Andhra HC (Pre-Telangana)
Cherukuri Seetharamamma vs Dr.C.R.P.S.Krishna And Others on 15 November, 2016
Bench: Sanjay Kumar, Anis
THE HONBLE SRI JUSTICE SANJAY KUMAR AND THE HONBLE SMT. JUSTICE ANIS CIVIL REVISION PETITION NO.3659 OF 2016 15-11-2016 Cherukuri Seetharamamma... Petitioner Dr.C.R.P.S.Krishna and others... Respondents Counsel for the petitioner: Sri Vedula Srinivas Counsel for respondents 1 and 2: Sri M.R.S. Srinivas Counsel for the 3rd respondent: Sri N. Praveen Kumar <Gist: >Head Note: ? CASES REFERRED: 1. 1995 (1) ALD 1 (FB) 2. (2000)7 SCC 695 3. (2003) 6 SCC 675 THE HONBLE SRI JUSTICE SANJAY KUMAR AND THE HONBLE SMT JUSTICE ANIS CIVIL REVISION PETITION NO.3659 OF 2016 O R D E R
This civil revision petition under Article 227 of the Constitution arises in rather peculiar circumstances. It would therefore be necessary to recount the chequered history preceding it.
W.P.No.33071 of 2014 was filed before this Court by Cherukuri Seetharamamma, a resident of Ganesh Basthi, Kothagudem Town, Khammam District, aggrieved by the alleged illegal construction being made by Dr.C.R.P.S.Krishna and his wife, Dr.K.Padmavathi, adjacent to her residential building for running a hospital in the name and style of Sri Lalitha Padmavathi Nursing Home. By way of the aforestated writ petition, Cherukuri Seetharamamma assailed the proceedings dated 10.10.2014 of Kothagudem Municipality, whereby it practically refused to take action, on the ground that the same were contrary to the directions given by this Court in W.P.Nos.9869 and 29028 of 2009.
Cherukuri Seetharamamma initially filed W.P.No.9869 of 2009 before this Court complaining of the inaction of Kothagudem Municipality in stopping the construction, being made without a sanctioned plan, by Dr.C.R.P.S.Krishna and Dr.K.Padmavathi. Kothagudem Municipality then issued proceedings dated 26.05.2009 granting permission to Dr.C.R.P.S.Krishna and Dr.K.Padmavathi to construct a residential building comprising ground and first floors. Dr.C.R.P.S.Krishna and Dr.K.Padmavathi thereupon submitted application dated 03.12.2009 to the Municipality requesting permission to construct a second floor. This application was rejected on 09.12.2009 on the ground that there were setback violations in the construction already made in the ground and first floors. Another ground of rejection was that 10% of the plinth area had not been mortgaged for constructing a second floor. Aggrieved thereby, Dr.C.R.P.S.Krishna and Dr.K.Padmavathi filed W.P.No.29028 of 2009 before this Court challenging the rejection of their application for constructing a second floor vide proceedings dated 09.12.2009 and asserting a right to make constructions in the light of the proceedings dated 18.05.2009 of the Regional Deputy Director, Town and Country Planning, Warangal.
W.P.No.9869 of 2009 was disposed of on 18.07.2014 directing Kothagudem Municipality to inspect the premises of Dr.C.R.P.S.Krishna and Dr.K.Padmavathi and see whether the constructions made by them were in accordance with the building permission dated 26.05.2009. This Court also directed that in the event there were violations, necessary action should be taken in accordance with law within three months from the date of the inspection, duly giving an opportunity of hearing to Cherukuri Seetharamamma, Dr.C.R.P.S.Krishna and Dr.K.Padmavathi.
W.P.No.29028 of 2009 was disposed of separately by order dated 23.07.2014 giving liberty to Dr.C.R.P.S.Krishna and Dr.K.Padmavathi to make a representation with regard to the alleged violation in the setbacks and the same was directed to be considered by the municipal authorities in the light of the guidelines laid down by this Court in THREE ACES V/s. MUNICIPAL CORPORATION OF HYDERABAD and to pass appropriate orders thereon and also as to mortgage of 10% area for constructing a second floor.
