THE HON’BLE Ms. JUSTICE G. ROHINI Writ Petition No. 18775 of 2010 Dated: 14.09.2010 Between: Tanjavoor Parameswara Rao and another. … Petitioners And The Government of A.P., Rep., by its Secretary, Hyderabad and 4 others. … Respondents THE HON’BLE Ms. JUSTICE G.ROHINI Writ Petition No. 18775 of 2010 O R D E R: The petitioners herein claim to be the residents of House bearing No.28/1564 and house bearing No.28/1282 B of Sivalayam Street, Venkateswarapuram, Nellore, Pottisreeramulu District. It is not in dispute that the 3rd respondent is the owner of the premises bearing No.28/1354. It is pleaded by the petitioner that the 3rd respondent having demolished the existing building which was constructed long back, raised new structures in the year 2008-2009. Alleging that the said building was constructed without obtaining the permission and without leaving any open space and raising pillars on the road margins, the petitioners as well as the other residents of the locality made representations to the 2nd respondent- Municipal Corporation of Nellore. Pursuant thereto, show cause notice dated 07.07.2008 was issued under Section 461 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) calling upon the 3rd respondent to show cause as to why the structures should not be demolished on the ground that they were constructed contrary to the Building Regulations and without obtaining prior permission. Thereafter, though the 3rd respondent submitted an application for building permission on 26.07.2008, the same was returned by the 2nd respondent-Corporation by order dated 11.08.2008. In the meanwhile, O.S.No.791 of 2008 and O.S.No.794 of 2008 were filed by the residents of the locality in the Court of the I Additional Junior Civil Judge, Nellore, and by orders dated 24.10.2008 in I.A.No.703 of 2008 and I.A.No.706 of 2008 temporary injunction was granted restraining the 3rd respondent from proceeding with the constructions. In spite of the same, as the 3rd respondent was proceeding with the construction, the petitioner filed W.P.No.657 of 2009. The petitioner also filed Contempt Case No.309 of 2009 alleging wilful violation of the interim order passed by this Court dated 22.01.2009 under which the 3rd respondent herein was directed not to make any illegal constructions. The said writ petition and the contempt case were disposed of together by order dated 11.03.2010 directing the 1st respondent- Commissioner, Municipal Corporation, Potti Sreeramulu Nellore District, to initiate necessary steps for removal of the unauthorized structures, if any, made by the 3rd respondent herein by issuing notice. The 3rd respondent herein was permitted to make the constructions after obtaining necessary permission from the Municipal Corporation. It is pleaded that though no further steps were taken in terms of the order of this Court in W.P.No.657 of 209 and C.C.No.309 of 2009, it was found that the 3rd respondent had let out the premises in question to the 5th respondent herein for the purpose of establishing a shop for sale of liquor. Having found that a provisional licence under the A.P. Excise Act and the Rules made thereunder was also granted in favour of the 5th respondent, the petitioners filed W.P.No.16398 of 2010 in which by order dated 09.07.2010 in W.P.M.P.No.20654 of 2010 this Court granted ad-interim injunction restraining the licencee/5th respondent herein from establishing A-4 shop in the premises in question. While so, the 2nd respondent-Corporation by proceedings dated 24.07.2010 granted permission to the 3rd respondent as per the revised plan for existing ground+1st floor building at Door No.28/1354 under Section 455- A of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) read with G.O.Ms.No.302 dated 15.04.2008. Aggrieved by the same, present writ petition is filed contenting that as the building in question is totally in contravention of G.O.Ms.No.302 dated 15.04.2008, the 2nd respondent ought not to have exercised the power conferred under Section 455-A of the Act. While pointing out that whereas the application was made on 22.07.2010, the permission was granted immediately on 24.07.2010, it is further contended that the 2nd respondent had granted the permission hurriedly without application of mind and without verifying the actual ground position. It is also contended that the 3rd respondent who suffered the order in W.P.No.657 of 2009 is not entitled to the building permission without removing the unauthorised constructions already made. On behalf of the 2nd respondent-Corporation, a detailed counter affidavit has been filed stating that the 3rd respondent carried out certain repairs to the existing old house by removing the asbestos sheets and that the same cannot be termed as demolition of the existing house. It is further stated that the 3rd respondent though submitted a representation for construction of ground + 1st floor, it was decided by him not to demolish the old house and he started construction on the existing structures after removal of asbestos sheets. It is also stated that after disposal of W.P.No.659 of 2009, the 3rd respondent after removing the violative portions submitted revised plans for building permission and after considering the same, the Corporation vide proceedings dated 24.07.2010 issued building permission. A common counter affidavit has been filed on behalf of the respondent 3 and 5 denying the allegation that the 3rd respondent had demolished the building as it was in dilapidated condition and raised new structures without