IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 8356 of 2008 Between: S.Prabhakar Rao S/o.Pandurangam R/o.12-11-182, Brahmana Basthi, Warasiguda, Secunderabad. ..... PETITIONER AND 1 Greater Hyderabad Municipal Corporation, Municipal Complex, Tank Bund Road, Hyderabad, Rep. by its Commissioner & Special Officer. 2 The Chief City Planner, GHMC, Hyderabad. 3 A.Aravinda Devi W/o. Venu Madhav R/o.12-11-178, Brahmana Basthi, Warasiguda, Secunderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents 1 & 2 herein in not taking action against the illegal constructions made by the 3rd respondent herein at H.No: 12-11-181, situated at Brahmana Basthi, Warasiguda, Secunderabad by deviating from the approved plan issued by them as illegal, arbitrary, contrary to the provisions of The Hyderabad Municipal Corporations Act, 1955 and consequently direct the oﬃcial respondents herein to remove the said illegal constructions made by the 3rd respondent and pass such other order or orders. Counsel for the Petitioner:MR.JITHENDER RAO VEERAMALLA Counsel for the Respondent No.: R.RAMACHANDRA REDDY,SC FOR MCH 1,2,4&6 The Court made the following : O R D E R: The petitioner is owner of the premises bearing Door No.12- 11-182, Brahmana Basthi, Warasiguda, Secunderabad. He submitted representations to 1st and 2nd respondents complaining the illegal constructions that are being made by A.Aravinda Devi- 3rd respondent at her premises bearing Door No.12-11-181, Brahmana Basthi, Warasiguda, Secunderabad. There being no action on the part of 1st and 2nd respondents on the said representations, the petitioner choose to approach this Court invoking the jurisdiction under Article 226 of the Constitution of India. When this writ petition came up for admission on 17- 4-2008, learned Standing Counsel appearing for GHMC-R1 received notice and sought time for obtaining instructions. An interim order came to be granted on the same day restraining 3rd respondent from making any constructions in the premises bearing Door No.12-11-181, Brahmana Basthi, Warasiguda, Secunderabad. Subsequently the writ petition came to be admitted on 28.4.2008 and the interim order granted on 17.4.2008 has been directed to be continued. The 3rd respondent entered appearance and ﬁled WVMP.No.1714 of 2008 to vacate the interim order granted on 17.4.2008. It is stated in the counter aﬃdavit that 3rd respondent purchased an old house bearing No.12-11-181 situated on the northern side of the property claimed by the petitioner. The averments made in the writ petition that the 3rd respondent constructed the building without leaving set backs has been denied. Para 6 of the counter aﬃdavit needs to be noted and it is thus: “ 6. In reply to further averments in para 4 of the aﬃdavit, it is denied that no set backs were left as claimed by the petitioner. In as much as the petitioner himself admits that no one resides in the subject house, the claim for obstruction of easementary rights arising out of construction of mine does not arise nor can it be sustained. It is further submitted that no such easementary rights enjoyed by the petitioner or anyone else over the several decades now and therefore there is no vested right in favour of the petitioner or for a claim for easementary right being aﬀected. It is denied that any constructions made by me obstructs any claim of the petitioner much less any illegal rights of the petitioner.” When the vacate stay petition came up for consideration, with the consent of the parties, the writ petition itself is taken up for final disposal. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for 1st and 2nd respondents and learned counsel appearing for 3rd respondent. Learned counsel appearing for the petitioner submits that 3rd respondent suppressing the interim orders passed by this Court approached the Civil Court and obtained interim order and the order passed by the Civil Court shall be treated as nonest since the matter has already been seized by this Court and an interim order came to be passed on 28.4.2008. A further submission has been made that 3rd respondent proceeded with the construction despite the interim order passed by this Court on 28.4.2008 and thereupon the petitioner ﬁled Contempt Case and it is pending consideration. Learned counsel appearing for the 3rd respondent submits that the 3rd respondent approached the Civil Court when 1st and 2nd respondents are contemplating to demolish the constructions made by him. He would submit since the grievance of the petitioner is that the constructions made by 3rd respondent are violating his easementary rights in which case the remedy of the petitioner is to approach the Civil Court and not the Writ Court. Per contra, learned counsel appearing for the petitioner submits that the 3rd respondent after ﬁling the counter in the writ petition approached the Civil Court suppressing the fact of interim orders passed by this Court. In response, learned counsel appearing for 3rd respondent submits that 3rd respondent made an application seeking regularization of the deviations in the constructions and the said application is pending consideration. Indisputably, an interim order came to be passed by this Court on 28.4.2008 directing 3rd respondent to restrain from making any further constructions in Door No.12-11-181, Brahmana Basthi, Warasiguda, Secunderabad. The petitioner already ﬁled a Contempt Case complaining the disobedience of the order. I am restraining myself to dwell upon the aspect as to whether 3rd respondent made constructions after the interim orders passed by this Court, since this aspect is required to be gone into in the Contempt Case. It is suﬃce to state that 3rd respondent approached the Civil Court and obtained interim orders restraining R1 and R2 from demolishing the constructions made by her. In the counter aﬃdavit ﬁled by R1 and R2 deviations made by 3 rd respondent in the constructions have been detailed. Therefore, the fact that R3 deviated from the sanctioned plan stands proved. In case of deviations from the sanctioned plan, it is for R1 and R2 to see that the deviations are removed or demolished. However, since the interim order passed by the Civil Court is pending, R1 and R2 cannot proceed with the demolition of the constructions made by R3 in deviation of the sanctioned plan. In that view of the matter, this Writ Petition is disposed of directing 1st and 2nd respondents to proceed with the removal or destruction of the constructions made by 3rd respondent in deviation of the sanctioned plan as soon as the interim orders passed by the Civil Court is vacated. The petitioner is also at liberty to make himself impleaded as a party in the Civil suit which is stated to be pending, and move necessary application, if so advised, for vacation of the interim orders. No costs. 10th September, 2008. (B.Seshasayana Reddy,J) tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.8356 OF 2008 10T H SEPTEMBER 2008