IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.17 of 2010 Between: The Commissioner, Sangareddy Municipality Sangareddy, Medak District .. Appellant AND Bussa Pentaiah and others .. Respondents This second appeal is filed praying to set aside the judgment and decree passed in O.S. No.398 of 2003, dated 13-12- 2005 on the file of the Principal Junior Civil Judge, Sangareddy, confirmed by the II Additional District Judge (Fast Track Court), Sangareddy in A.S. No.17 of 2006, dated 29-10-2009. The second appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of Sri G. Krishna Murthy, learned counsel for the appellant and of Sri R. Vinod Reddy, learned counsel for the respondents, the Court delivered the following: JUDGMENT: Heard Sri G. Krishna Murthy, learned counsel for the appellant and Sri R. Vinod Reddy, learned counsel for the respondents. The second appeal by the unsuccessful defendant in O.S. No.398 of 2003 on the file of the Principal Junior Civil Judge, Sangareddy is directed against the confirmation of the judgment and decree of the trial Court dated 13-12-2005 by the first appellate Court in A.S. No.17 of 2006 on the file of the II Additional District Judge (Fast Track Court), Sangareddy by judgment, dated 29-10-2009. The suit was filed for a perpetual injunction against the appellant herein from interfering with the possession of the respondents herein over the suit schedule open space claiming the respondents herein to be the absolute owners and possessors of the said open plot of 610 square yards, in which they desired to construct a commercial complex, applied to the appellant for permission for construction and commenced the construction in the absence of any response from the appellant, taking recourse to deemed permission under the provisions of the Andhra Pradesh Municipalities Act. The respondents claimed that they did not violate any provision or principle of law in proceeding with the construction and sought for permanent injunction, as the appellant was alleged to be interfering with such construction through its subordinates and to be intending to demolish the construction. The appellant resisted the suit contending that there was no approved layout for the survey number in question and as per the master plan approved by the Government under G.O.Ms. No.32, dated 12-01-1988, the suit schedule land will be covered by the road to be formed. The appellant alleged that the respondents were obstructing the road formation since inception under one ruse or the other and avoided to take even the notice issued on 13-03- 2003 in this regard. The appellant further contended that the statutory authority vested in it entitles the appellant to take action, against which no injunction can be granted. The appellant also referred to the judgment and decree in O.S. No.99 of 1984 and the proceedings in W.P. Nos.4754 of 1993 and 21720 of 1996 and contended that the proceedings for acquisition of the land were already set in motion and the Commissioner of the municipality is empowered to issue notice against illegal constructions and remove them. After framing issues about the entitlement of the respondents/plaintiffs for a perpetual injunction, the trial Court examined P.Ws.1 and 2, D.Ws.1 and 2 and C.W.1 and marked Exs.A.1 to A.44, B.1 to B.34 and C.1 to C.9 during trial. The trial Court rendered the judgment on 13-12-2005 primarily opining that the appellant cannot interfere with the possession of the respondents over the suit property except in accordance with law even assuming that there was a master plan and the suit property is falling within the road proposed by the master plan. The trial Court also referred to the land acquisition proceedings that were said to have been set in motion and concluded that still the service of notices on the respondents as required was not proved, as there was ambiguity in the evidence regarding such service. The trial Court also considered that the alleged service of such notice was not proper and there was no proof on record to show any construction against any plan. It also noted the report of the advocate commissioner that the master plan road is not passing through the said property. Still the trial Court made it clear that the defendant municipality is at liberty to take steps if the plaintiffs violate the provisions of the Municipal Rules and consequently granted an injunction only against interference with possession except under due process of law. The first appellate Court in the impugned judgment in A.S. No.17 of 2006, dated 29-10-2009 noted that the ownership and possession of the suit land by the plaintiffs were not questioned and the main question in issue between the parties was regarding the violation of Municipal Rules in commencing and continuing the construction by the respondents. The first appellate Court noted that though the respondents herein are claiming to have commenced the construction by virtue of deemed permission with reference to the provisions of the Municipalities Act, they cannot make any construction by deviating from the plan they submitted or by violating the prescribed rules under the Act or be permitted to make a construction which is dangerous to public safety or for decency of their lives; still the first