Telangana High Court
M. Supriya Reddy vs The Greater Hyderabad Municipal ... on 22 December, 2020
Author: A.Rajasheker Reddy
Bench: A.Rajasheker Reddy
HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
WRIT PETITION No.21969 of 2017 and 1784 of 2019
COMMON ORDER:
Since the issue involved in both the writ petitions is one and the same, they have been heard together and disposed of by way of this Common Order.
2. W.P.No.21969 of 2017 This writ petition is filed seeking writ of mandamus declaring the action of the respondents in issuing notices dated 29.06.2017 vide No.283532/TPS/C18/GHMC/2017 and 30.06.2017 vide No. 283532/TPS/C18/GHMC/2017 as illegal and arbitrary and consequently to set aside the same and also to direct the respondents not to interfere with petitioners' peaceful possession over the property in premises bearing No.8-2-322, situated at Road No.3, Banjara Hills, Hyderabad (subject property).
3. W.P.No.1784 of 2019 This Writ Petition is filed seeking writ of mandamus declaring the inaction of the respondents 1 & 2 pursuant to representation of the petitioner dated 02.12.2017 seeking cancellation of building permission bearing No.9672/HO/CZ/C- 10/2011, dated 28.03.2012 issued to the 3rd respondent under Section 450 of HMC Act, 1955 as illegal and arbitrary and consequently to direct the respondents 1 & 2 to forthwith take action on the representation of the petitioner dated 02.12.2017.
4. In both these writ petitions, petitioners essentially sought to protect the disputed compound wall on 30'-00" wide road 2 including the gate erected on the existing subject property and the unofficial 5th respondent (3rd respondent in W.P.No.1784 of 2019) (hereinafter referred to as 'unofficial respondent'), who obtained building permission from the municipal authorities, sought to remove the said compound wall including the gate on the disputed 30'-00" wide road, to have ingress and egress to her property, stating the same as public road.
5. As already observed supra, W.P.No.1784 of 2019 is being filed by the petitioner therein, for cancellation of building permission granted in favour of 3rd respondent therein, counter has been filed by the GHMC officials supporting their action of demolition of the disputed compound wall along with gate and the 3rd respondent also filed counter, rebutting the averments of the affidavit filed in support of the writ petition. However, allegations and counter allegations are almost one and the same in both the writ petitions.
6. It is the case of the petitioners that they are absolute owners and possessors of the subject property having purchased the same in the year 1985 through registered sale deeds. Thereafter, with an intention to construct group houses, they obtained municipal permission vide permit No.163/1972, dated 06.01.1988 for construction of the houses from the municipal authorities. The petitioners constructed houses by ear marking a 30 feet road within the subject property which road was to be used as an internal road for the petitioners to have ingress and egress to their respective property. The 30 feet road which was laid by the petitioners within their subject property was entirely private 3 internal road which is also shown in the Municipal Permit dated 06.01.1988. Since date of construction they have been in possession of the subject property. While so, when certain individuals attempted to trespass into the subject property, petitioners made a representation dated 27.06.2012 to the 3rd respondent stating above facts. Subsequently, they received notice dated 22.05.2017 from the 4th respondent wherein it is stated that the petitioners unlawfully erected a gate at the entrance of the subject property and directed the petitioners to remove the same forthwith. Though the petitioners are residing in the subject property since the year 1988, the aforesaid notice was not served on them directly, but the same was affixed on the subject premises. Thereafter, they made representation to the 3rd respondent and all the concerned stating above facts and requested to drop all further action against the petitioners. Subsequently, the petitioners received another notice dated 29.06.2017 which was affixed on the subject premises on 30.06.2017 stating that the petitioners earlier representation dated 27.06.2012 was rejected by the 4th respondent. Thereafter, the 4th respondent again issued notice dated 30.06.2017, vide No.283532/TPS/C18/GHMC/2017, which was also affixed on the subject premises on 01.07.2017, wherein the 4th respondent informed the petitioners that the 30 ft. wide road laid by the petitioners is being treated as GHMC property and the petitioners were directed to remove the encroachment i.e., gate and the compound wall within 24 hours, failing which, the 2nd respondent would remove the same. It is not informed by the respondents to 4 the petitioners as to what provisions of GHMC Act, have been violated by them. The notice dated 29.06.2017 is contrary to Section 395 of the Act, which clearly states that no private property can be converted into a public property in the event of the owners objecting to the same. Though the petitioners made an application under RTI calling for information from the 4th respondent on 01.11.2017, insufficient information was furnished by the respondents 4 and 5 vide notices dated 20.02.2018.The action of the official respondents in not acting upon the representation of the petitioners dated 02.12.2017 for cancellation of the building permit bearing No.9672/HO/CZ/C-10/2011, dated 28.03.2012, is arbitrary and illegal. The official respondents in collusion with the unofficial respondent, granted building permission even though road access show in the building permission never existed. In addition to the same, impugned notices dated 29.06.2017 and 30.06.2017 were issued by the official respondents for removal of the compound wall. Though the petitioners have issued legal notice to the official respondents on 16.01.2018, there is no reply till date forthcoming from them. Aggrieved by the action of the respondent authorities, present writ petitions are filed.
