Andhra HC (Pre-Telangana)
S. Rukman Naik vs P. Anjani Prabha And Anr. on 29 July, 2004
Equivalent citations: 2004(4)ALD876
ORDER Dharma Rao Elipe, J.
1. This Memorandum of Contempt Case is filed under Sections 10 and 12 of Contempt of Courts Act to punish the respondents for violating the directions of this Court in CMP.No. 316 of 2002 in S.A. No. 14 of 2002, dated 14-1-2002 in the interest of justice.
2. Before proceeding with the contempt case, for proper appreciation of the factual matrix, respective pleadings of the parties may be relevant.
3. Petitioner is the owner and in possession of 729 sq.yards in Plot No. 77/19 of Yamuna Nagar Co-operative Society, Survey No. 102/3 of Hakimpet Village of Shaikpet Revenue Mandal, Hyderabad. In 1992, when the respondents tried to interfere with his peaceful possession over the said plot, he filed O.S. No. 1485 of 1992 on the file of the Court of VII Junior Civil Judge, City Civil Court, Hyderabad. As a counterblast, the respondents also filed O.S.No. 1686 of 1992 on the file of the same Court. Hence, both suits were clubbed and tried together. After full-fledged trial, the Trial Court decreed the suit of the petitioner and dismissed the suit of the respondents. Assailing the judgment and decree in O.S. No. 1485 of 1992, the respondents filed A.S. No. 194 of 1998 and A.S. No. 263 of 1998 against the judgment and decree in O.S. No. 1686 of 1992. The first appellate Court decreed both the appeals filed by the respondents. Questioning the judgment and decree in A.S. No. 194 of 1998 and A.S. No. 263 of 1998, the petitioner filed SA No. 14 of 2002 and SA No. 1175 of 2001 respectively. In SA No. 14 of 2002 an application in CMP No. 316 of 2002 was filed to restrain the respondent from interfering with his peaceful possession over the suit schedule property. This Court passed by order dated 4-1-2002 directed both parties to maintain status quo with regard to possession of land as on the date of order in CMP No. 316 of 2002 in SA No. 14 of 2002. The order in CMP No. 316 of 2002 was communicated telegraphically and through Court to the respondents.
4. Albeit, the respondents were claiming title over the property and claiming Plot No. 308-A of Sri Venkateswara Cooperative Society, Hyderabad, which is having claim over the land in Survey No. 403/1 of Shaikpet Village and Survey No. 102/1 of Hakimpet Village, petitioner filed LGC.No. 56 of 2002 in the Special Court constituted under the provisions of A.P. Land Grabbing (Prohibition) Act, Hyderabad against the respondents. Thereafter, the respondents in collusion with his brother demolished the compound wall raised around Plot No. 77/19 of Yamuna Nagar Housing Society in Survey No. 102/3 of Hakimpet Village of Shaikpet Revenue Mandal, Road No. 12, Banjara Hills, Hyderabad on 21-9-2002. He also lodged a complaint with the police to initiate action against the respondents for haying abused him in public in the name of his lambada caste.
5. It is necessary at this stage to refer to the role of the petitioner and his attitude and approach to the issue before the Court for a proper understanding of the nature of the proceedings instituted, his sole aim as well as the merit of his claim.
6. In LGC No. 56 of 2002, petitioner filed LA. No. 847 of 2002 for injunction against the respondents including other land grabbers but as the status quo orders were in subsistence against the respondents in CMP No. 316 of 2002 in SA No. 14 of 2002 and CMP No. 24534 of 2001 in SA No. 1175 of 2001 before this Court, he did not press for injunction against the respondents in CMP.No. 316 of 2002 in SA No. 14 of 2002 and moreover when IA.No. 847 of 2002 in LGC No. 56 of 2002 was filed the respondents Counsel took objection on the ground that the respondents are not interfering and are not raising any construction pursuant to orders passed by this Court in CMP No. 316 of 2002 in SA No. 14 of 2002.