Kothagudem Municipality issued notice dated 27.09.2014 to both parties calling upon them to submit their representations and fixed the date of hearing on 07.10.2014. Cherukuri Seetharamamma filed her objections stating to the effect that the building had been constructed by Dr.C.R.P.S.Krishna and Dr.K.Padmavathi illegally and in violation of the required setbacks. She also pointed out that a Maternity and General Nursing Home was being run in the said building though the permission granted was for a residential building. Dr.C.R.P.S.Krishna and Dr.K.Padmavathi also submitted their statements. Kothagudem Municipality thereupon issued proceedings dated 10.10.2014 stating that as Dr.C.R.P.S.Krishna and Dr.K.Padmavathi had already laid a second floor slab and it was assessed to property tax, in addition to the ground and first floors, the question of considering grant of permission for construction of a second floor did not arise as it was already in existence.
It was these proceedings which were subjected to challenge by Cherukuri Seetharamamma in W.P.No.33071 of 2014.
Kothagudem Municipality filed a counter in the said case stating that Dr.C.R.P.S.Krishna and Dr.K.Padmavathi had initially applied for permission to construct a building comprising ground plus two floors but thereafter, they applied for construction of a building comprising only ground and first floors. This permission was granted on 26.05.2009. The Municipality further admitted that Dr.C.R.P.S.Krishna and Dr.K.Padmavathi made constructions in deviation of the approved plan and when they applied for construction of a second floor on 03.12.2009, it was rejected on 09.12.2009. Thereafter, as per the directions of this Court in W.P.Nos.9869 and 29028 of 2009, both parties were given an opportunity of hearing and the proceedings dated 10.10.2014 were issued. The Municipality stated that legal action was being initiated by issuing notices to Dr.C.R.P.S.Krishna and Dr.K.Padmavathi under the provisions of the Andhra Pradesh Municipalities Act, 1965 (for brevity, the Act of 1965) for unauthorized construction of a third floor and steps were also being initiated to prosecute them under Section 340 of the Act of 1965.
Dr.C.R.P.S.Krishna and Dr.K.Padmavathi filed a counter in the case admitting the fact that, though they had permission to construct a building with ground and first floors, they had not only constructed a second floor but also a third floor without permission. They contended that the construction made by Cherukuri Seetharamamma was also without a sanctioned plan and that her construction had not been regularized.
Taking note of the facts and the aforestated pleadings of the parties, the learned single Judge allowed the writ petition with costs vide order dated 16.12.2014, observing that the second and third floors were constructed without permission and the building which was to be used for residential purpose was admittedly being put to use to run a Nursing Home. The learned single Judge took note of the fact that Kothagudem Municipality did not even look into the issue of violation of the setbacks in the construction of the ground and first floors and no exercise was undertaken to determine the status of the second floor, which was admittedly constructed without permission. The learned single Judge deprecated the approach of Kothagudem Municipality in passing the impugned proceedings dated 10.10.2014, despite recognizing that constructions had been made by Dr.C.R.P.S.Krishna and Dr.K.Padmavathi in deviation of the approved plan and in constructing additional floors without any permission whatsoever. The learned single Judge therefore held that Kothagudem Municipality had abdicated its responsibility in enforcing the provisions of the Act of 1965 and concluded that as Dr.C.R.P.S.Krishna and Dr.K.Padmavathi admitted that they had made constructions in violation of the sanctioned plan and had also converted a residential building into a commercial one, the said illegal construction could not be allowed to stand. The learned single Judge accordingly directed Kothagudem Municipality to demolish the second and third floors and also the portions of the ground and first floors which were not in conformity with the sanctioned plan and in violation of required setbacks. The Municipality was directed to ensure that the ground and first floors were put to use only for residential purpose and not a non-residential purpose like a Nursing Home. Taking note of the gross dereliction of duty in implementation of the provisions of the Act of 1965, the learned single Judge imposed costs of Rs.5,000/- upon Kothagudem Municipality. Costs of Rs.5,000/- each were alsoimposed upon Dr.C.R.P.S.Krishna and Dr.K.Padmavathi for making illegal constructions.
