Andhra Pradesh High Court - Amravati
G.Okeshwar Reddy, vs The State Of Andhra Pradesh, on 17 January, 2022
Author: Battu Devanand
Bench: Battu Devanand
1 THE HONOURABLE SRI JUSTICE BATTU DEVANAND WRIT PETITION Nos. 41731 of 2018 & 12683 of 2021 C O M M O N O R D E R:
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W.P.No.41731 of 2018 is filed by two petitioners seeking the following relief:
„to declare the inaction of the respondents, particularly Respondent No.3 and 4 as against the illegal construction by 5th respondent at premises bearing No.7/48, Near Old Police Station, Yadiki Village and Mandal, Ananthapur District, in spite of the petitioners representation dated 29.10.2018 and 01.11.2018 is being illegal, arbitrary, unconstitutional and against to the provisions of gram panchayat Act and rules made thereunder and consequentially direct the respondent Nos. 3 and 4 to initiate action and restrain respondent No.5 from making illegal constructions without therebeing sanction building permission".
2. W.P.No.12683 of 2021 is filed by the petitioner seeking the following relief :
"declare the action of respondents, more particularly, respondent No.3, in rejecting the application for demolition and construction of the house of the petitioner situate in New Door No.4-461 and Old Door No.7-48, 7th Ward, Sy.No.1069-A, Yadaki Village, Yadaki Mandal, Ananthapuram District, vide RC.No.24/2021, dt. 17.06.2021 as being arbitrary, illegal, unjust and violative of Articles 14, 21 and 300-A of the Constitution of India and consequently, set aside the impugned Proceedings RC.No.24/2021, dated 17.06.2021 issued by respondent No.3 and consequently direct respondent No.3 to reconsider the application for demolition and construction of the house of the petitioner".
3. Heard the learned counsel for the petitioners, and the learned counsel for the respondents. Perused the material available on record.
24. Facts in WP No.41731 of 2018
The residential premises bearing No. 7/47 constructed in an extent of 125 square yards situated at yadiki Village, Ananthapur District, originally purchased by the father-in- law of petitioner No.1 through Registered Document No.763/1957, dt. 14.08.1957. During his life time, he is in peaceful possession and enjoyment of the said house. After his death, the husband of petitioner No.1 being only son was inherent the said house as a legal heir and therefore, they are in peaceful possession and enjoyment of the same by paying house tax to respondent No.4/Gram panchayat, Yadiki. While the matter stood thus, respondent No.5, who has purchased their neighbouring premises bearing Door No.7/48, which is on the east side of their residence, started making illegal construction in a brisk speed by demolishing the structure therein without there being any valid building permission by the Gram Panchayat. In that process, respondent No.5 demolished their east compound wall illegally and high handedly by depriving their privacy and legitimate ingress and egress. Thereupon, the petitioners approached respondent Nos. 2 to 4 by submitting representation in the Grievance Cell on 29.10.2018 and also on 01.11.2018, requesting them to take action against respondent No.5, who is making illegal and unauthorized construction without leaving necessary 3 set backs without there being any valid building permission from the Gram Panchayat. Thereafter, the Secretary of respondent No.4 visited the premises and went away. As there was no action on the part of respondents in spite of several representations, the petitioners constrained to file the present Writ Petition.
5. Respondent No.3/The Yadiki Major Gram Panchayat, filed its Counter Affidavit, contending that respondent No.5 proceeded with the construction without obtaining any prior approval and permission from respondent No.3. The petitioners herein filed W.P.No.41731 of 2018 before this Hon‟ble Court and this Hon‟ble Court in I.A.No.01 of 2018 in W.P.No.41731 of 2018 made the following Order:
" As per the instructions furnished to Learned Standing Counsel for the Gram Panchayat, no building permission was granted to respondent No.5 to undertake construction. Learned Standing counsel was also informed that construction activity is now stopped.
Having regard to the same, there shall be an interim order as prayed for".
