) in Venkataramapuram area of Nellore.

5. In W.P.No.27412 of 2007 the petitioner has challenged the action of the Municipal Corporation of Nellore in allowing the respondents 5 to 9 in raising unauthorized commercial complex on the land in Sy.No.CAS No.211/1A, 211/1B, 211/1 and 211/2 situate in Venkataramapuram area of Nellore and to declare the orders in I.A.No.14 of 2006 in O.S.No.27 of 2006 and I.A.No.88 of 2006 in O.S.No.156 of 2006 on the file of the III Additional Junior Civil Judge, Nellore as contrary to the directions of this Court and consequently to direct the Nellore Municipality to demolish the said unauthorized construction in order to maintain public road on the said land.

6. Since the relief sought for in the W.P.No.23070 of 2005 becomes insignificant in view of the wider reliefs sought for in W.P.No.27412 of 2007, which in effect covers the relief in W.P.No.23070 of 2005, the learned counsel for the petitioner would fairly submit that the W.P.No.23070 of 2005 is redundant and the same need not be considered. In view of the said submission, the parties as arrayed in this Writ Petition No.27412 of 2007 and the facts stated therein are taken into consideration.

7. Initially the relief sought for in W.P.No.27412 of 2007 is as follows : “For the reasons stated in the above accompanying affidavit, the petitioner herein prays that this Hon’ble Court may be pleased to issue an order, writ or direction more particularly one in the nature of a Writ of Mandamus declaring the action of the 3rd respondent in allowing respondents 5 to 9 in raising an illegal and unauthorized commercial complex bearing Door Nos.476/1 to 5 situated in Venkataramapuram, Nellore City comprised in C.A.S.No.211/1A, 211/1B, 211/1 and 211/2, which is also demarcated as Road BB in the Town Planning Scheme published in G.O.Ms.No.637, Municipal Administration, dated 28-11-1974 and declared as a public road by the learned Senior Civil Judge, Nellore in O.S.No.240 of 1996 dated 26-11-1999, without approval of building plans and assessing the same to the property tax and assigning a door number is contrary to the provisions of Hyderabad Municipal Corporation Act, 1955 and the Zonal Regulations and the inaction of the 3rd respondent in causing demolition of the unauthorised structure as illegal, arbitrary, unjust, violative of A.P. Hyderabad Municipal Corporation Act, 1955, A.P. Town Planning Act and further declare the orders passed by the Court of the III Additional Junior Civil Judge, Nellore in I.A.No.14 of 2006 in O.S.No.27 of 2006 and I.A.No.88 of 2006 in O.S.No.156 of 2006 as contrary to the directions issued by the Hon’ble Court and consequently quash both the orders as collusive and violative of the orders of the Hon’ble Court by issuing appropriate writ and consequently to direct the 3rd respondent to demolish the unauthorized building bearing Door Nos.476/1 to 5 situated at Venkataramapuram, Nellore City comprised in C.A.S.No.211/1A, 211/1B, 211/1 and 211/2 and maintain the public road therein, and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

8. The petitioner filed W.P.M.P.No.20973 of 2009 seeking amendment of the said relief by deleting the following : “…and further declare the orders passed by the Court of the III Additional Junior Civil Judge, Nellore in I.A.No.14 of 2006 in O.S.No.27 of 2006 and I.A.No.88 of 2006 in O.S.No.156 of 2006 as contrary to the directions issued by the Hon’ble Court and consequently quash both the orders as collusive and violative of the orders of the Hon’ble Court by issuing appropriate writ….”