Aggrieved thereby, Dr.C.R.P.S.Krishna and Dr.K.Padmavathi filed W.A.No.1 of 2015. This writ appeal was disposed of by a Division Bench, comprising the Honble The Chief Justice and one of us (SK,J), on 04.02.2015. The Division Bench took note of the fact that the learned single Judge had passed the order under appeal taking note of the inaction on the part of Kothagudem Municipality in initiating steps against the appellants with regard to their unauthorized construction. The Division Bench also noted that the appropriate criminal Court had already taken cognizance of the offence under the Act of 1965 in relation to this unauthorized construction and penalty had also been imposed. However, having heard the learned counsel for the parties, the Division Bench opined that the learned single Judge, having correctly observed that there was no authorization for making the subject constructions, ought not to have given a direction to the Municipality with regard to demolition. The Division Bench categorically affirmed that it was not interfering with the observations and findings of the learned single Judge but held that it was for the Municipality to take action for demolition of the building if it was unauthorizedly constructed. The order under appeal was accordingly modified to the effect that Kothagudem Municipality should take steps in accordance with law with regard to the unauthorized construction and action in this regard must be completed within eight weeks from the date of communication of the order. The Division Bench concluded that the observations made by the learned single Judge or itself would not be influencing or binding factors for the Municipality to take a decision for demolition of the building. The Division Bench further clarified that payment of penalty would not give any weightage or equity in favour of Dr.C.R.P.S.Krishna and Dr.K.Padmavathi.
C.C.No.973 of 2015 was instituted by Cherukuri Seetharamamma alleging willful disobedience to the aforestated order dated 04.02.2015 passed in W.A.No.1 of 2015. She asserted therein that despite her representations dated 25.02.2015 and 13.04.2015 requesting Kothagudem Municipality to take action in accordance with the said order, no steps were initiated and in the meanwhile, Dr.C.R.P.S.Krishna and Dr.K.Padmavathi continued with further constructions on the third floor.
When the contempt case was taken up for hearing on 29.01.2016, Sri N.Praveen Kumar, learned counsel appearing for the Commissioner, Kothagudem Municipality, who was impleaded eo nominee as the 1st respondent in the contempt case, informed the Court that after the order dated 04.02.2015 was passed in W.A.No.1 of 2015, the Municipality issued notices to Dr.C.R.P.S.Krishna and Dr.K.Padmavathi, arrayed as respondents 2 and 3 in the contempt case, under Sections 228 (1) and (2) of the Act of 1965. However, Dr.C.R.P.S.Krishna and Dr.K.Padmavathi then filed O.S.No.100 of 2015 before the learned Principal Junior Civil Judge, Kothagudem, wherein they obtained a status quo order and the Municipality could take no further action thereafter.
Sri Vedula Srinivas, learned counsel appearing for Cherukuri Seetharamamma, informed the Court that she had filed an application for intervention in the said suit and that the Municipality had also filed its counter opposing the interlocutory relief sought by Dr.C.R.P.S.Krishna and Dr.K.Padmavathi in the suit.
Taking note of these facts, the Division Bench hearing the contempt case directed the learned Principal Junior Civil Judge, Kothagudem, to decide I.A.No.230 of 2015 in O.S.No.100 of 2015, wherein the status quo order was subsisting, within a period of two weeks. However, when the matter was taken up on 11.03.2016, the Division Bench was informed that despite the order dated 29.01.2016 passed in the contempt case being placed before him, the learned Principal Junior Civil Judge, Kothagudem, had not disposed of the I.A. The Division Bench therefore called for an explanation from the learned Principal Junior Civil Judge, Kothagudem, in this regard. The learned Principal Junior Civil Judge, Kothagudem, submitted his explanation for non-disposal of the I.A. within the time frame fixed by this Court, under letter dated 24.03.2016. He also sought further time for disposal of the I.A. Thereafter, under letter dated 07.04.2016, the learned Principal Junior Civil Judge, Kothagudem, informed the Registry that he had disposed of I.A.No.230 of 2015 in O.S.No.100 of 2015 on 07.04.2016. When the contempt case was taken up for hearing on 08.07.2016, the Division Bench was informed that the order of status quo had been made absolute. The Registrar (Judicial) of this Court was accordingly directed to procure the order dated 07.04.2016 passed by the learned Principal Junior Civil Judge, Kothagudem. A copy of the said order was placed before the Division Bench on 22.07.2016 and the following docket order was passed:
As per our order dated 08.07.2016, order dated 07.04.2016 passed in I.A.No.230 of 2015 in O.S.No.100 of 2015 is placed before us.