7. When it was brought to the notice of the Special Court that the respondents started raising constructions taking advantage of summer vacation then the Special Court directed the other respondents in the above LGC not to raise any construction in the said plot and appointed Deputy Director of Survey and Land Records, Hyderabad as Commissioner to localize and identify Plot No. 308/A and 309/A of Venkateswara Co-operative Housing Society and Plot No. 77/19 of Yamuna Nagar Co-operative Society and directed the said Commissioner to state as to whether the Plot No. 308/A belongs to the respondents is located in Survey No. 102/1 or 102/3 ? The Commissioner has completed inspection and submitted his report on 22-8-2003. The findings of the Commissioner include that the physical location of the disputed properly correlates exactly to Plot Nos. 308 and 309 of Sri Venkateswara Co-operative Housing Society Limited and not with Plot No. 77/19 of Yamuna Nagar Co-operative Housing Building Society. It was also found that Plot No. 77/19 and Plot Nos. 308 and 309 of the respective societies do not overlap and in fact they are adjacent to each other. It was also recorded that the disputed property, which actually refers to Plot Nos. 308 and 309 of Sri Venkateswara Society gets localized within old Survey No. 102/3 of Hakimpet Village. The petitioner submitted his objections to the Commissioner's report and the Special Court posted the matter along with main LGC.No. 56 of 2002. Further the injunction application was dismissed on the ground that the petitioner has not made out any prima facie case against the Respondents 1 to 4 from proceeding with the construction and accordingly the said application was dismissed.
8. In the meanwhile, taking advantage of endorsement made in I.A. No. 847 of 2002, the respondents started construction in his Plot No. 77/19 situate in Survey No. 102/3 of Hakimpet Village of Shaikpet Revenue Mandal, Road No. 12, Banjara Hills, Hyderabad, claiming it to be Plot No. 308/A of Sri Venkateswara Co-operative Housing Society by styling it as though it's H.No. 8-2-293/82/L/308-A is allotted to the building and claiming that his plot is situated in Survey No. 102/1.
9. Petitioner submits that the respondents started raising construction and has dug trenches for setting up pillars in his plot. As such, he sent a legal notice to the respondents on 8-8-2003 stating that they have illegally entered into possession over his plot i.e., the suit schedule property and directed them to stop illegal construction. In spite of it, the respondents are going ahead with their illegal activities by digging trenches in the suit schedule property and constructing the building illegally. If the respondents are not restrained from raising any further constructions in the suit schedule property pending disposal of the contempt case, he will suffer irreparable loss and prayed to restrain the respondents from raising any constructions in Plot No. 77/19 admeasuring 729 sq.yards of Yamuna Nagar Co-operative Society, Survey No. 102/3 of Hakimpet Village of Shaikpet Revenue Mandal, Hyderabad, and to punish the respondents for intentionally and deliberately violating the orders passed by this Court in CMP.No. 316 of 2002 in SA.No. 14 of 2002 dated 4-1-2002 and CMP.No. 24534 of 2001 in SA.No. 1175 of 2001, dated 21-12-2001 respectively.
10. On 14-8-2003, this Court ordered notice before admission and directed to post the contempt case on 22-8-2003. On 12-9-2003 an application under Order 26, Rule 9 read with Section 151 of the Code of Civil Procedure was filed to appoint an Advocate-Commissioner to note down the physical features viz., stage of construction, material lying in the spot and file report into the Court. By order dated 12-9-2003 in CMP No. 1024 of 2003, this Court allowed the said application and appointed Ms. W.V.S. Rajeswari, as Advocate-Commissioner to note down the physical features, the stage of construction, if any, and the material lying at the spot if any and shall file her report into the Court on or before 22-9-2003 after issuing notice to both the parties and also after receiving work memos, if any, which may be filed by the respective parties in this regard. Thereafter, the Commissioner after conducting inspection submitted her report on 26-9-2003 and on 19-12-2003 this Court directed to furnish copy of the Commissioner's report to the parties.