9. Since the said petition has been ordered the following relief remains for consideration: “For the reasons stated in the above accompanying affidavit, the petitioner herein prays that this Hon’ble Court may be pleased to issue an order, writ or direction more particularly one in the nature of a Writ of Mandamus declaring the action of the 3rd respondent in allowing respondents 5 to 9 in raising an illegal and unauthorized commercial complex bearing Door Nos.476/1 to 5 situated in Venkataramapuram, Nellore City comprised in C.A.s.No.211/1A, 211/1B, 211/1 and 211/2, which is also demarcated as Road BB in the Town Planning Scheme published in G.O.Ms.No.637, Municipal Administration, dated 28-11-1974 and declared as a public road by the learned Senior Civil Judge, Nellore in O.S.No.240 of 1996 dated 26-11-1999, without approval of building plans and assessing the same to the property tax and assigning a door number is contrary to the provisions of Hyderabad Municipal Corporation Act, 1955 and the Zonal Regulations and the inaction of the 3rd respondent in causing demolition of the unauthorised structure as illegal, arbitrary, unjust, violative of A.P. Hyderabad Municipal Corporation Act, 1955, A.P. Town Planning Act and consequently to direct the 3rd respondent to demolish the unauthorized Building bearing Door Nos.476/1 to 5 situated at Venkataramapuram, Nellore City comprised in C.A.S.No.211/1A, 211/1B, 211/1 and 211/2 and maintain the public road therein, and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

10. The petitioner claims to be the absolute owner and possessor of a house constructed on an extent of 480 square yards comprised in C.A.S.No.211/1, 211/2 of Nellore, Bit-I, situate in Venkataramapuram area of Nellore. It is the case of the petitioner that there is a public street on an extent of Ac.0.23 cents comprised in Sy.Nos.211/1A, 211/1B and 211/2 and the same was notified in the Town Planning Scheme approved in G.O.Ms.No.637, Municipal Administration, dated 28-11-1974 published in the gazette dated 10-04-1975. The same is acknowledged by the Commissioner, Nellore Municipality while addressing a letter dated 26-07-1986 to the Director of Town and Country Planning, A.P. pursuant to a representation of one, Smt.Raghavamma. According to the petitioner, there should be no construction on the land intended for use as a street. One Pokuru Subbarami Reddy, husband of the 12th respondent who owned Ac.0.64 cents, prepared a residential lay out on an extent of Ac.0.50 cents and left Ac.0.14 cents for roads. Similarly, one, Majjiga Krishna Reddy who owned Ac.0.77 cents, prepared lay out on an extent of Ac.0.50 cents and left Ac.0.27 cents for roads. The petitioner is the purchaser of a house plot under a registered sale deed dated 27-05-1988 from the vendees of the husband of the 12th respondent. Respondent No.12 filed a suit O.S.No.31 of 1986 in the Court of the Senior Civil Judge, Nellore against the predecessors of the petitioners and others claiming the right over the road portion and recovery of possession of Ac.0.14 cents. The petitioner filed a suit O.S.No.81 of 1993 in the Court of the Junior Civil Judge, Nellore (later transferred to the Court of Senior Civil Judge, Nellore and renumbered as O.S.No.240 of 1996) against the respondents 12 and 13 and the father of the 13th respondent and the municipality for a declaration that an extent of Ac.0.23 cents of land as a public road and for permanent injunction. A common judgment was rendered, dismissing O.S.No.31 of 1986 filed by the 12th respondent and decreeing O.S.No.240 of 1996 filed by the petitioner. Insofar as the municipality, relief sought against it not to grant permission or license for making any construction on the said road was dismissed on the ground that the declaration of the land as public road would suffice. It is stated that the 12th and 13th respondents filed appeals against the said judgments and decrees in A.S.No.20 of 2000, A.S.No.13 of 2000 and A.S.No.2251 of 2000 and the same are pending in this Court. It is further case of the petitioner that during 2005 the mother of the 13th respondent started digging pits for the purpose of raising a construction on the land meant for public street and as the 3rd respondent-municipal corporation failed to take any action to prevent construction, he filed Writ Petition No.23070 of 2005. It is stated that an interim order dated 01-12-2005 was passed therein directing the Municipal Corporation to verify whether constructions were being proceeded without obtaining the permission and if no permission had been obtained, to take necessary steps in accordance with law. In the meanwhile as the construction was completed, the notice was issued under Section 452, 461 and 636 of Hyderabad Municipal Corporation Act to remove the construction. The respondents 5 and 6 filed a suit O.S.No.156 of 2006 in the Court of the Junior Civil Judge, Nellore against the 3rd respondent-Municipal Corporation for permanent injunction restraining the demolition of the plaint schedule property and obtained temporary injunction by orders dated 31-03-2006 in I.A.No.88 of 2006. Similarly, respondents 7 and 8 also filed a separate suit O.S.No.27 of 2006 and obtained temporary injunction in I.A.No.14 of 2006, dated 21-03-2006. It is stated that the respondents 5, 10 and 11 purchased some more land from the 12th respondent and are taking steps to raise construction on the said land. It is also stated that the 10th respondent has filed a separate suit O.S.No.1007 of 2007 for permanent injunction against 3rd party namely, Vangara Bhaskar.