Learned counsel for petitioner, in view of peculiar facts and circumstances of case, seeks liberty to file Civil Revision Petition under Article 227 of the Constitution of India directly in this Court against the said order.
Liberty as prayed is granted. It is however made clear that the Civil Revision Petition will be considered strictly on merits in accordance with law and after granting an opportunity of being heard to the respondents. Once the Civil Revision Petition is filed, it is open to the petitioner to apply for tagging of both the matters for hearing together.
Stand over to 29.07.2016.
It is pursuant to the aforestated order that the present civil revision petition has been filed by Cherukuri Seetharamamma before this Court under Article 227 of the Constitution assailing the order dated 07.04.2016 passed by the learned Principal Junior Civil Judge, Kothagudem, in I.A.No.230 of 2015 in O.S.No.100 of 2015.
Heard Sri Vedula Srinivas, learned counsel for Cherukuri Seetharamamma, the petitioner; Sri M.R.S.Srinivas, learned counsel for Dr.C.R.P.S.Krishna and Dr.K.Padmavathi, respondents 1 and 2 in the revision; and Sri N.Praveen Kumar, learned counsel for Kothagudem Municipality, the 3rd respondent in the revision.
Perusal of the order under revision reflects that the orders passed by this Court in W.P.No.33071 of 2014, W.A.No.1 of 2015 and the docket orders passed in C.C.No.973 of 2015 were placed on record and were marked as exhibits. The notices issued by Kothagudem Municipality were also marked in evidence.
The learned Principal Junior Civil Judge, Kothagudem, was dealing with an application filed under Order 39 Rules 1 and 2 C.P.C., whereby Dr.C.R.P.S.Krishna and Dr.K.Padmavathi sought a temporary injunction restraining Kothagudem Municipality from proceeding against the illegally constructed building on the basis of the provisional order dated 18.04.2015 issued under Sections 217 and 228 of the Act of 1965, till the disposal of the suit. Having extracted the contents of the affidavit filed in support of the I.A. at length, the learned Judge observed that the petitioners in the I.A., Dr.C.R.P.S.Krishna and Dr.K.Padmavathi, had been permitted to file an additional affidavit and having done so, they pointed out therein that the Government of Telangana had issued G.O.Ms.No.152 dated 02.11.2015 with regard to regularization of unauthorized constructions on payment of fee and that they had applied for regularization of their unauthorized construction, which was the subject the matter of the writ petition, writ appeal, contempt case and the suit, by paying Rs.10,000/- as required. The learned Judge thereafter extracted the contents of the counters filed by Kothagudem Municipality and Cherukuri Seetharamamma at length. The learned Judge then noted that though no oral evidence had been adduced, Exs.P1 to P23 had been marked in evidence by Dr.C.R.P.S.Krishna and Dr.K.Padmavathi while Cherukuri Seetharamamma marked Exs.R1 and R2.
The point for consideration was framed by the learned Judge:
Whether the petitioners are entitled for grant of temporary injunction in their favour restraining the 1st respondent/D.1, and its subordinates from in any way proceed further against the petition schedule property on the basis of the provisional order dated 18-04-2015 issued by the 1st respondent Municipality under sections 217 and 228 of the A.P. Municipalities Act, pending disposal of the main suit.?
