APHC010127692023

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3470]

MONDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TWENTY FOUR

PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

CIVIL MISCELLANEOUS APPEAL NO: 104/2023

Between:

M.venkataramana Reddy ...APPELLANT

AND

Gajula Satyanarayana and Others ...RESPONDENT(S)

Counsel for the Appellant: 1.V SESHA KUMARI

Counsel for the Respondent(S): 1.V ESWARAIAH CHOWDARY

The Court made the following:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI & THE HON'BL SRI JUSTICE NYAPATHY VIJAY

CIVIL MISCELLANEOUS APPEAL No. 104 of 2023

JUDGMENT: (per Hon'ble Sri Justice Ravi Nath Tilhari)

Heard Sri C. Raghu, learned senior counsel, assisted by Ms. V. Sesha Kumar, learned counsel for the appellant, and Sri P. Veera Reddy, learned senior advocate, assisted by Sri V. Eswaraiah Chowdary, learned counsel for respondents No.1 to 3.

2. This civil miscellaneous appeal has been filed by the plaintiff in O.S.No.102 of 2022 on the file of the X Additional District Judge, Tirupati challenging the Order dated 27.02.2023 passed in I.A.No.243 of 2022, which application filed by the plaintiff for temporary injunction has been rejected.

3. Learned counsel for the appellant submits that the rejection of temporary injunction is without recording findings on the necessary points, viz., prima facie case, balance of convenience and causing irreparable loss, which are all in favour of the plaintiff. He submits that previously the present respondents No.2 and 3 filed W.P.No.15418 of 2022 to declare the action of the respondents No.2 & 3 therein i.e., Tirupati Municipal Corporation and the Assistant City Planner, Tirupati Municipal Corporation in interfering with the proposed construction being raised by the present respondents No.2 & 3 to the extent specified in that petition with respect to the property in suit, in spite of there being building permit. In the said writ petition, interim order dated 26.05.2022 was passed, which reads as under:

"This writ petition is filed to declare the action of the respondents 2 and 3 in interfering with the proposed constructions made by the petitioners in an extent of 229.22 sq.yards in Plot No.28 in Survey No.64/2 of No.9 of Akkarampalli village accounts, Ward No.22 of Gollavanigunta extension residential area, Tirupati Urban Mandal, Tirupati City, Chittoor District in view of building permit No.1012/0219/B/TIR/G/2022 dated 22.04.2022 at the instance of the 4th respondent herein without having any cogent reasons as illegal and arbitrary.

Learned counsel for the petitioner in elaboration to what has been stated in the affidavit, has contended that the petitioner has applied for the building permission. Accordingly the 2nd respondent has given permission vide permission No.1012/0219/B/TIR/G/2022 dated 22.04.2022 which is placed on record as Ex.P1.

After affording such permission, the petitioner commenced the construction only by digging pits and to show the same, he filed photographs as Ex.P6. Immediately, after digging the pits, the respondent authorities are interfering and obstructing the petitioners' construction without any reasons and without any prior notice.

Aggrieved by the same, the present writ petition is filed.

On the other hand, Sri Suresh Kumar Reddy Kalava, learned Standing Counsel for the 2nd respondent seeks time for getting instructions.

Learned counsel for the petitioner contended that in the meantime the respondent authorities may be directed to allow the petitioner to proceed with the construction.

Taking into consideration the facts and circumstances of the case, the respondents are directed to permit the petitioner to proceed with the construction as per buildings plan and if any deviations are found, the respondents are at liberty to take action as per law."

4. The said writ petition was later on got dismissed as withdrawn by Order dated 07.11.2022, the order of which reads as under:

"No representation for the petitioners.

2. Learned counsel for the petitioners, filed a memo for withdrawal of the Writ Petition, on behalf of the petitioners, vie USR No.80577 of 2022 which is on record.

3. Learned counsel representing 4th respondent is present.

4. Learned Standing Counsel representing 2nd and 3rd respondents is also present. They have no objection, if the petition is being withdrawn on request of the petitioners.

5. Recording the same, the petition is dismissed as withdrawn.

As a sequel, miscellaneous petitions, if any, pending in this petition shall stand closed."

5. Learned counsel for the appellant submits that the fact of withdrawal of the writ petition was brought to the notice of the learned trial Court by filing affidavit, but the same was not considered. The effect of dismissal of the writ petition as withdrawn on the interim order, and the act of building constructions, taken by the present respondents 2 and 3, pursuant to the interim order, was also not considered by the learned trial Court. On the contrary, the learned trial Court being impressed by grant of interim order in the earlier writ petition, rejected the application for temporary injunction, also observing that "……Therefore, there was an Order of Hon'ble High Court of A.P.in favour of R2 and R3 for making constructions. As such constructions cannot be treated as illegal constructions when there was an Order of Hon'ble High Court of A.P….".

6. Sri P. Veera Reddy, learned senior advocate, submits that the learned trial Court though has not recorded the findings on prima facie case, balance of convenience and irreparable loss, but from reading of the judgment, it can be inferred that those considerations were there and were against the plaintiff/appellant and for that reason, the application was dismissed. He further submits that an advocate-commissioner was appointed by Order dated 20.03.2023 in the present case and also submitted the report, from which it is reflected that most of the work has been completed.

7. In the present Appeal, on 20.03.2023, a coordinate Bench passed the following Order:

"After hearing the learned counsel for the appellant, this Court notices that of all the points made, one issue deserves consideration. The trial Court relied upon the order passed in W.P.No.15418 of 2022 to hold that constructions being made are not illegal constructions, since there is an order by this Court. However in the affidavit filed in support of the interlocutory application, it is clearly avoid that this writ petition has been withdrawn but the construction was continued. This aspect is not noticed by the Trial Court. The suit also contains a prayer for mandatory injunction for removal of the construction already made.