Upon receiving the above order, the respondent authorities had taken immediate action so as to ensure that the construction activity by respondent No.5 would be terminated in lieu of the orders passed by this Hon‟ble Court. During pendency of the Writ Petition and despite of the orders passed by the Hon‟ble court, respondent No.5 applied for building permission so as to enable him for 4 proceeding with the construction, but respondent No.3 rejected the said application vide Roc.No.24/2021, dated 17.06.2021, in the light of the interim orders passed by this Hon‟ble Court. Therefore, the respondent authorities had acted judiciously upon receiving the orders from the Hon‟ble Court.
6. Respondent No.4 filed Counter Affidavit contending that respondent No.3/ the Secretary, Major Gram Panchayat, Yadiki Village, is the competent authority for issuing construction permission in the jurisdiction of Gram Panchayat as per Section 121 of the Andhra Pradesh Panchayat Raj Act, 1994. The Tahsildar, Yadiki, is not the competent authority for issuing construction permission. The Gram panchayat Officials will take action against the illegal building constructions in their jurisdiction. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.
FACTS in W.P.No.12683 of 2021
7) i) The petitioner is the absolute owner and possessor of House bearing No.4-461, Yadiki Village & Mandal, Ananthapuramu District to an extent of 98 sq.yards.He purchased the said property from one K. Neelakantam through a registered sale deed dated 18.07.2018. The vendor of Sri K. Neelakantam has purchased the part of the 5 common property, which fell to the share of his vendor. Though it is a common house property, none of the family members of his vendors were residing in the house as it was in the dilapidated condition. Since the purchase of the said property, the petitioner is peaceful possession and enjoyment of the same. Thereupon, with a view to develop the said property, he dismantled the said house while taking care of the wall which is common to both adjacent portions of his house. With an intention to construct a new house, he made an application dated 22.10.2018 to respondent No.3. As there is no orders from respondent No.3 even after lapse of one month, he started basement work to the building. At that time, O.S.No.287 of 2018 was filed against him seeking injunction from raising the construction, but the Hon‟ble Court refused to grant any relief to the said parties. Having failed to restrain him in the civil suit, the relations of Plaintiff in O.S.No.287 of 2018 filed W.P.No.41731 of 2018 before this Hon‟ble Court and obtained interim direction against him. Be that as it may, he made an application seeking permission for demolition and construction of new house on 10.06.2021 and the same was rejected on 17.06.2021 vide R.C.No.24 of 201 citing the pendency of W.P.No.41731 of 2018.
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ii) There are no disputes regarding title and ownership over the subject property. As the allegations made in W.P.No.41731 of 2018 pertains to the boundary wall, which is purely civil in nature, the disputed questions of facts cannot be adjudicated under Article 226 of the Constitution of India. Therefore, the impugned proceedings in Rc.No.24 of 2021, dated 17.06.2021 issued by Respondent NO.3 are illegal, arbitrary and violative of Articles 14,21 and 300-A of the Constitution of India. Aggrieved by the same, the petitioner filed the present Writ Petition.
8. Respondent No.3 filed Counter Affidavit contending that it is a fact that the Secretary, Gram Panchayat, Yadiki, has rejected the application of the petitioner for construction of the house on the ground that the Hon‟ble High Court issued Orders in I.A.No.1 of 2018 in W.P.No.41731 of 2018 on 05.12.2018 against the petitioner for stoppage of the construction by the petitioner. Sri HaldiMahaboob Saheb filed O.S.No.287 of 2018 on the file of Junior Civil Judge, Tadipatri, against the petitioner, praying for injunction against the construction of the building as they are having equal joint right over the compound wall. Since the petitioner himself admitted in O.S.No.287 of 2018 that he has started construction work without approval of the Gram Panchayat, the wife of 7 HaldiMahaboob Saheb filed W.P.No.41731 of 2018 before this Hon‟ble Court restraining the petitioner from construction of the building and this Hon‟ble Court issued interim direction against the petitioner. Therefore, the Gram Panchayat rejected the application of the petitioner in the light of the Orders of this Hon‟ble Court.
