THE HON’BLE SRI JUSTICE N.V.RAMANA WRIT PETITION No.657 of 2009 AND CONTEMPT CASE No.309 of 2009 Dated: 11.03.2010 WRIT PETITION No.657 of 2009: Between: Tanjavoor Parameswara Rao and another. .. Petitioners. And The Commissioner, Municipal Corporation, Nellore, Potti Sreeramulu District, and another. .. Respondents. CONTEMPT CASE No.309 of 2009 Between: Tajavoor Parameswara Rao and another. .. Petitioners And T.S.R.Anjaneyulu, Commissioner, Municipal Corporation, Nellore, Potti Sreeramulu District, and another. .. Respondents. COMMON ORDER: The petitioners claim to be the residents of Sivalayam Street, Venkateswarapuram, Potti Sreeramulu Nellore District. They state that the 2nd respondent, who is residing in H.No.28/1354 of the same locality, removed the existing dilapidated structure of his house and proceeded with constructions in place of old structures, without obtaining any building permission and sanctioned plan. They state that they made a representation to the 1st respondent-Commissioner, Municipal Corporation, bringing to his notice about the illegal constructions being made by the 2nd respondent. Thereupon, the 1st respondent issued a notice on 07.07.2008, under Section 461 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’), to the 2nd respondent, requiring him to stop the constructions and remove the structures made contrary to the provisions of the Act. The 2nd respondent, having received the notice dated 07.07.2008, made an application to the 1st respondent, seeking permission for construction of a building in place of existing old structures. However the 1st respondent rejected the said application on 11.08.2008 pointing out certain defects. Thereafter, the petitioners contend that the 2nd respondent neither rectified the defects pointed out by the 1st respondent nor submitted the revised plans. The grievance of the petitioners is that though based on the complaint about the illegal constructions being made by the 2nd respondent, the 1st respondent issued notice dated 07.07.2008 to the 2nd respondent and rejected the building permission application submitted by him, the 1st respondent has not taken any action against the illegal constructions made by the 2nd respondent. Hence, the writ petition. This Court, while admitting the writ petition on 22.01.2009, by orders in W.P.M.P.No.309 of 2009 directed the 2nd respondent not to make any illegal constructions until further orders. While so, the petitioners filed the contempt case, complaining that, in spite of issuance of notice by the 1st respondent on 07.07.2008, requiring the 2nd respondent to stop the constructions and remove the constructions made contrary to the building regulations, and also passing of interim orders by this Court in W.P.M.P.No.309 of 2009 on 22.01.2009, the 2nd respondent is proceeding with the constructions, without obtaining permission, and that the 1st respondent has not initiated any action, as per law, to stop the illegal constructions being made by the 2nd respondent. The 1st and 2nd respondents filed their respective counter affidavits in both the writ petition as well as the contempt case. In the contempt case, the 1st respondent filed a detailed counter affidavit stating that as the 2nd respondent commenced construction of a new building with RCC pillars, by removing the existing old house bearing No.28/1354, without leaving the open space as required under the building Rules, he issued notice dated 07.07.2008, under Section 461 of the Act to the 2nd respondent, requiring him to stop the constructions and remove the constructions made contrary to the building regulations. In response to the said notice, the 2nd respondent submitted plans to the Corporation on 25.07.2008, seeking permission for construction of ground and first floor building in place of existing old building, but the Corporation returned the plans unapproved vide endorsement B.A.No.415/2008/G1, dated 11.08.2008, pointing out some defects in it. Thereafter, the 2nd respondent neither rectified the defects nor submitted the revised plans. It is also stated that the orders dated 22.01.2009 passed in W.P.M.P.No.809 of 2009 in the writ petition have been received by him on 02.03.2009. However in the said order, the door number is mentioned as 28/1564, which does not relate to the 2nd respondent. He further stated that taking advantage of the absence of his staff, the 2nd respondent was carrying on construction work. The City Planning Section also got issued notice, dated 18.02.2009, under Section 461 of the Act, to the 2nd respondent, requiring him to stop the construction work. As the 2nd respondent refused to receive the same, it has been affixed at the construction place as per Rules. Even thereafter, as the 2nd respondent continued to make the unauthorized construction, another notice dated 28.02.2009, under Section 636 of the Act was issued to him, which was served on 02.03.2009. It is further stated that, in obedience to the orders passed by this Court on 22.01.2009 in W.P.M.P.No.809 of 2009, they have taken all the steps, in accordance with law, to stop the illegal constructions being made by the 2nd respondent, and thus, they have not disobeyed the orders of this Court. The 2nd respondent filed counter affidavit in the contempt case stating that he leased out the subject property to one Vadde Venkateshwarlu, for establishing and running a Restaurant & Bar. He stated that one M. Mandava Ramaiah and his son M.Dinesh, who have been running Bar & Restaurant, prevailed over him not to give the subject property on lease to the said Venkaeshwarlu, but however, as he did not accede to their pressures, they have set up the petitioners. They also got filed several suits against him and his lessee and obtained orders from the competent civil Court. That apart, they also filed W.P.No.3670 of 2009 before this Court, against his lessee, in order to stall the consideration of the application of his lessee for permission to establish Restaurant & Bar. The said writ petition is pending adjudication. It is further stated that he did not make any constructions, pursuant to the orders of this Court, and the petitioners, with the help of their