7. W.P.M.P.No.27054 of 2017 is filed to suspend the impugned notices, pending final disposal of the writ petition. WPMP No.27055 of 2017 is filed for a direction to the respondents not to interfere with peaceful and uninterrupted possession of the petitioners over the subject property. On 04.07.2017 this Court directed both the parties to maintain status quo obtaining as on 5 that day till 10.07.2017. The said status quo order is being extended from time to time.
8. The sum and substance of the counter affidavits filed on behalf of the official respondents, in both the writ petitions, is that that they received complaint/representation dated 16.05.2017 of Smt.Jhansi Sureddy (unofficial respondent), R/o.Plot No.1277, Road No.63A, Jubilee Hills, Hyderabad requesting the municipal authorities to remove the 30 ft road touching her plot, to have access to her plot. Based on her complaint, the respondent corporation inspected the premises and found that 30 ft wide road lead to dead end plot bearing premises No.8-2-545, which is connecting to 80.00 ft wide road and connecting to road No.3. It is noticed that the petitioners have constructed a wall on the road restricting the access to the dead end house of premises No.8-2- 545 and also erected a gate at the entrance of road No.3, which is causing an hindrance to the dead end premises as it is the only access to the said dead end premises. Since the said wall on the road and erection of gate is a clear encroachment on the public road, the respondent Corporation has served notice dated 22.05.2017 under Sections 402 & 405 of the Act. In response to the same, petitioners submitted that the subject property is covered with permission for Group Housing under permit No.163/1972 and requested to drop the action. Subsequently, on verification of records, the respondent authorities have found the following permissions obtained by the petitioners:
1. M/s.Dexo Pharma's Ltd., and others have obtained permission for the construction of servant room and 6 garages in premises No.8-2-322, situated at Road No.3, Banjara Hills, for Group Housing Scheme duly deleting the proposed compound walls vide permit No.163/72, dated 06.01.1988 for four buildings i.e., (I,II, III,IV) duly showing the effected in portion in proposed 66' wide road and providing two 30'-00" wide internal roads.
2. Further, the petitioners have obtained the revised permission for the re-construction of buildings duly dismantling the existing building in pr. No.8-2-322, situated at Banjara Hills, Road No.3, Hyderabad, for Group Housing Scheme without compound walls vide permit No.194/29, file No.30/Sub-Divn./Lyt/8/88, dated 22.07.88 (3) buildings i.e., (I,II & III) duly showing the effected in portion in proposed 66'-00" wide road and providing two 30'-00" wide internal roads and providing tot-lot.
3. Further M/s. Harvins Constructions Pvt. Ltd., have obtained the building permission for the construction in pr.No.8-2-322, situated at Road No.3, Banjara Hills, Hyderabad for additional and alterations to the existing building and proposed 1st floor duly showing the compound wall to the building and showing the road affected portion vide file No.322/2/8/93, permit No.473/98, dated 28.09.1994, which is a part of plot No.I & II, Building portion of original Group Housing sanction.