11. Urging that the construction undertaken by the respondents on the land which is meant for Public Street as illegal, the petitioner has filed this Writ Petition.

12. Respondents 5 to 11 filed a common counter. The counter states that the proposal approved in respect of the town planning scheme did not materialize and the disputed land is not vested with the municipality. The land proposed for road by acquiring was not done due to technical reasons and the road was shifted towards Sarvepalli channel bund. The petitioner is trying to project that the land in question is meant for public road and that building has come up without obtaining the approved plans, which is misleading. These respondents being the owners of plots made application seeking permission for construction and as the applications were not rejected, they undertook construction as per the deeming provisions of the Act. These respondents approached the civil Court to protect their rights and the civil Court by taking into consideration the entire material has granted temporary injunction and the same is in force. It is stated that inasmuch as the said orders granted by the civil Court are in force and the suits are still pending, the petitioner cannot maintain the writ petition which if entertained would defeat the suits.

13. I have considered the respective contentions and perused the material.

14. As seen from the relief sought for in the Writ Petition the petitioner is seeking demolition of the constructions undertaken by the respondents 5 to 9 alleging that the constructions are made on a public street without obtaining construction permission the 3rd respondent-Corporation. The petitioner relies on the Town Planning Scheme approved in G.O.Ms.No.637, dated 28-11-1974 and also the findings in suit O.S.No.31 of 1986 and O.S.No.240 of 1996 to show that the land in question is meant for public street.

15. Per contra, it is the specific case of the said respondents that the land in question is not public street and the said town planning scheme has not been given effect to by acquiring the said land. Even the said town planning scheme contains a condition that any land in the area required for the purpose of the scheme may be acquired by purchase or otherwise at any time subject to the provisions of the act and without prejudice to the interest of the scheme. It is their contention that the land in question being a private property, the scheme cannot be implemented without acquiring the same and such acquisition has not taken place till date. As such they are entitled to use the land as if it was not acquired. It is their further case that the said scheme which was approved in the year 1974 was subsequently dropped and the same was informed to the land owners vide letter dated 17-11-1975 and again in the year 1991. The respondents are not parties to O.S.No.240 of 1996 and therefore any finding given therein is not binding on them. In any event findings in the said suit have not become final as appeal filed against the judgment is still pending. The respondents made applications seeking permission for construction and the same were not rejected within the stipulated time thereby the construction was undertaken under the deemed permission as per Section 437 of the Hyderabad Municipal Corporation Act. The respondents would further urge that at any rate the relief sought for in the writ petition cannot be granted inasmuch as the matter is seized by the civil Court which has granted temporary injunction and the writ is not maintainable under Article 226 of the Constitution.

16. It is therefore evident that there are serious disputed questions of fact as to whether the scheme approved in G.O.Ms.No.637, Municipal Administration, dated 28-11-1974 is still in force or whether it has been abandoned, and if so its effect on the private property and whether the constructions are legally undertaken are all the questions which will have to be ascertained by adducing evidence in the suits.

