OM PRAKASH GUPTA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This Writ Petition is filed challenging the Permit No. 405 of 66 dated 21-11-1992 in File No. 142/2/21/92/1 to 4 issued by the 2nd respondent Commissioner, Municipal Corporation of Hyderabad in favour of the 3rd respondent as illegal, invalid and contrary to law.

(2.) The case contains voluminous facts. The 3rd respondent is the owner of house bearing Municipal No. 21-2-142/1 to 4 having an extent of 102 Square Yards situated at Charkaman, Hyderabad. She applied for permission to construct a house by relaxing the rules. The Government issued G.O.Rt. No. 1835 dated 29-10-1984 relaxing the rules in favour of 3rd respondent. However, the 3rd respondent abusing the permission granted to her had constructed three floors without any prior permission from the Municipal Corporation. Thereupon, the Municipal Corporation issued notices under Section 452 of the Hyderabad Municipal Corporation Act (for short 'H.M.C. Act') on 11-7-1988 and under Section 636 on 14-7-1988. Against the final notice under Section 636, the 3rd respondent filed a suit in O.S.No. 932 of 1985 on the file of II Assistant Judge, City Civil Court, Hyderabad and obtained status quo orders. Under the garb of the status quo orders, the 3rd respondent made construction of ground floor and two upper floors by encroaching the ground area to the extent of 30 Square yards belonging to the Municipal Corporation. On account of the encroachment and illegal construction, the petitioners being the neighbours are put to serious inconvenience and traffic flow has been obstructed considerably. It is the case of the petitioners that when the 3rd respondent was constructing the house in violation of the sanction orders of the Municipal Corporation, they filed a Writ Petition before this Court and it was disposed of with a direction that the 3rd respondent shall construct the building in accordance with the Government orders and sanction plan of the Corporation. But, however, again violation was resorted to by the 3rd respondent. Therefore, the petitioner gave a complaint to the Corporation on 8-5-1991, upon which, the Corporation had issued a demolition notice on 18-5-1991. Against the said demolition notice, the 3rd respondent filed W.P.No. 10021 of 1991. In the meanwhile, the petitioners came to know that the 3rd respondent filed a suit O.S.No. 1932 of 1985 and the same was decreed. Subsequently, she filed E.P.No. 3 of 1988 for execution of the decree. Aggrieved by the proceedings in the execution petition, petitioners filed C.R.P.No. 1773 of 1991. While admitting the C.R.P., the proceedings in the execution Petition were suspended by this Court and finally the C.R.P.No. 1773 of 1991 was heard and by orders dated 16-6-1992 it was allowed. Subsequently, the 3rd respondent had withdrawn the Writ Petition. It is the case of the petitioners that, in the meanwhile, the 3rd respondent made constructions in gross violation of the permission and suppressing the previous history of the case, she made an application for regularisation of the constructions made by her, as per G.O.Ms.No. 87 of 1992 and it appears that the regularisation was granted by the Municipal Corporation in Permit No. 405/66 dated 21-11-1992 on the basis of the relaxation granted by the Government in G.O.Ms.No. 87, M.A., dated 12-2-1992. It is the case of the petitioners that the said permission is in gross violation of the orders of this Court passed in C.R.P.No. 1773 of 1991 dated 16-6-1992. That apart, the 3rd respondent has played fraud on the authorities by encroaching extra land over and above the land on which she held ownership rights. Therefore, the petitioners prayed for quashing the order in Permit No. 405/66 dated 21-11-1992. Subsequently, 4th petitioner was impleaded as he was also interested in defending the case of petitioners 1 to 3.

(3.) Counter affidavit has been filed on behalf of the 3rd respondent. It is stated that the petitioners 1 to 3 are close relations residing near her house and it is only to wreak vengeance, the present Writ Petition has been filed with false allegations. It is the case of the 3rd respondent that she purchased the house for a valid consideration. She obtained permission for construction of the house in Permit No. 61/51 dated 28-11-1984 from the 2nd respondent and constructed ground and first floors. The outer measurements of the said premises as per the plan enclosed to the sale deed and outer measurements of the ground and first floors constructed by her were as per the permission only. There was no encroachment on Western side of Pandarinath Mandir lane. It is the case of the 3rd respondent that the 1st petitioner demanded money for defending himself in the criminal cases filed against him and since she refused to pay the money, they filed the present case. In the year 1992, the Government issued G.O.Ms.No. 87 dated 12-2-1992 permitting regularisation of illegal constructions on payment of compounding fee. In pursuance of the said G.O., an application was made by the 3rd respondent on 1-7-1992 and the same was granted in Permit No. 405/66 dated 21-11-1992. The petitioners also filed O.S.No. 2333 of 1995 on the file of V Assistant Judge, City Civil Court, Hyderabad against the respondents 2 and 3 seeking declaration that Permit No. 405/66 issued by the Municipal Corporation was illegal and void. It is a comprehensive suit. Therefore, for similar relief, the petitioners cannot file a Writ Petition before this Court. The petitioners cannot be permitted to prosecute parallel proceedings, one before the Civil Court and the other before this Court under Article 226 of the Constitution of India. It is also denied by the 3rd respondent that she constructed three floors without any permission. It is her case that she constructed the three floors in accordance with the sanctioned plan issued to her. The 3rd respondent further stated that 2nd and 3rd floors were constructed only after duly submitting the plans and paying the requisite fees to the Corporation and after the expiry of the statutory period for rejection of plans and after issuing notice to the Corporation. She filed O.S.No. 1932 of 1985 against the final notice issued under Section 636 of the H.M.C. Act, in which, the Civil Court granted status quo orders. It is denied by the 3rd respondent that she encroached 30 Square Yards of land belonging to the M.C.H. and that the petitioners were prevented from going to their respective houses. It is further stated in the counter that G.O.Ms.No. 87 dated 12-2-1992 was issued by the Government to enable the Public to obtain ratification of the illegal constructions. Since the petitioner got the construction regularised as per the orders of the Government, the question of violation of any orders does not arise.