Learned counsel for the appellant argues that construction is not completed and that when the suit is filed, construction was at a preliminary stage.

To ascertain this issue, this court is of the opinion that an Advocate Commissioner is to be appointed to inspect the suit schedule property and also the current stage of construction.

Sri P. Sai Surya Teja, learned Advocate is appointed as an advocate commissioner and his fee is fixed tentatively at Rs.20,000/-. He is directed to inspect the suit schedule property and file a detailed report along with

photographs. The inspection should be confined to the constructions that are made in the plaint schedule property.

List on 31.03.2023.

In the meanwhile, learned counsel for the appellant is permitted to take out personal notice to respondent Nos.1 to 3 by RPAD and file proof of service in the Registry.

Advocate commissioner is also given liberty to serve notice on respondent Nos.1 to 3 before execution of warrant."

8. Order dated 13.04.2023, passed in I.A.No.1 of 2023 in the present appeal, reads as under:

"Sri V.Eswaraiah Chowdary, learned counsel for the respondents, seeks time to file counter.

In view of Advocate Commissioner's report, it shows that the construction is progress substantially, there shall be an interim order as prayed for restraining the respondents, their men and agents from in any way proceeding with further construction in the schedule property.

Learned counsel for the respondents is permitted to file his objections, if he so desires, on the Advocate Commissioner report.

List the matter on 26.04.2023, for counter."

9. Advocate Commissioner submitted the report which is on record.

10. Having raised the aforesaid submissions, during arguments, learned counsel for the appellant submits that by giving the direction to the learned trial Court to expeditiously decide the suit and till such decision, the respondents may not alienate the subject property, the writ petition may be disposed of finally.

11. Sri P. Veera Reddy, learned senior counsel, appearing for the respondents 2 and 3 and also Sri V.Eswaraih Chowdary, learned counsel for the 1 st respondent as well, submit that they have no objection to such prayer being made by the learned senior counsel Sri C.Raghu, for the appellant. However, they further submit that pursuant to the interim order passed in the writ petition No.15418 of 2022, almost 90% of work has already been completed by the respondents 2 & 3 herein. Only 10% remains, and they may be permitted to complete the remaining work without raising any further constructions, and at their own risk, subject to the decision in the pending suit. They submit that the respondents shall not alienate the subject property during the pendency of the suit. They submit that the suit was filed after filing of the previous writ petition No.15418 of 2022 in which the interim order was granted permitting the respondents 2 & 3 herein to carry out construction work and later on the writ petition was dismissed as withdrawn

12. Sri V. Eswaraiah Chowdary, learned counsel, adopts the submissions of Sri P. Veera Reddy, for the 1st respondent as well.

13. Learned counsel for the appellant submits that since the respondents have already completed most of the work, the appellant has no objection, if they are permitted to complete the finishing work without raising any further construction in the appurtenant area, but subject to the outcome of the suit, which is also for mandatory injunction for demolition.

14. In view of the submissions raised as in paragraphs-10, 11, 12 & 13, supra, there is no question to enter into the merits of the other submissions.

15. With the consent of the learned counsels for the parties, this civil miscellaneous appeal is being disposed of, finally, in view the consensus arrived during arguments in the following terms:

• i. The learned trial Court shall decide the suit O.S.No.102 of 2022, pending on the file of the X Additional District Judge, Tirupati, as expeditiously as possible, preferably, within a period of 10 (ten) months from the date, the copy of this judgment is placed before it;
• ii. The respondents shall not alienate the subject property till disposal of the suit;
• iii. The respondents shall also not raise any further construction over the constructed area nor in the appurtenant area;
• iv. The respondents are at liberty to complete the remaining finishing work at their own risk and also subject to the result of the pending suit;
• v. The constructions raised up till now under the interim order dated 26.05.2022 passed in W.P.No.15418 of 2022 or the work to be completed now, which is at the liberty of the respondents, as aforesaid, shall also be subject to conditions of the building permit and the relevant building rules;
• 16. We clarify that;
  • a) merely because the respondents were permitted to raise construction, vide interim order dated 26.05.2022 in

W.P.No.15418 of 2022 or have been granted liberty to complete the finishing work, it shall not be taken neither by the trial Court nor by the concerned municipal authorities, that any legality has been attached to such construction or finishing work by this Court, if it is otherwise not legal. The findings/observations of the learned trial Court while rejecting the application "……therefore, there was an order of the Hon'ble High Court of A.P. in favour of the respondents 2 & 3 for making constructions. As such constrtuctions cannot be treated as illegal constructions when there was an Order of Hon'ble High Court of A.P." are struck of not being the correct understanding of the interim order of this Court. The same shall not be considered while deciding the suit finally. The suit shall be decided independently, on its own merit.

• b) The respondents shall not alienate/transfer the subject property by any mode of transfer, nor under agreement of sale or/and power of attorney;
• c) The respondents shall not be entitled to claim any equity because of the constructions raised pursuant to the order passed in W.P.No.15418 of 2022 or liberty granted to complete the finishing work.

17. We further provide for the interest of the general public that the respondents shall at the site fix notice at a conspicuous place, to the effect that the property is subject to litigation in O.S.No.102 of 2022, pending on the file of

the X Additional District Judge, Tirupati, and if in some other case as well, giving particulars of that case as well.

18. With the aforesaid observations, the Civil Miscellaneous Appeal stands disposed of. No order as to costs.

Pending miscellaneous petitions, if any, shall stand closed in consequence.

_______________________ RAVI NATH TILHARI, J

_______________________

NYAPATHY VIJAY, J

Date: 22.07.2024 Dsr