appellate Court considered that the municipality is bound to serve a show cause notice and give sufficient time to builders to remove any unauthorized and illegal constructions made in violation of rules and regulations, which service of notice was not proved in this case. In the absence of such service of notice in compliance with Section 228 of the Andhra Pradesh Municipalities Act, the first appellate Court concluded that the municipality did not follow the procedure laid down under the Act and the Rules. It also referred to the directions of this Court earlier in W.P. Nos.4754 of 1993 and 21720 of 1996, which were disposed by a common order directing the municipality not to interfere with the possession of the respondents herein except under the procedure established by law. The first appellate Court, therefore, concluded that while the defendant municipality is not deprived of its authority to initiate any proceedings against any part of the suit land by following the procedure as under law, it cannot illegally demolish the construction made by the respondents herein in the suit land. As such, it has concluded that until the procedure laid down for demolition of any illegal constructions is followed, the municipality cannot interfere with the possession and enjoyment of the suit properties by the respondents herein and consequently, confirmed the judgment of the trial Court. The unsuccessful municipality seeks to contend that both the Courts below failed to appreciate the scope of the suit and the evidence on record as well as the probabilities arising out of such evidence. The appellant contended that without sanction of any plan, the construction was commenced and being proceeded with, under which circumstances, any deemed permission under Section 214 of the Andhra Pradesh Municipalities Act does not arise. The appellant also contended that the injunction granted was irregular and illegal, in effect and substance, permitting construction in violation of zonal regulations and the provisions of the statute. Therefore, the appellant states that the grant of perpetual injunction in favour of the respondents herein against the municipality is in violation of Sections 37 and 38 of the Specific Relief Act as well as the zonal regulations and the Municipalities Act, which is a substantial question of law to be heard and decided. Both the Courts below concluded as a matter of fact that the suit property of 610 square yards is owned and possessed by the respondents herein in their own right and as seen from the material on record, the controversy is only about the construction commenced and continued by the respondents herein, but not about the ownership and possession of the property with the respondents. Both the Courts below found, irrespective of other considerations about the manner in which the construction was commenced and continued and about the suit property falling under the proposed road under the master plan or not, that the appellant municipality did not act in accordance with the provisions of the Andhra Pradesh Municipalities Act in attempting to interfere with or demolish the construction being made by the respondents herein. So, what all the trial Court had concluded and what all the first appellate Court had confirmed is that unless due process of law is followed, the possession and enjoyment of the property by the respondents cannot be interfered with. Both the Courts positively recognize the right of the municipality to take steps if the respondents herein violate the provisions or principles of the statute or statutory rules. Such a qualified injunction restraining the statutory authority from interfering with the ownership and possession of the property of the respondents herein except in accordance with the statutory procedure, cannot be construed to be, in any manner, in derogation of the discretionary equitable relief permissible under Sections 37 and 38 of the Specific Relief Act. Sri G. Krishna Murthy, learned counsel for the appellant referred to Palakole Municipality, Palakole v. B. Sachidananda Rao[1], whereunder it was laid down that even in respect of a suit concerning illegal demolition of a building, a statutory notice prior to the suit is mandatory, without which the suit is not maintainable. But it has to be noted that the said question of the suit being vitiated due to the absence of any statutory notice was never raised before the trial Court and the first appellate Court and being a mixed question of fact and law, it may not be open to the appellant to raise the plea in the second appeal. While both the Courts below were unanimous on the factual conclusions, no substantial question of law within the scope of Section 100 of the Code of Civil Procedure can be considered to be arising in the second appeal under the circumstances and therefore, while making it clear that the appellant municipality is entitled to take all such action as is permissible in accordance with law in respect of the subject matter of the dispute in the suit as already held by the trial Court and as confirmed by the first appellate Court, the second appeal has to fail. Accordingly, the second appeal is dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 22-01-2010 Svv [1] 1997 (5) ALD 571