THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITIONS Nos. 11263 AND 14070 OF 2006 DATED: 14.02.2008 W.P.NO. 11263/06 :- Kishore Kumar, Secunderabad, … Petitioner And : Municipal Corporation of Hyuderabad Rep by its Commissioner, Hyderabad and another … Respondents W.P. NO. 14070/06 :- T.N.Khambati, Secunderabad. … Petitioner And : Municipal Corporation of Hyderabad Rep by its Commissioner, Hyderabad and others … Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITIONS Nos. 11263 & 14070 OF 2006 ORAL COMMON ORDER : The first writ petition is by a sole petitioner for a declaration that the order of the 1st respondent-Corporation dated 5.6.2006 issued u/Sec. 405 of the Hyderabad Municipal Corporation Act 1955 (‘the Act’) is illegal. By this order the Corporation directed the petitioner to remove the encroachments from the open land earmarked for a park in three days from the date of receipt of the notice, failing which the Corporation would take action. This notice alleges that the petitioner made unauthorized constructions by encroaching the park site in premises No. 1-8-215/24-A, B and C (Plot No.6), Lalbahadur Nagar, Penderghast Road, Secunderabad in an extent of 177 Sq.Yds and without a valid building permission. The 2nd writ petition is also by a sole petitioner seeking a direction to the 1st respondent-Corporation to act in accordance with law and cause demolition of the building constructed by the 4th respondent therein. The 4th respondent is alleged to have illegally occupied and made construction of a house in a land earmarked for a park as per the Layout No.144/26 dated 30.11.1970. Heard Sri V. Venkata Ramana, learned counsel for the petitioner, Sri R. Ramachandra Reddy, learned counsel for the respondents 1 and 2 and Sri Meharchand Noori, learned counsel for the 3rd respondent, who has been impleaded by the order of this Court, dated 14.02.2008, in W.P.M.P.No.1695 of 2007, in W.P.No.11263 of 2006, and Sri V. Srinivas, learned counsel for the petitioner and Sri R. Ramachandra Reddy, learned counsel for the respondents 1 to 3, in W.P.No.14070 of 2006. There is no representation for the 4th respondent in W.P.No.14070 of 2006. In the first writ petition a counter affidavit is filed by the Additional Commissioner, Secunderabad Division, MCH, on behalf of the respondent-Corporation, which sets out the chronology of facts which are relevant and sufficient for the disposition of both these writ petitions. According to this counter affidavit the petitioner in W.P.No. 11263/06 had encroached on a municipal park to an extent of 177 Sq.Yds and constructed a building therein without any permission. The construction was completed under the colour of an injunction order granted by the Civil Court in IA No. 1089 of 1991 in OS No. 596 of 1991. It is further pleaded in this counter that even as per the registered sale deed of the petitioner Plot No.18 admeasures 266.6 sq.yds, but the petitioner had encroached into 177 sq.yds of the municipal park. When the respondent-Corporation wanted to act against the illegal constructions by the petitioner on the park area, he filed W.P.No. 430/84. Initially a status quo order was granted, but the writ petition was dismissed thereafter. The petitioner then filed OS No.596/91 and on the basis of an interim order of injunction therein unlawfully proceeded with and completed the constructions. The Municipal Corporation filed its counter to IA No. 1089/91 in OS No.596/91 ( application for interim injunction) bringing out the relevant facts. The petitioner in the 2nd case and others being neighbours also impleaded themselves in the suit and filed an application IA No.795/94 u/Sec. 144 CPC, seeking removal of the offending construction by the petitioner and for restoration of status quo. IA No.795/94 was dismissed by the Court of first instance i.e, I Asst. Judge, City Civil Court, Secunderabad on 14.3.1995 on the point of maintainability. However, the court observed in the order that as the plaintiff had raised illegal structures taking advantage of an order of interim injunction, the Municipal Corporation is at liberty to take appropriate action against the plaintiff as the offence by the plaintiff is not compoundable. Thereafter the plaintiff in the other suit and two others who had filed IA No. 795/94, preferred an appeal AS No. 67/95 before the I Addl. Chief Judge, City Civil Court, Secunderabad against the order dated 14.3.1995. The appeal was allowed and consequently IA No. 795/94 and the relief as sought therein were granted by appellate order. Aggrieved thereby the petitioner filed CRP No.3363/2002, which was