4. Further, Smt. Subba Lakshmi and Sri Sunil Chandra Reddy have obtained building permission for the construction of additional and alterations in Pr.No.8-2-
322/A, Road No.3, Banjara Hills, Hyderabad, vide permit No.493/47, in File No.322/2/8/95, dated 21.04.1995 duly showing the compound wall which is forming a part of IV Building portion of original Group Housing Sanction.
5. The plot on either side of 30'-00" road opposite to Sri Sunil Chandra Reddy is in vacant position.
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9. W.P.M.P.No.27930 of 2017 is filed seeking permission to implead the petitioner therein as the party 5th respondent in the writ petition, which was allowed by this Court on 16.08.2017. Subsequently, the 5th respondent filed W.P.M.P. No.3615 of 2017 to vacate the status quo orders granted on 04.07.2017. This Court, after filing of counter by the 5th respondent, passed an order dated 02.01.2018, wherein status quo orders granted on 04.07.2017 have been extended until the final disposal of the writ petition, and WPMP Nos.27054 and 27055 of 2017 are disposed of, dismissing the vacate petition No.3615 of 2017, filed by the implead petitioner/unofficial respondent. Aggrieved by the same, the unofficial respondent preferred W.A.No.345 of 2018, which was also dismissed by the Division Bench affirming the order of the learned Single Judge, by order dated 03.04.2018. Aggrieved by the order of the Division Bench, the unofficial respondent preferred SLP (Civil) No.29598/2018, wherein the Hon'ble Supreme Court by order dated 07.09.2018, directed for disposal of main writ petition, within a period of six months from that day, in accordance with law and liberty was also granted to the petitioner therein for seeking modification of the interim order passed by the learned Single Judge. When the matter could not be disposed of within stipulated period and the application for modification of interim order passed by the learned Single Judge could not be disposed of, on an application filed by the unofficial respondent in M.A.No.1847/2019 in Diary NO.29598/2018, the Hon'ble Supreme Court vide order dated 11.09.2019, directed this Court to dispose of the main writ petition, within a period two months 8 from that date, as such, both these writ petitions are taken up for final hearing and disposed of finally.
10. Apart from reiterating the contents of the counter affidavit filed by the official respondents, the unofficial respondent filed counter affidavits stating that basing on her complaint and after following due procedure, the respondent Corporation has demolished the compound wall on 03.07.2017 and that by suppressing the said fact, the petitioners filed the present writ petition, as if the subject compound wall is still in existence. It is denied that the wall is in existence for the last 30 years. If the petitioners are permitted to re-construct the compound wall during the pendency of the Writ Petition, then the very purpose of various proceedings issued by the Municipal Authorities will be negated without there being any adjudication on merits, as such, the petitioners cannot be permitted to re-construct the compound wall. It is also asserted that though the property acquired by her had a 30 feet wide access from the North-Eastern side to Road No.14, Banjara Hills, the same was never used by the earlier landlords as the entire family home 6.24 aces had an entrance from Road No.7. After subdivision into 2 equal half parcels, the original main entrance was used by the newly built apartment complex. The existing road which was advised by GHMC as public road was intended to be utilized by the new buyer i.e., unofficial respondent. The record of the municipal corporation also shows the availability of 30 feet road to the North-East side of the property. Though the unofficial respondent requested the petitioners for access through 30 feet wide road, the same was 9 denied. When this respondent sought clarification under RTI vide application dated 01.05.2017 as to whether the 30 feet road adjacent to H.No.8-2-322/H, road No.3, adjacent to B.Sunil Reddy (one of the neighbours and petitioners in WP No.21969/2017) was a public road or not, the 1st respondent vide reply dated 15.05.2017 answered in affirmative and confirmed that the said 30 feet road was a public road and re-affirmed the fact that eh said road was vested in GHMC limits. Despite aware of these facts, the present writ petitions have been filed by the petitioners only to harass the unofficial respondent.
