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2010 DIGILAW 467 (AP)

Tandra Venkateshwar Rao v. Jagtial Municipality

2010-06-16

L.NARASIMHA REDDY

body2010
Judgment The petitioner owns landed property in Jagtial. Initially, he constructed a cinema hall thereon. Thereafter, he submitted an application in the year 1979 to the Municipality with a request to accord permission to construct a shopping complex abutting the road. The permission was accorded on 06/02/1979 for construction of 11 shops with one room behind each shop. The petitioner commenced the construction, however, he could not complete the same within the stipulated time. He submitted an application together with approved plan on 02/07/1983 with a request to grant permission to complete the construction of the ground floor as per the plan sanctioned on 06/02/1979 and to construct first floor thereon. The respondents rejected the same. The petitioner filed O.S.No.150 of 1983 in the Court of District Munsif, Jagtial, for the relief of mandatory injunction in the form of direction to the respondents to accord permission for completion of the construction of the ground floor and construction of first floor. After contest, the suit was decreed on 04/08/1984. A.S.No.5 of 1984 filed by the respondents in the Court of Subordinate Judge, Jagtial, was dismissed on 29/03/1985. When the respondents did not do the needful, the petitioner filed E.P.No.2 of 1988. The Executing Court passed an order on 19/02/1988 permitting the petitioner to make construction of first and ground floor, as per the decree. The petitioner has since completed the construction. The respondents issued notice dated 07/09/2007 stating that the petitioner made the construction without obtaining permission and required him to demolish the portion of the building. The petitioner got issued a notice in reply thereto. Since there was a threat of demolition of the premises he filed W.P.No.20258 of 2007 questioning the notice dated 07/09/2007. The writ petition was disposed of directing the respondents not to take any action without giving opportunity to the petitioner, to explain. The respondents issued a notice dated 29/09/2007 alleging that the petitioner made construction without leaving the set back of 1.50 mts., as required under the building rules and the construction is unauthorized. The petitioner replied to the same. Another notice was issued on 09/10/2007 by the respondents alleging that the petitioner constructed the ground floor without leaving 3.00 mts. setback on the front side from the center of the road. A reply was submitted on 11/10/2007. The petitioner replied to the same. Another notice was issued on 09/10/2007 by the respondents alleging that the petitioner constructed the ground floor without leaving 3.00 mts. setback on the front side from the center of the road. A reply was submitted on 11/10/2007. A third notice was issued on 16/10/2007 by the respondents stating that the petitioner encroached portion of the road to the extent of 0.7 mts. On the next day, another notice was issued on 17/10/2007 stating that the reply submitted by the petitioner on 11/10/2007 is not convincing. It is in this context, that the petitioner approached this Court assailing the series of notices. It is stated that the respondents went on searching one ground or the other, to harass the petitioner though the construction was made strictly in accordance with the permission granted in 1979, and the decree passed in O.S.No.150 of 1983. The respondents filed a counter-affidavit opposing the writ petition. It is stated that though there exits a decree in his favour, the petitioner submitted a separate plan on 19/03/1986 duly indicating that a setback of 10 ft. would be left on the first floor. It is stated that permission was accorded for that on 31/03/1986, but the construction was made in deviation thereof. Heard Sri S.Srinivas Reddy, learned counsel for the petitioner, and Sri N.Subba Reddy, learned Senior Counsel, appearing for the respondents. It is a matter of record that the petitioner was accorded permission to construct ground floor, way back in the year 1979. Though the construction was commenced in time, it could not be completed within the stipulated time. In the year 1983, he approached the respondents with a request, not only to permit him to complete the unfinished structure of the ground floor but also to construct first floor. By stating certain reasons, the respondents rejected the application. The petitioner approached the Civil Court by filing a suit and the same was decreed. The appeal preferred by the respondents was dismissed. Once the appeal was dismissed and the decree became final, the respondents were under obligation to accord permission for completion of ground floor in accordance with the plan sanctioned in 1979 and for construction of the first floor. However, they remained oblivious. This prompted the petitioner to file Execution Petition. The Executing Court permitted the petitioner complete the construction. Accordingly, the petitioner completed the same. However, they remained oblivious. This prompted the petitioner to file Execution Petition. The Executing Court permitted the petitioner complete the construction. Accordingly, the petitioner completed the same. Series of notices came to be issued by the respondents with short intervals. There is hardly inconsistency in them. It was not even alleged that the petitioner deviated from the plan sanctioned in 1979. The first floor was just a vertical extension of the ground floor, and even that is on the basis of the decree passed by the Court. In searching for the grounds, to find fault with the construction, made in accordance with the decree, the respondents virtually violated the decree and committed contempt of Court. The vindictiveness on their part is evident on the face of it. A notice was issued and once the basis was found to be wrong, they searched another. This Court had to summon the record, appoint the Commissioner and even direct the appearance of the Commissioner. The whole episode is in a very bad taste and reflects gross indiscipline and lack of regard on the part of the respondents to the decree passed by the Civil Court. In S.Nagaraj v. State of Karnataka 1993 Supp (4) SCC 595, the Supreme Court held: “Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper.” This Court takes a serious exception to the attitude exhibited by the respondents. To a specific question, put to the learned Senior Counsel as to whether any deviation was noticed on the part of the petitioner vis-à-vis the decree passed by the trial Court in O.S.No.150 of 1983, he said, after consulting the respondents, that no such deviations are found. Therefore, the series of notices issued by the respondents cannot be sustained in law. Therefore, the series of notices issued by the respondents cannot be sustained in law. Hence, the Writ Petition is allowed and the notices impugned therein are set aside. The respondents are warned not to harass the petitioner with similar notices. There shall be no order as to costs.