allowed by this court on 20.12.2005 and the order of the lower appellate court in As No. 67/95 was reversed. The petitioner filed another OS No. 810/95 before the IX Junior Civil Judge, CCC, Secunderabad, for a declaration that the revised layout vide permit No.142, Penderghast Road, Secunderabad, is not binding on them and for an injunction against the Municipal Corporation from interfering with the possession of their building in an extent of 177 sq.yds. This suit was dismissed on 7.12.1998. Thereagainst the petitioner and others filed As No.162/98. The appeal was dismissed on 16.2.2004. The second appeal SA No. 901/2004 thereagainst was also dismissed by this court on 1.10.2004. This court clearly held that the petitioner and others had illegally encroached on the open land put up constructions in 1984 with a view to encroach the land earmarked for a park. When the respondent-Corporation wanted to demolish the constructions the petitioner and others instituted another W.P.No. 430/84 and obtained an order of status quo. He thereafter filed OS No. 1727/85 and secured an interim order therein and then filed three more suits OS Nos. 263, 596 and 117 of 1991. OS no. 1727/85 was dismissed. The petitioner and others filed As No.45/92 thereagainst, which was also dismissed. Similarly the other suits were also dismissed eventually. It requires to be noticed that OS No.596/91 wherein the petitioner and others secured an interim injunction in IA No.1089/91 under the strength of which they completed the illegal constructions, was dismissed for default. After conclusion of all the aforesaid multitude of proceedings, when the Municipal Corporation issued the notice for demolition of the illegal structures, the petitioners filed the present writ petition (WP No.11263/06) assailing the order of the Corporation dated 5.6.2006 directing removal of the encroachments. Clearly this writ petition (WP 11263/06) constitutes abuse of the process of law. Having regard to this petitioner’s assertions in the various proceedings – suits as to his lawful title and possession of the property in an extent of 177 Sq.yds as the basis for the injunctive relief sought therein and in view of the dismissal of the multitude of suits and earlier writ petitions filed by him, on application of principles of res judicata and constructive res judicata the petitioner is debarred from asserting title to the property in question. Since the petitioner had clearly made constructions without an approved building permission, the constructions are liable to be demolished. The petitioner sometimes alone and sometimes in conjunction with others, has instituted numerous legal proceedings in guide succession and had disabled exercise of lawful statutory power and obstructed the due process of law by recidivist and indisciplined litigation. The petitioner’s misadventures must come to an end. The writ petition (WP No.11263/06) is wholly misconceived and is accordingly dismissed with exemplary costs of Rs.10,000/- (Rupees Ten thousand only) of which Rs.5,000/- shall be payable to the Municipal Corporation of Hyderabad and Rs.5,000/- to the petitioner in W.P.No. 14070 of 2006,(the 3rd respondent in this WP), within a period of thirty(30) days from the date of receipt of a copy of this order. In default of such payment of costs within the time stipulated, the Municipal Corporation and the petitioner in W.P.No. 14070/06 are at liberty to pursues appropriate proceedings for recovery of the amounts from the petitioner. Since the Municipal Corporation, statutory authority was prevented by the illegal and obstructive litigation ventures of the petitioner in W.P.No. 11263/06 from demolishing the structures illegally raised in the extent of 177 Sq.yds, the petitioner in W.P.No. 14070/06 could not derive the benefits of the law viz., removal of the illegal structures adjacent to such petitioner’s property and as a result suffered diminution of enjoyment of his property. Now W.P.No. 11263/06 has been dismissed herein and in view of the relief sought in W.P.No.14070/06, the respondent-Corporation is directed to forthwith and at any rate within 48 hours from the date of receipt of a copy of this order, take action pursuant to its notice bearing No. 1591/TP/SD/W1/MCH/2006, dated 5.6.2006 issued under Sec.405 of the Act against the construction in an extent of 177 Sq.Yds, made by the petitioner in W.P. No. 11263/06. In the result, W.P.No. 11263 of 2006 is dismissed with costs as above. W.P.No. 14070 of 2006 is allowed, but without costs in the circumstances. ------------------------------ Justice G.Raghuram 14.02.2008 PVSN/IBL