henchmen, are successfully preventing the authorities from permitting him and his lessee in obtaining permission and commencing business in the premises in question. It is also stated that he did not make any constructions after July, 2008. That only with a view that he should not receive any amount towards lease and no business is conducted in the subject premises, the petitioners are creating hurdles. It is further stated by the 2nd respondent that though this Court passed interim orders on 22.01.2009, the material papers filed by the petitioners would clearly disclose that even before communicating the said interim orders to him, the petitioners got prepared the affidavit in the contempt case on 1st February, 2009, but filed the same in the month of March, 2009, which clearly depicts the pre-determined intention of the petitioners. In the writ petition also, the 1st respondent filed a counter affidavit, reiterating the contents as stated in the counter affidavit filed in the contempt case. However, it is specifically averred that because of pendency of the respective suits being O.S.Nos.791 of 2008 and 703 of 2008, on the file of the I-Additional Junior Civil Judge, Nellore, filed by one Sunkara Chennaiah and S.K. Abdul Raheem, the neighbours of the 2nd respondent, and in view of obtaining of status quo orders by them in the said suits, they are not able to proceed further in the matter. The 2nd respondent filed counter affidavit in the writ petition, stating that he did not demolish the existing structures of his building and did not encroach upon the road, but carried out certain repairs to the existing old house belonging to him, by removing the asbestos sheet roof and, thus, the same cannot be termed as demolition of the existing house and construction of a new house in its place. He further stated that one of his neighbour by name one Sunkara Chennaiah filed a suit being O.S.No.791 of 2008 on the file of the I-Additional Junior Civil Judge, Nellore, against him and the 1st respondent herein, seeking permanent injunction restraining him and his men from constructing unauthorized construction, causing damage to the western side of the plaint schedule property, and for other reliefs. It is stated that similarly, another suit in O.S.No.794 of 2008 was filed by his another neighbour, namely Shaik Abdul Rahim, before the I- Additional Junior Civil Judge, Nellore, against him and the 1st respondent, seeking permanent injunction restraining him from making unauthorized constructions, causing damage to the southern compound wall of the plaintiff therein, and for other reliefs, and in I.A.No.706 of 2008 filed therein, the Court below appointed Advocate Commissioner to note down the physical features of his house, and accordingly, the Advocate Commissioner inspected the site on 23.11.2008 and executed the warrant and submitted a report to that effect. After the said report, he did not construct any portion of his house or change any structures in it, and he submitted a representation, for construction of ground and first floors, in place of existing structures, but due to hurdles being created by the petitioners, his neighbours and business rivalry people and also in view of pendency of suits, he decided not to demolish the old house and construct a new house for the time being. He further submitted that he did not receive the endorsement, dated 11.08.2008, of the 1st respondent and did not receive any other notice from the authorities. It is also stated that the petitioners are none other than some of the plaintiffs in O.S.No.1575 of 2007 on the file of III Addl. Junior Civil Judge, Nellore, which was filed against the Prohibition and Excise Department and his lessee, seeking permanent injunction restraining the official respondents therein from passing orders of permission for shifting the business of his lessee to the subject premises. It is the further case of the 2nd respondent that, except carrying out certain repairs by him to the existing old house belonging to him, by removing the asbestos sheet roof, he did not make any illegal constructions. This stand of the 2nd respondent is denied by the 1st respondent, in his counter affidavit, stating that since the 2nd respondent was proceeding with unauthorized construction, he got issued a notice dated 07.07.2008 requiring the 2nd respondent to stop further construction. It is also contended by the 1st respondent that taking advantage of the absence of his staff, the 2nd respondent was proceeding with the construction work, and therefore, the City Planning Section got issued notice dated 18.02.2009 to the 2nd respondent. The 1st respondent has also taken a stand that even though this Court passed interim orders on 22.01.2009 in W.P.M.P.No.809 of 2009 in the writ petition, directing the 2nd respondent not to make any illegal constructions, however as the 2nd respondent continued to make unauthorized constructions, another notice dated 28.02.2009, under Section 636 of the Act, was issued to him, which was served on 02.03.2009, and thus they have taken all the steps, in accordance with law, to stop the illegal constructions made by the 2nd respondent. It is specifically averred by the 1st respondent that because of pendency of the suits filed by the neighbours of the 2nd respondent, against the 2nd respondent and others, and obtaining of status quo orders in those suits, they are not able to proceed further in the matter. Heard the learned counsel for the petitioner, the learned Standing Counsel for 1st respondent-Corporation and learned counsel for respondent No.2 at length, and they agreed to dispose of the writ petition with the following directions: “The 1st respondent-Commissioner, Municipal Corporation, Potti Sreeramulu Nellore District, is directed to initiate necessary steps for removal of the unauthorized structures, if any, made by the 2nd respondent by issuing notice. The 2nd respondent is permitted to make the constructions only after obtaining necessary permission from the Municipal Corporation.” With the above directions, the writ petition is disposed of, and consequently, the contempt case is closed. ______________ N.V.RAMANA,J 11.03.2010 v v