IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.6077 OF 2009 BETWEEN M/s. A.R.B. Promoters-III, a partnership firm, rep. by its Managing Partner, Visakhapatnam and others. …PETITIONERS AND Sri Varaha Lakshmi Narasimha Swamy Devasthanam. …RESPONDENT Counsel for the petitioners: MR. T. NIRANJAN REDDY Counsel for the Respondent: MR. V. VENUGOPALA RAO The Court made the following: - ORDER: Heard both sides and by consent of both the learned counsel the revision petition is being disposed of at the interlocutory stage. 2. The first petitioner is the developer while petitioners 2 to 5 are individual plot owners. The suit schedule property comprises of 1,016 sq. yards situated in Sy.No.1/P of Maddilapalem village, Visakhapatnam. 3. The case of the plaintiffs/petitioners herein is that the land in question was acquired by the Government of Andhra Pradesh under Award No.6 of 1972 dated 10.05.1972 and it was allotted to the Visakhapatnam Urban Development Authority (VUDA). VUDA in turn sold Ac.2.62 cents of land to SC/ST Employees House Building Society and thereafter, the society claimed that is has obtained layout permission under LP.No.19 of 1993 from VUDA with respect to 38 plots. The building permission was applied for on 14.07.2009 and as the said application was not disposed of within 30 days, deemed permission was claimed by the plot owners from 13.08.2009. Since the plot owners wanted to take up constructions and as there was interference by the respondent - Devasthanam, the present suit O.S.No.1389 of 2009 came to be filed. The respondent claimed that the suit schedule land, in fact, is part of Sy.No.275 of Adavivaram village, which is part of the property of respondent – Devasthanam. It appears that before taking up constructions an undertaking marked as Ex.B6 dated 28.07.2009 was given to the Executive Officer of the respondent – Devasthanam that the plot owners shall abide by the terms and conditions of the Devasthanam regarding boundary between Sy.No.275 of Adavivaram village and layout in Sy.No.1/P of Maddilapalem village. 4. The petitioners filed an application being I.A.No.1699 of 2009 for injunction pending their suit for perpetual injunction and on contest, though initially interim injunction was granted on 22.10.2009, the same was vacated on 07.11.2009. Aggrieved thereby, the petitioners filed an appeal being CMA.No.64 of 2009 before the lower appellate Court and the said appeal has been partly allowed under the impugned judgment dated 01.12.2009. The lower appellate Court found on facts that the petitioners/plaintiffs have established, prima facie, case and consequently, granted temporary injunction restraining the respondents from interfering with the possession of the petitioners on the plaint schedule land during the pendency of the suit or till the survey is completed, whichever is earlier. The lower appellate Court, however, placed restraint on the petitioners that they shall not proceed with the construction and they shall maintain status quo with regard to existing structures in the schedule land as on the date of passing of the order by the lower appellate Court i.e. 30.11.2009. Aggrieved thereby this revision is preferred. 5. It is brought to my notice that by the learned counsel for the respondent that this Court by an order in WP.No.4377 of 2009 dated 23.03.2009 directed the survey authorities and the Collector, Visakhapatnam to ensure that the survey of the land of the respondent – Devasthanam, as directed by the high level committee, is completed by 20.04.2009 and file a report before the Court. I am informed that the time granted has since been extended till the second week of December 2010 to enable the authorities to complete the survey and file a report. It is in that context that the lower appellate Court granted injunction order pending survey. 6. In this revision petition while issuing notice on admission on 18.12.2009 this Court granted interim direction permitting the petitioners to proceed with the construction in the suit schedule land as per the building permission granted by the Municipal Corporation of Visakhapatnam in permit BA.No.11593/09/ACP-1 dated 26.10.2009. It may incidentally be mentioned that the said permit was granted to the petitioners on 26.10.2009 though initially petitioners claimed their entitlement to construct on the basis of deemed permission as on 13.08.2009. 7. Petitioners contend that as per the interim direction the petitioners 2 to 5 have since completed the construction of the main structure, only finishing work is to be completed. 8. The respondents herein thereafter filed CRVMP.No.159 of 2010 seeking vacation of the interim direction granted by this Court earlier and after hearing both sides by further order dated 13.08.2010 this Court modified interim direction earlier granted to that of status quo to be maintained by both the parties. 9. Learned counsel for the petitioners states that after the said order of status quo, the finishing work which the petitioners 2 to 5 proposed to take up remained held up and that being the urgency both the learned counsel requested for disposal of this revision petition. 10. On appreciation of the record of the revision petition including the order of the lower appellate Court, I am of the view that the impugned order of the lower appellate Court suffers from two glaring factual errors – (1) the lower appellate Court thinks that the plot owners had given undertaking that they will not proceed with construction and (2) that the Municipal Corporation of Visakhapatnam did not grant any approval to the building plan, as sought by the petitioners. The nature of undertaking, which was given by the plot owners and marked as Ex.B6 is already referred to above and I am unable to find any undertaking not to take up constructions by the plot owners, as wrongly understood by the lower appellate Court. Secondly, the building permission was, in fact, granted by the Municipal Corporation of Visakhapatnam as evidenced by Ex.A20 but that has not been noticed by the lower appellate Court, while passing the impugned judgment. On these two grounds, therefore, the restraint placed by the lower appellate Court while granting injunction in favour of the petitioners 2 to 5 is required to be modified and the order of the lower appellate Court to that extent is required to be set aside. Accordingly, the impugned order to the extent of placing restraint on the construction by the petitioners is set aside. 11. The aforesaid, however, would not resolve the existing controversy in view of the fact that according to the learned counsel for the respondent – Devasthanam the survey report is scheduled to be filed before this Court in the writ petition, referred to above, sometime by second week of December 2010. It is, however, not in dispute that the construction by the petitioners 2 to 5 taken as per sanction plan – Ex.A20, has substantially progressed and is said to be at the finishing stage. Even from the point of view of balance of convenience, I am unable to see any reason to stop construction from that stage inasmuch as the construction, which is structurally completed can always be finished and no purpose would be served by keeping the structures unfinished. I am, therefore, inclined to permit the petitioners to complete the finishing work of the constructions in accordance with Ex.A20 sanction plan subject, however, to the following conditions: 1. The petitioners shall file an undertaking before the trial Court that the finishing work permitted to be completed in pursuance of this order shall be strictly in accordance with the sanction plan – Ex.A20. 2. The petitioners shall not alienate, transfer or otherwise create third party interest for the time being with respect to their schedule flats in any manner, whatsoever, without seeking leave of the trial Court pending the suit. In the event of any part of the schedule property being alienated by the petitioners, the document of conveyance shall contain a clause with respect to the present pendency of the present suit and the conditional permission to construct, as granted herein, and the purchaser shall be required to furnish an undertaking, as above, to the trial Court for the purpose of seeking leave for such alienation. 3. The petitioners shall also undertake that the constructions as well as the finishing work made by them shall be at their risk and they shall not claim equities. The revision petition is accordingly allowed with the directions, as above. The trial Court shall consider and dispose of the suit duly taking into consideration the survey report and other evidence, which parties may produced, in accordance with law preferably by the end of August 2011. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J November 26, 2010 DSK