The learned Judge noted that the suit had been filed for a perpetual injunction restraining the Municipality from taking further action against the suit schedule property on the basis of the provisional order dated 18.04.2015, while the I.A. was filed for a temporary injunction restraining the Municipality from proceeding further against the said property on the basis of the provisional order dated 18.04.2015, pending disposal of the suit. The learned Judge then set out the details of all the documentary evidence marked before him and the arguments advanced by the learned counsel appearing for the parties. The learned Judge found favour with the contention of the petitioners in the I.A. that, with regard to the deviations and unauthorized construction made by them, they had been levied with penalty to the tune of Rs.5,75,560/- in C.C.No.1174 of 2014 on the file of the learned I Additional Judicial Magistrate of First Class, Kothagudem, and that they could not be visited with legal action twice on the same cause of action, as it is barred by Section 26 of the General Clauses Act, 1897. The learned Judge observed that, having received the penalty amount towards deviations and unauthorized construction, whether the provisional order dated 18.04.2015 could have been issued is a mixed question of fact and law and that it could be decided only after due trial.
The learned Judge further found favour with the plea of the petitioners in the I.A. that they had applied for regularization of their unauthorized construction under G.O.Ms.No.152 dated 02.11.2015 issued by the Government of Telangana and noted that the Kothagudem Municipality had not made out a case that they were not entitled to such regularization. As the said application for regularization was pending with the authorities, the learned Judge opined that it would be appropriate to restrain the Municipality from initiating action for demolition of the construction, as the petitioners in the I.A. would otherwise suffer irreparable loss in the event they were ultimately held entitled to such regularization. It is on the strength of this reasoning that the learned Judge held that the petitioners in the I.A. had made out a prima facie case along with balance of convenience in their favour and concluded that in the event the Municipality was permitted to proceed pursuant to the provisional order dated 18.04.2015, they would suffer irreparable loss. The learned Judge accordingly granted a temporary injunction restraining Kothagudem Municipality from in any way proceeding further on the basis of the provisional order dated 18.04.2015.
Bare perusal of the order makes it clear that the learned Principal Junior Civil Judge, Kothagudem, did not even bother to properly read and understand the orders passed by this Court in the writ petition and the writ appeal. Further, G.O.Ms.No.152 dated 02.11.2015 was not even made part of the record and there is no indication of the learned Judge having perused the same to examine as to whether it had applicability to the illegal and unauthorized construction made by the petitioners in the I.A. All the more so, as all the orders passed by this Court in relation thereto were long before the promulgation of the said G.O. and as a Division Bench had already confirmed the findings of a learned single Judge of this Court that the said illegal construction warranted demolition. The only modification made by the Division Bench was to the effect that the procedure to be followed in this regard should be left to the Municipality as per law and a positive direction for demolition ought not to be granted. But for this minor modification, the findings of the learned single Judge in W.P.No.33071 of 2014 were confirmed in their entirety. That apart, the Division Bench also made it clear in its order that payment of the penalty by Dr.C.R.P.S.Krishna and Dr.K.Padmavathi would not give any weightage or equity in their favour. This observation was completely ignored by the learned Principal Junior Civil Judge, Kothagudem, who seems to have been swayed, for some reason, by the arguments advanced on behalf of the petitioners in the I.A. that they could not be proceeded against twice on the same cause of action as per Section 26 of the General Clauses Act, 1897. Section 26 of the General Clauses Act, 1897, reads thus:
26. Provision as to offences punishable under two or more enactments :-- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of the those enactments, but shall not be liable to be punished twice for the same offence.