11. Be that as it may, as seen from the record, it is significant that a request has been made when the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad refused to vacate the temporary injunction passed in I.A. No. 847 of 2003, I.A. No. 568 of 2003 and I.A. No. 570 of 2003 in LGC No. 56 of 2002. Assailing the orders in I.A. No. 847 of 2003, I.A. No. 568 of 2003 and I.A. No. 570 of 2003 in LGC No. 56 of 2002, the petitioner filed CRP No. 5451 of 2003, CRP No. 6249 of 2003 and CRP No. 6650 of 2003 to revise the order dated 25-9-2003 made in I.A. No. 847 of 2003, I.A. No. 568 of 2003 and I.A. No. 570 of 2003 in LGC No. 56 of 2002 on the file of the Court of Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad.
12. When the above CRPs were listed before the Court of the Hon'ble the Chief Justice, it is submitted that two second appeals alongwith contempt case are connected with these CRPs. Therefore, the second appeals are withdrawn from the Court of the learned Single Judge and tagged to the CRPs., which were listed before the Court of the Hon'ble the Chief Justice. After tagging the second appeals, the Division Bench of this Court comprising of the Hon'ble the Chief Justice and Hon'ble Ms. Justice G. Rohini heard the matter and resultantly a common order was passed in all the three CRPs, which were dismissed and the Division Bench found that a learned Judge of this Court can hear this matter and directed the Registry to list the two second appeals along with this contempt case before learned Judge.
13. In the meanwhile, the petitioner filed C.A.No. 113 of 2004 in CC.No. 962 of 2003 under Order 26, Rule 9 read with Section 151 of CPC seeking to appoint an Advocate-Commissioner/re-entrust the warrant issued in C.A.No. 1024 of 2004 to inspect the site in Plot No. 77/19, Yamuna Nagar Co-operative Society for noting down the stage of construction, physical features of site, pending disposal of the contempt case.
14. In the counter-affidavit, the second respondent submitted that the petitioner by order dated 4-1-2002 in SA No. 14 of 2002 obtained status quo in respect of possession only as on the date of order, on the allegation that we are making construction by violating the above order filed CC No. 962 of 2003. In the above contempt case, he filed his counter wherein he submitted that himself and the first respondent with a view to make construction of a residential house in accordance with the building permission granted by the Hyderabad Municipal Corporation, made construction of the foundation work as well as raised pillars. This Court appointed an Advocate-Commissioner to inspect the site and report with regard to the construction made by him. The Advocate-Commissioner by the report dated 24-9-2003 reported that himself and the first respondent are in possession of the property. The plot is enclosed by a compound wall with a municipal number. The Commissioner further noticed that the gate was locked and there were preparations for erection of pillars. The pillars were raised up to the height of three feet from the basement. The Commissioner observed in the report that stones are laying in the basement, cement bags are stored, cent ring plates are fixed and lot of gravel stones and other construction material is stacked at the suit site. It is submitted that he filed petition for vacating the stay orders granted in SA No. 14 of 2002 and the matter is pending before this Court. It is submitted that he made all preparations for completion of construction. He procured sufficient cement, steel, sand and other construction material. He paid huge amount to the labour. All the material, which was procured by him costing about Rs. five to six lakhs laying outside and there was no proper security. The material was being taken away and some of the material, which was perishable was getting damaged. The labour engaged by him was demanding that they will take up another work and that the amount of Rs. two lakhs paid towards their wages will not be refunded. In the above circumstances, himself and the first respondent in a bona fide manner made some further constructions only to avoid irreparable loss and damage and not with an intention to violate the undertaking given before this Court. In any event respondents bind themselves to the undertaking that they shall claim no equities in respect of the construction made by them in the said plot.
15. Considering the rival contentions raised by both parties, earlier this Court, by order dated 12-9-2003 in CMP No. 1024 of 2003, appointed Ms. W.V.S. Rajeswari, as Advocate-Commissioner has once again appointed her as Advocate-Commissioner and re-entrusted the warrant to her allowed and allowed CA No. 113 of 2004 on 26.2.2004.