11. The sum and substance of the reply affidavits filed by petitioners to the counters filed by the official respondents is that they are not aware of the complaint given by the unofficial respondent dated 16.05.2017 and the same is not served on them; that the subject wall was in existence for the past 30 years, which is even admitted by the unofficial respondent; that the wall demolished by GHMC on 03.07.2017 is part of the peripheral wall that existed even when the petitioners purchased the property in the year 1985, which was shown in both the group house permissions dated 06.01.1988 and 22.07.1988. It is asserted that the government has claim over the land claimed by the unofficial 5th respondent, which never had access to the property of the petitioners and that it was a forest and there was no access roads to the said property. The allegation that the wall on the road and erection of gate is causing hindrance to the dead-end premises and is the only access to the property of the unofficial respondent is incorrect and invocation of power under Sections 402 and 405 10 of the GHMC Act is illegal. It is asserted that the petitioners have taken only permissions for alterations and repairs of the buildings and there is no change in the road area access, layout etc., as such, the contention of GHMC that private road converts to public road is false. The provisions of Sections 402 and 405 of GHMC Act have no application to the facts of the case and that the Deputy Commissioner of GHMC is not empowered under the GHMC Act to initiate proceedings under Section 405 and it is only the Commissioner of GHMC who is the appropriate authority to conduct enquiry and pass orders under Section 405. The 5th respondent suppressed all material facts and trying to mislead this Court and that there is no access to her property, as such, GHMC ought not have granted building permission in favour of 5th respondent.
12. Reply affidavits have been filed by the petitioners reiterating the averments in the affidavit filed in support of the writ petition and denied the averments in the counter affidavits filed by the unofficial respondents.
13. Heard Sri R.Sushanth Reddy, learned counsel for the petitioners, Sri Pasham Krishna Reddy, learned Standing Counsel for GHMC and Sri S.Ravi, learned Senior Counsel appearing for Sri Rusheek Reddy K.V, learned counsel for 5th respondent.
14. Sri R.Sushanth Reddy, learned counsel for the petitioners submits that when the petitioners have obtained group housing permission and shown the 30 feet wide road as internal road for their access road leading to main approach road, the same cannot be treated as public road. He submits that when the petitioners 11 obtained permission under Group Housing Scheme, constructed compound wall and erected a gate and if the same is removed for providing access to the unofficial respondent, then the purpose of obtaining permission under Group Housing Scheme gets defeated. He also submits that the unofficial respondent has no access through their internal 30 feet road and that by falsely showing this 30 feet road as public road, she obtained building permission, in collusion with the official respondents. He also submits that the unofficial respondent obtained building permission by suppressing the fact that the petitioners obtained permission for Group Housing Scheme, as such, permission granted to the unofficial respondent is liable to be revoked. He submits that though the petitioners made representation for revoking the building permission granted in favour of the unofficial respondent, no action was taken by the Municipal Corporation, as such, sought to cancel the permission granted to the unofficial respondent. He also submits that the unofficial respondent has other access to her property and that even if the unofficial respondent does not have access, she cannot claim access through private road meant for the petitioners. He submits that in fact, the unofficial respondent filed suit O.S.No.133 of 2020 on the file of IX Additional Chief Judge, City Civil Court, Hyderabad, which itself goes to show that the unofficial respondent has no access from the 30 feet wide road meant for the petitioners, as such, sought for a direction to the respondent Corporation to cancel the building permission granted in favour of the unofficial 12 respondent. The sale deed of the unofficial respondent does not show that she has access from the internal 30 feet road.
15. On the other hand, Sri Pasham Krishna Reddy, learned Standing Counsel for the respondent Corporation, while reiterating the averments in the counter affidavit, submits that the petitioners initially obtained Group Housing Scheme permission, but subsequently, individual permissions were obtained by showing 30 feet wide road as access road for their ingress and egress and constructions were made accordingly, which shows group housing permission no longer exists and 30 feet wide road vests in GHMC and is public road meant to be used by public, as such, building permission was granted to the unofficial respondent as the 30 feet road is shown as public road to the premises of the unofficial respondent. Therefore, the petitioners cannot contend that the same cannot be used as a public road, as such, notice was issued and after considering the explanation of the petitioners, issued impugned notices, and demolished the disputed compound wall and removed the gate, which cannot be faulted.
