SARADA BAI Vs. SHAKUNTALA BAI

JUDGEMENT

(1.) This Civil Revision Petition is filed under Art. 227 of the Constitution of India for declaring the order dated 6-12-1989 made in E.P. No. 3 of 1988 in O.S. No. 1932 of 1985 and the consequential order dated 7-3-1990 made in E.A. No. 23 of 1990 in E.P. No. 3 of 1988 by the IInd Assistant Judge, City Civil Court at Hyderabad regularising the unauthorised constructions in respect of the premises bearing Municipal No. 21-2-142/1 to 4 situated at Charkaman in Hyderabad city, as illegal and unjust and for setting aside the said orders, etc.

(2.) The affidavit in support of this Civil Revision Petition is filed by the 1st petitioner. She states that she is the absolute owner of the premises bearing Municipal No. 21-2-131/7 to 9 situated at Charkaman in Hyderabad and that the said premises are siutated opposite to the premises bearing Municipal No. 21-2-142/1 to 4 on the other side of the road. The 2nd petitioner is the husband of the 1st petitioner and the 3rd petitioner is a tenant of the premises bearing Municipal No. 21-2-131/7 to 9 of the 1st petitioner. The 1st petitioner states that the premises bearing Municipal No. 21-2-142/1 to 4 were purchased by the 1st respondent herein under a registered sale deed dated 10-1-1984. According to her the plan attached to the said sale deed will show that portions of public road on the western and northern sides are included as part of the said premises purchased by the 1st respondent. The said premises of the 1st respondent are in the commercial use zone. The 1st repsondent applied to the Government of Andhra Pradesh for relaxation of the zoning regulations of 1981 applicable to the said building for constructing a first floor. The Government of Andhra Pradesh in G.O. (Rt.) No. 1835, Housing, Municipal Administration and Urban Development Department dated 29-10-1984 passed the following order:-- "Under Regularisation 12 of the Zoning Regulations 1981, the Govt. hereby relax the provisions of Regulations 9-2-1, 10 & 6-1-2 of the said regularisations to the extent indicated below in favour of Smt. Shakimtala for change of roof of the ground floor and construction of first floor in P. No. 21-2-142/1-4 at Qulzar House:-- Z.R. 9-2-1 (i)-- To the full extent of 10'-00" towards Nothern and Western sides for ground and first floor. (ii) To the full extent of 10'-00" towards Eastern side for ground and first floor. (iii) To the full extent of 5'-0" towards Southern side, 10. Coverage -- To the full extent. 6-1-2 -- To allow residential building in Commercial use zone. 2. The relaxation ordered in para (1) above is subject to the following conditions :-- (a) The petitioner should not project balconies towards Western and Northern sides. (b) The petitioner should not disturb the privacy of the neighbours on Eastern and Southern sides by way of opening of ventilations or windows and should produce 'No Objection Certificate' from them. (c) The petitioner should not propose further vertical expansion at any time in future. 3. The Special Officer, Municipal Corporation of Hyderabad is requested to take necessary action accordingly and issue a building permit to the petitioner." Pursuant to the said order of the Government of Andhra Pradesh, the 2nd respondent i.e., the Municipal Corporation of Hyderabad gave building permit No. 61/51 and the 1st respondent constructed the first floor. As tbe 1st respondent was making further constructions, the Municipal Corporation of Hyderabad issued notices to the 1 st respondent under Sections 452, 461 and ultimately under Section 636 of the Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as 'the Act') objecting to the further construction being made by the 1st respondent on the ground that the 1st respondent was raising R.C. columns on the second floor unauthorisedly, and requiring her to remove the same. Thereupon, the 1 st respondent filed Civil Suit O.S. No. 56 of 1985 before the Vacation Judge, City Civil Court, Hyderabad against Municipal Corporation of Hyderabad as sole defendant questioning the said notices and the Vacation Judge directed status quo to be maintained by his order in LA. No. 474 of 1985 dated 20-5-1985. The said suit was subsequently transferred to the file of the IInd Assistant Judge, City Civil Court, Hyderabad and was numbered as O.S. No. 1932 of 1985 and the interim direction to maintain status quo continued. Subsequently the said suit was referred to Lok Adalat and was numbered as Lok Adalat Case No. 542 of 1986 and was settled. In terms of the said settlement, the said suit was decreed on 24-2-1986 in the following terms:--

(3.) The petitioner states that after the 1st respondent filed the said O.S. No. 1932 of 1985, the 2nd and 3rd petitioners herein along with one Dr. Lalita Pershad filed O.S. No. 2333 of 1985 before the Vth Assistant Judge, City Civil Court, Hyderabad alleging that the 1st respondent herein was making constructions in a portion of the public passage on the North and East taking advantage of the plan attached to the sale deed dated 10-1-1984 under which she purchased the said premises bearing Municipal No. 21-2-142/1 to 4 which authorisedly including portions of public road on the Western and Northern sides as part of the premises, and sought for a declaration that the said passages were public roads and that the 1 st respondent herein was not entitled to obstruct the said passages, and for removal of the pials and other structures, and also for a direction to her not to convert the said premises for commercial purpose. The said suit is still pending. The petitioners state that the three plaintiffs in the said O.S. No. 2333 of 1985 i.e. Dr. Lalita Pershad and petitioners 2 and 3 herein, filed I.A. No. 340 of 1985 in O.S. No. 1932 of 1985 to implead themselves as defendants in the said suit filed by the 1st respondent. It is the case of the petitioners that even while the said I.A. was pending, without any notice to the petitioners in the said I.A., the said suit O.S. No. 1932 of 1985 was referred to the Lok Adalat and was settled and decreed in terms of the settlement on 24-2-1986 and that they were not aware of the said decree. They are also not aware of the dismissal of E.P. No. 57 of 1986 of the 1st respondent by the IInd Assistant Judge, City Civil Court on 5-10-1987. The 1st petitioner herein and the said Dr. Lalita Pershad also filed O.S. No. 979 of 1987 on the file of the IInd Assistant Judge, City Civil Court, Hyderabad against the 1st respondent herein and the Commissioner, Municipal Corporation of Hyderabad for a declaration that the 1st respondent herein was not entitled to make constructions contrary to the said G.O. Rt. No. 1835 dated 29-10-1984 or permit No.61/51 dated 28-11-1984 granted by the 2nd respondent herein in favour of the 1st respondent herein for the constructions to be made by the 1st respondent in the said premises. The said suit is also pending. The plaintiffs in O.S. No. 2333 of 1985 also filed I.A. No. 91 of 1991 in the said suit for a direction to restrain the 1st respondent herein, from using her premises in question for commercial purposes. The 1st respondent, after initially filing a counter affidavit in opposition to the said application, also filed an additional affidavit on 2-5-1991 stating that all the constructions made by her including those on the second floor were regularised by the said order dated 6-12-1989 in E.P. No. 3 of 1988. According to the petitioners, they became aware of the said order in E.P. No. 3 of 1988 only after the said additional affidavit was filed by the 1st respondent herein.