9. Learned counsel for the Petitioner filed Rejoinder to the Counter Affidavit filed by Respondent No.3 contending that W.P.No.41731 of 2018 filed by the adjacent land owners cannot be sustained as Article 226 of the Constitution of India cannot be invoked for resolution of a civil dispute among private parties. The Hon‟ble Apex Court Court in SwetambarSthanakwasi Jain Samity v Alleged Committee or Management Shri R.J.I College, Agra1, held as follows:
" We are of the view that the High Court not only fell into patent error but also exceeded its jurisdiction under Article 226 of the Constitution of India. Though the jurisdiction or the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial court - against which the remedy of appeal or revision is available - cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/miscellaneous orders of the civil court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum."1
(1996) 3 SCC 11 8 Learned counsel for the petitioner further submits that the respondents cannot reject his application for construction on the ground that there is a pending civil dispute between the petitioner and Sri Haldi Mahaboob Saheb. It is pertinent to note that O.S.No.287 of 2018 was filed by one Haldi Mahaboob Saheb and pending disposal of the same, W.P.No.41731 of 2018 was filed pertaining to the same subject property by converting the civil dispute into Writ Jurisdiction. Parallel litigation upon the same subject property amounts to resjudicata. In Sarguja Transport Service v State Transport Appellate Tribunal M.P. Gwalior and others2, the Apex Court held that without withdrawing the Suit or Writ Petition, fresh suit or Writ Petition is not maintainable as both the Civil Suit in O.S.No.287 of 2018 and the Writ Petition No.41731 of 2018 are pending for consideration. Further, W.P.No.41731 of 2018 is of civil in nature and cannot be sustainable under law and it is the abuse of process of law. Therefore, the petitioner is entitled for the relief sought in this Writ Petition No.12683 of 2021.
10. Having considered the submissions of the respective parties and upon perusal of the material available on record, it is clear that Respondent No.5 in W.P.No.41731 of 2018/Petitioner in W.P.No.12683 of 2021 proceeded with 2 AIR 1987 SC 88 9 the construction without obtaining any permission from the Gram Panchayat. In the light of the interim orders dated 05.12.2018 in I.A.No.01 of 2018, the Gram Panchayat stopped the construction activity so as to implement the orders of this Court in true letter and spirit. During pendency of W.P.No.41731 of 2018, respondent No.5 had submitted an application seeking building permission so as to enable him to proceed with the construction. In view of the interim orders passed by this Court, the Gram Panchayat had rejected the said application vide Proceedings in Rc.No.24/2021 dated 17.06.2021.
11. From the above facts, it is clear that respondent No.5 without obtaining permission from the Gram Panchayat proceeded with the construction. In view of the interim order passed by this Court, the construction was stopped. Thereafter, respondent No.5 submitted an application for construction of building permission and the same was rejected by the Gram Panchayat in view of the pendency of the Writ Petition.
12. The relief sought in W.P.No.41731 of 2018 is to stop construction by the petitioner in W.P.No.12683 of 2021. As already construction is stopped, further detailed adjudication is not required in this Writ Petition. 10
13. W.P.No.12683 of 2021 is filed against rejection of application submitted for building permission. On perusal of rejection order, the reason stated for rejection is in view of pendency of W.P.No.41731 of 2018. In our view, the said reason is unsustainable under law. The Gram Panchayat ought to have considered the application for building permission independently in accordance with law. As such, the impugned order in this Writ Petition is liable to be set aside.
14. For above stated reasons, having regard to the facts and circumstances of the case, without going into further merits of the case, in our considered view, it is appropriate to dispose of these two Writ Petitions with the following directions:
i) W.P.Nos.41731 of 2018 and W.P.No.12683 of 2021 are disposed of; and
ii) The proceedings in R.C.No.24/2021, dated 17.06.2021 issued by Respondent No.3 in W.P.No.12683 of 2021 is set aside; and
iii) the Gram Panchayat shall consider the application of the petitioner in W.P.No.12683 of 2021 for granting building permission in accordance with law within a period of Four weeks from today; and 11
iv) Till granting building permission, the petitioner in W.P.No.12683 of 2021 is not entitled to proceed with the construction.
v) The Official Respondents are directed to remove the illegal constructions, if any, made by the petitioner in W.P.No.12683 of 2021 by following due process of law within a period of Two (02) weeks from today.
15. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this case shall stand closed.
______________________________ JUSTICE BATTU DEVANAND Date : 17.01.2022 eha..
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THE HONOURABLE SRI JUSTICE BATTU DEVANAND WRIT PETITION Nos. 41731 of 2018 & 12683 of 2021 Date : .01.2022 eha