This provision, on the face of it, had no application to the case on hand. First and foremost, the General Clauses Act, 1897, would apply to Central Acts and not to State legislations such as the Act of 1965. This aspect of the matter seems to have completely missed the attention of the learned Judge. The learned Judge also failed to appreciate that Section 26 of the General Clauses Act, 1897, and the equivalent provision in Section 21 of the Andhra Pradesh (Telangana Area) General Clauses Act, 1308 F, bar prosecution and punishment under two enactments, whereas initiation of civil and criminal proceedings against the petitioners in the I.A. in relation to their unauthorized construction was under one single enactment, viz., the Act of 1965. The Act of 1965 itself provides for both civil and criminal proceedings being initiated against a person who indulges in illegal construction. The mere fact that such a person is subjected to criminal prosecution and is visited with a penalty would therefore not have the effect of validating the illegal construction made by him and the municipal authorities would still be at liberty to proceed against such illegal construction separately. Neither the legal position nor the observation made by the Division Bench of this Court in W.A.No.1 of 2015, as to the status of the penalty, seems to have had any impact on the learned Judge. This, unfortunately, was the level of application of mind by the learned Judge, despite his awareness that he was dealing with a matter where orders passed by this Court had already paved the way for the Municipality to take action.
Shockingly, despite being aware that a learned Judge of this Court had dealt with the issue of illegality of the subject construction and had rendered positive findings that the construction of the second and third floors were wholly illegal, apart from the violation of required setbacks and deviations from the plan even in respect of the permitted ground and first floors, and the fact that a Division Bench of this Court headed by the Honble The Chief Justice had confirmed the said findings, the learned Principal Junior Civil Judge, Kothagudem, practically sat in appeal over the direction of the Division Bench to Kothagudem Municipality to take action against the said illegal construction within a time frame and completely stalled the process. Apart from displaying delightful ignorance of legal principles, the learned Judge seems to be blissfully ignorant of the tenets of judicial discipline which required him to respect and give due weightage to the directions of the Division Bench of this Court. Purporting to give effect to a Government Order which he did not even examine, the learned Judge thought it fit to interfere in the matter overruling the orders passed by this Court in the writ petitions and the writ appeal.
This being the situation, we find no merit in the submission of Sri M.R.S.Srinivas, learned counsel, that as the order under revision is appealable under Order 43 Rule 1 CPC, this civil revision petition should be dismissed on the ground of maintainability. The power of judicial superintendence vesting in this Court under Article 227 of the Constitution must necessarily be exercised in a case of this nature where a judicial officer of the rank of a junior civil judge deems it fit and proper to brush aside the directions of a learned Judge and a Division Bench of the High Court and at that, no less than a Division Bench presided over by the Honble The Chief Justice! The casual manner in which the learned Judge chose to deal with the case, being fully aware of these aspects, justifies this Court entertaining this civil revision petition under Article 227 of the Constitution directly without relegating the petitioner herein to the ordinary remedy of an appeal under Order 43 Rule 1 C.P.C. In the larger perspective, that statutory remedy must be given a go-by when the fact situation demonstrates clear transgression of judicial power by a junior civil judge, beseeching exercise of judicial superintendence by this Court under Article 227 of the Constitution.
The judgment relied upon by Sri M.R.S.Srinivas, learned counsel, in A.VENKATASUBBIAH NAIDU V/s. S.CHELLAPPAN is therefore of no avail to him as the Supreme Court clearly pointed out therein that no hurdle can be put against the exercise of constitutional powers by the High Court but in the normal circumstances, a party would be asked to avail himself of statutory remedies before resorting to a constitutional remedy. In the present case, the circumstances are anything but normal. Further, the filing of this revision petition is sourced in the permission granted by a Division Bench of this Court in C.C.No.973 of 2015.
As explained supra, there can be no better case for exercise of the power of judicial superintendence under Article 227 of the Constitution. The observations of the Supreme Court in SURYA DEV RAI V/s. RAM CHANDER RAI are apposite in this regard:
38(4). Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (emphasis is ours) On the above analysis, we find that the order dated 07.04.2016 passed by the learned Principal Junior Civil Judge, Kothagudem, in I.A.No.230 of 2015 in O.S.No.100 of 2015 is wholly unsustainable on facts and in law. The said order is accordingly set aside and the civil revision petition is allowed.
The Registry shall mark a copy of this order to Sri D.Vijaya Saradhi Raju, Principal Junior Civil Judge, Kothagudem.
Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. In the circumstances, there shall be no order as to costs.
___________________________ SANJAY KUMAR, J ___________________________ ANIS, J 15th NOVEMBER, 2016