16. Admittedly, an Advocate-Commissioner was appointed by this Court by order dated 12-9-2003 in CMP.No. 1024 of 2003 and the Advocate-Commissioner so appointed, having inspected the site submitted his report, which is pending consideration. While the said report is pending consideration, is it proper on the part of this Court to appoint Advocate-Commissioner for the second time for inspecting the site and submitting his report in respect of which the Advocate Commissioner appointed on the first occasion had submitted his report?
17. Before parting with the case on hand, let us examine the Procedure of Commissioner.
Order 26, Rule, 10 of CPC - Procedure of Commissioner Rule 10 (1): The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
Rule 10 (2) Report and depositions to be evidence in suit: The report of the Commissioner and the evidence taken by him (but not the evidence without the report shall be evidence in the suit and shall form part of the record; but the Court, or with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
Rule 10 (3) Commissioner may be examined in person: Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
18. After examining the above provisions, it appears that this Court has allowed CA No. 113 of 2004 on 26-2-2004 and appointed Ms. W.V.S. Rajeswari, as Advocate-Commissioner and re-entrusted the warrant to her for the purpose of noting down the stage of construction/physical features of the site in Plot No. 77/19, Yamuna Nagar Co-operative Society, which is the plaint scheduled property and any other relevant property which may be shown by the objectors as the case may be and file a report within a fortnight. However, the appointment of second commissioner is not in consonance with Order 26, Rule 10(3) of CPC. The learned Judge of this Court ought not to have re-entrusted the warrant to Ms. W.V.S. Rajeswari, Advocate-Commissioner, when her earlier report is pending consideration. But taking into consideration the surrounding circumstances, I do not want to make much comment on this aspect as to what had transpired before the learned Judge of this Court to make such appointment and I left it open this issue to the discretion of the learned Judge who re-entrusted the warrant to her.
19. Now coming to the main complaint in the contempt case is that in spite of status quo order passed by this Court on 4-1-2002 in CMP No. 316 of 2002 in SA No. 14 of 2002 the respondents are going ahead with the construction activity in the plot of the petitioner and they have violated the said order. It is an admitted case of the petitioner that he filed SA No. 14 of 2002 against the judgment and decree dated 14-9-2001 in A.S. No. 194 of 1998 on the file of the Court of DC Additional Chief Judge, City Civil Court, Hyderabad {Fast Track Court} reversing the judgment and decree in O.S. No. 1485 of 1992 on the file of the Court of VII Junior Civil Judge, City Civil Court, Hyderabad. In the meanwhile, the petitioner has resorted parallel proceeding before the Special Court constituted under the A.P. Land Grabbing (Prohibition) Act, Hyderabad and filed LGC No. 56 of 2002 on the ground that the respondents in collusion with his brother came over to the petition schedule land and demolished the compound wall raised around Plot No. 77/19 of Yamuna Nagar Housing Society in Survey No. 102/3 of Hakimpet Village of Shaikpet Revenue Mandal, Road No. 12, Banjara Hills, Hyderabad on 21-9-2002 and grabbed about 60 sq.yards out of 729 sq.yards of petitioner's plot. He also lodged a complaint with the police to initiate action against the respondents for having abused him in public in the name of his lambada caste but the said complaint did not yield any result. In those circumstances, petitioner filed an application under Order 39, Rules 1 and 2 of CPC seeking injunction against the respondents including other land-grabbers and the Special Court registered the same as I.A. No. 847 of 2002 in LGC No. 56 of 2002. When the petitioner is in possession of the aforesaid land and the respondents have encroached over his possession with an intention to grab the land as alleged, the petitioner ought to have brought the matter to the notice of this Court by way of filing contempt case, as it was done now but it is not known under what circumstances the petitioner approached the Special Court when the second appeals are pending before this Court in respect of the same extent of land with the same subject-matter. Moreover, it is pertinent to note here that invoking the jurisdiction of the Special Court the petitioner has made some other persons as party respondents along with these respondents and filed LGC No. 56 of 2002 and I am unable to understand under what circumstances the Special Court has entertained the LGC when the second appeals are pending consideration before this Court. It is a matter to be decided and gone into at the final disposal of second appeals.