leaving any open space on the road margins. It is specifically alleged that the petitioners are the business rivals and the litigation has been set up only to see that the 5th respondent does not conduct the business in the premises in question. It is also contended that since the matter is sub judice before the competent civil Court, it is not open to the petitioners to initiate parallel proceedings under Article 226 of the Constitution of India. It is also pleaded that pursuant to the order passed by this Court in W.P.No.657 of 2009 at the instance of the 2nd respondent, the 3rd respondent got the objectionable portion demolished and thereafter made the application for regularization and the same was rightly granted by the Corporation. I have heard the learned counsel for both parties. The petitioners had earlier filed W.P.No.657 of 2009 seeking a declaration that the action of the Corporation in not taking appropriate action pursuant to the notice dated 07.07.2008 issued under Section 461 of the Act was arbitrary and illegal and for a consequential direction to the 1st respondent to remove the constructions raised by the 2nd respondent without obtaining the building permit. It was alleged that the 3rd respondent herein having removed the existing dilapidated constructions proceeded with constructions without obtaining any building permission and sanction plan. By interim order dated 22.01.2009, the 2nd respondent was directed not to make any illegal constructions. Alleging that the said order was flouted, the petitioners filed C.C.No.309 of 2009. Both W.P.No.657 of 2009 and C.C.No.309 of 2009 were heard together and disposed of by this Court by common order dated 11.03.2010. On a careful perusal of the said order, it is clear that this Court without expressing any opinion as to the correctness of the allegations made by the petitioner passed a consent order with directions as under: “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.” It is contended on behalf of the petitioners that in view of the above said order, unless the existing structures which were constructed unauthorizedly were removed, it was not open to the 2nd respondent to seek building permission. Since the unauthorized constructions have not yet been removed, according to the petitioners the 2nd respondent ought not to have passed the impugned order granting building permission under Section 455- A of the Act. As already noticed above, the plea of the petitioners that the 3rd respondent had removed the existing building in the year 2008 as it was in a dilapidated condition and a new structure was raised in the premises, has been categorically denied by the respondents. It is the specific case of the 3rd respondent that except carrying out certain repairs to the existing old house by removing asbestos sheet roof, no alterations were made. It was also pleaded that though the 3rd respondent proposed construction of ground + 1st floor by removing the existing structure and sought permission, subsequently the proposals were dropped and the construction was not taken up. The counter-affidavit filed on behalf of the Corporation substantiated the plea of the 3rd respondent that though he sought permission for construction of ground + 1st floor, he did not demolish the old house but made certain repairs to the old house were made by removing the asbestos sheets. As the said repairs/alterations were found to be not in accordance with law, those portions which were unauthorized were removed in terms of the order passed by this Court in W.P.657 of 2009 and thereafter, the 3rd respondent had submitted revised plan on 22.07.2010 and the same was sanctioned on 24.07.2010 under Section 455-A of the Act. However, the learned counsel for the petitioners while submitting that the stand taken by the respondents is quite contrary to their own plea in the counter affidavit filed in C.C.No.309 of 2009, vehemently contended that the plea of the respondents that only certain portions were unauthorised was incorrect and therefore the proceedings dated 24.7.2010 granting building permission was quite contrary to the order passed by this Court in W.P.No.657 of 2009. I do not find any substance in the said contention as this Court while disposing of W.P.No.657 of 2009 did not record any finding on any of the rival claims made by the parties. This court had only directed the 1st respondent to initiate necessary steps for removal of un-authorized structures “if any” made by the 2nd respondent by issuing notice. The 2nd respondent states that the objectionable portions which were found to be unauthorised, were removed and thereafter the revised plans submitted by the 3rd respondent were approved. Therefore, the impugned proceedings cannot be held to be contrary to the order of this Court in W.P.No.657 of 2009. The allegation that the entire building was constructed by the 3rd respondent without sanction after getting the old building demolished is a disputed question of fact which cannot be decided by this Court in writ jurisdiction. The further contention that even as on today, there are violations and therefore the 2nd respondent ought not to have exercised the power conferred under Section 455-A also deserves no consideration by this Court in this writ petition. If aggrieved, it is always open to the petitioner to avail the statutory remedy of appeal. For the aforesaid reasons, the Writ Petition which is devoid of merit is hereby dismissed. No costs. ​ ______________ G. ROHINI, J Date: 14.09.2010 KLP