17. The petitioner seeks to rely on a judgment of the Apex Court in Sri K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and ors.[1] It was a case where municipal authorities granted permission for construction of a cinema theater in a residential locality which was not permissible under the town planning scheme.

18. In another judgment, relied upon by the petitioner, PT. Chetram Vashist (dead) by L.Rs. v. Municipal Corporation of Delhi [2] the Apex Court was considering a sanction of a lay out on certain conditions inter alia to transfer the sites reserved for schools and apartments to the municipal corporation free of cost. In that case the trial Court held the condition to transfer the site free of cost as invalid. The High Court however held that the sites were held in trust for public benefit, therefore in effect it was a transfer of residuary interest and right of management which action did not attract Article 31. The Apex Court while disagreeing with the High Court held that the right to manage as a local body is not the same thing as the claim to transfer of the property to itself. The Apex Court having regard to the facts therein in order to protect the interest of the residents modified orders of the High Court, observing inter alia that it was left open to the municipal corporation to get the land transferred after paying the market fee.

19. In Advocate General v. State of A.P. rep. by its Principal Secretary to Government and ors. [3] this Court observed that when a person constructs a building without permission or deviation from the sanctioned plant it is the duty of the Commissioner to initiate action for demolition and that the civil Courts in entertaining suits for declaration or injunction must act with great circumspection and restrain keeping in view the relevant provisions of law.

20. The principles covered in the said judgments are not in controversy which have to be applied depending upon the facts of each case. But in the instant case, in the backdrop of the stand taken by the contesting respondents and the 3rd respondent-municipal corporation as well, that the scheme has been abandoned and there are no acquisition proceedings which facts have to be ascertained in the suit. These issues may have to be gone into in the suits.

21. As contended by the contesting respondents in Swetambar Sthanakwasi Jain Samiti and anr. V. The Alleged Committee of Management, Sr. R.J.I. College, Agra and ors.[4] the Apex Court observed that though the jurisdiction of the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending before two parties the interim and miscellaneous orders passed by the Trial Court – against which the remedy of appeal or revision is available – cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil Court has jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/miscellaneous orders of the civil Court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum.

22. In Ghan Shyam Das Gupta v. Anant Kumar Sinha [5] the Apex Court observed that the remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil Court or to deny defences legitimately open in such actions.

23. The lapse of time of over 36 years ever since the scheme is said to have been published and the non-formation of the road so far prima facie may give credence to the contention that the scheme has been given up. The counsel for the petitioner would try to contend that any such proposal to abandon the scheme should again be published in the gazette by following the required procedure. The 3rd respondent- corporation however in its counter-affidavit has categorically stated that even though there was a proposal of forming a road, acquisition proposals were not done due to technical reasons and that the road alignment was changed and shifted towards Sarvepalli Channel Bund by deleting the proposed road. These are all the disputed facts which are significant and required to be ascertained on the basis of evidence. Admittedly, the contesting respondents have already approached the civil Court and obtained temporary injunction against the 3rd Respondent-Corporation. There is no challenge to the said orders in this writ petition. As noted above, even though the petitioners initially challenged the orders of the civil Court granting temporary injunction, the said relief was got deleted by seeking amendment of the prayer on the ground that they were advised to question the said orders before an appropriate forum. That being so, seeking demolition in this Writ Petition is inappropriate. Thus, in view of the disputed questions of fact and more importantly as the orders granting temporary injunction by the civil Court are in force, this Court is of the opinion that interference in the Writ Petition under Article 226 of the Constitution would not only be inappropriate but also would have the effect of pre-empting the remedy of suit availed by the contesting respondents in the civil Court rendering the suits nugatory. The petitioner is not precluded from approaching the civil Court and contest the suits. For foregoing reasons and facts and circumstances of the case, no relief can be granted to the petitioner in the writ petitions.

24. The Writ Petitions are accordingly dismissed. No costs. ________________ NOUSHAD ALI, J. June, 2011. Skmr/Js.