20. While disposing the CRP No. 5451 of 2003, CRP No. 6249 of 2003 and CRP No. 6650 of 2003, the Division Bench, comprising of the Hon'ble the Chief Justice and Ms. Justice G. Rohini, one important thing has to be noted from the common order in the above CRPs is that the findings of the Commissioner include that the physical location of the disputed property correlates exactly to Plot Nos. 308 and 309 of Sri Venkateswara Co-operative Housing Society Limited and not with Plot No. 77/19 of Yamuna Nagar Co-operative Housing Society. It was also found that Plot No. 77/19 and Plot Nos. 308 and 309 of the respective societies do not overlap and in fact they are adjacent to each other. The Division Bench further observed that there is a serious dispute even with regard to identity and localization of the plots in question. As a matter of fact, the petitioner himself pleads that there is overlapping of land pertaining to the two societies. The claims of the respective parties have to be established only in the main LGC on the basis of the evidence adduced by both the parties. However, as on today the fact remains that admittedly the petitioner is not in possession of the plot to which he is claiming title. It is not in dispute that the Respondents 1 to 4 are in possession. However, the application for injunction was pressed only against Respondents 1 and 4 alleging that they have been granted the sanctioned plan in the year 2002 itself and the building permission in 2003 and by virtue of the same they are making constructions on the land in question. There is nothing on record to show that the said building permission is under challenge. In the circumstances, the Division Bench observed that the respondents are in possession and having valid building permission and therefore the respondents cannot be restrained from making constructions on the land in question. However, it is made clear that the constructions, if any, made by the respondents on the land in question shall be subject to the result of the LGC and that they shall not claim any equities in the event of the LGC being allowed in favour of the petitioner.
21. In view of the foregoing facts and circumstances, the Division Bench has taken note of the status quo order passed by this Court in S.A.14 of 2002 when CA.No. 113 of 2004 was filed by the petitioner in the contempt case to appoint Advocate-Commissioner and re-entrust the warrant to Ms. W.V.S. Rajeswari, who was earlier appointed as Advocate-Commissioner to note down the physical features. Without passing any order on the report of first Advocate-Commissioner, this Court ought not to have considered CA No. 113 of 2004 for re-entrusting the warrant to Ms. W.V.S. Rajeswari, Therefore, the order passed in CA No. 113 of 2004 is not in consonance with Order 26, Rule 10(3) of the Code of Civil Procedure but also against the order passed by the Division Bench in a batch of CRPs filed by the petitioner. With great respect to the orders passed by the Division Bench of this Court and the foregoing reasons mentioned hereinabove, I have no speck of doubt to hold that the petitioner has approached two different forums in a parallel way to obtain orders imperturbably to suit and go well with his convenience by making wild allegations against the respondents. This case is a prime example of how a judicial process is being misused by unscrupulous litigants. I am sorry to note that in spite of the glaring facts of this case, earlier this Court has succumbed to an unjust plea of the petitioner who filed the application under Order 26, Rule 9 read with Section 151 of CPC seeking to appoint an Advocate-Commissioner/re-entrust the warrant issued in C.A. No. 1024 of 2004 to inspect the site in Plot No. 77/19, Yamuna Nagar Cooperative Society for noting down the stage of construction, physical features of site, pending disposal of the contempt case, when the report of the first Advocate-Commissioner is pending consideration, this Court allowed CA No. 113 of 2004 for the second time and appointed the same Advocate Commissioner and re-entrusted the warrant. It is nothing but with an attempt to curb such an abuse of the process of Court by unscrupulous litigants, I intend recording the facts of this case somewhat elaborately, albeit, as stated above, otherwise it may not be necessary to do so.
22. In the aforesaid background, I do not see any reason that the respondents have committed any violation of the direction given by this Court as aforesaid and in my considered opinion the inevitable conclusion is that the contempt case is sans merit and deserves dismissal.
23. In the result, the contempt case is accordingly dismissed with exemplary costs.