16. Sri S.Ravi, learned Senior Counsel for unofficial respondent submits that the petitioners converted the Group Housing Scheme permission into individual housing permissions for construction of separate compound walls showing the impugned 30 feet wide road to all the plot owners, as such, the Municipal Corporation has granted permission to the unofficial respondent, treating the said road as public road. He also submits that when once the petitioners have converted the Group Housing Permission into 13 individual permissions, the disputed 30 feet road becomes public road and vests with the GHMC, as such, the petitioners cannot contend that it is not public road. He also submits that filing of suit against some other person by the unofficial respondent cannot be a ground to deny access to the unofficial respondent through public road shown by the petitioners at the time of obtaining individual permissions. He submits that when the petitioners have shown 30 feet road as access to all the individual houses to be constructed, the same cannot be treated as private road as it is no longer under Group Housing Scheme and sought for dismissal of the writ petition. Petitioners have suppressed above facts, as such, writ petition is liable to be dismissed on that ground alone.
17. Admittedly, the petitioners obtained permission for construction of buildings under Group Housing Scheme in the year 1988 and subsequently, they obtained modified plans for construction of individual compound walls to their plots/buildings. The fact of obtaining individual building permissions by the petitioners, for construction of individual compound walls, though not stated in the original writ affidavit, but the same was admitted by the petitioners, when the respondents asserted in their counter affidavits, which goes to show that the petitioners have suppressed the fact of obtaining modified building permissions for construction of compound walls in the writ affidavit and obtained interim order. That apart, it is the specific contention of the learned Senior Counsel for the unofficial respondent that she obtained building permission from 14 the municipal Corporation, by showing the 30 feet road access, which is shown by the petitioners in respect of their modified building permission.
18. It is argued by the learned Standing Counsel for GHMC that the officials of the respondent Corporation, after receipt of complaint from the unofficial respondent, inspected the subject premises and after following due procedure, after serving notices as required, demolished the disputed compound wall and also gate. It is pertinent to note that the learned Standing Counsel for GHMC produced record pertaining to permissions granted to the petitioners as well as to the unofficial respondent and also detailed reports submitted by the concerned officials. A perusal of said record goes to show that the respondent Corporation, after following due procedure and also after issuing statutory notices under Sections 402 & 405 of the GHMC Act, demolished the disputed compound wall on 03.07.2017. It is argued by the learned counsel for the petitioners that the unofficial respondent is not having access through 30 feet road, but having access from the other end. For the sake of convenience, report of the respondent officials dated 03.07.2017 reads as follows:
"It is submitted that as per the instructions, the site bearing premises No.8-2-322 & 545 situated at Road No.3, Banjara Hills, Hyderabad got inspected accompanying with the Asst.City Planner and Deputy Commissioner, with regard to the access road available to the premises No.8-2-545 other than from the premises No.8-2-322.
It is observed that there is only an approach 30'-00"
wide road from the premises No.8-2-322 to the dead end premises No.8-2-545 from Road No.3, Banjara Hills and no access is available from surrounding to the dead end premises. However, the building permission have also been accorded vide permit No.9672/HO/CZ/C10/2011, 15 dated 28.03.2017 in file No.55596/17/08/2011 based on the earlier permission accorded for Group Housing Showing 30'-00" wide road between the premises of 8-2- 322 to the dead end premises No.8-2-545. As such, as programme scheduled for demolition of compound wall for today i.e., 03-07-2017, the action has been initiated by demolishing the compound wall with the assistance of police force extended by the Banjara Hills PS, on the requisition made by this office. The photographs taken during the demolition programme is enclosed for kind perusal."
A perusal of the aforesaid report goes to show that there is only 30'-00" wide road to reach the end premises No.8-2-545 belongs to the 5th respondent and that there is no other access to reach her house. The photographs enclosed along with the report goes to show that respondents have already demolished the compound wall and gate on 03.07.2017, but by suppressing the said fact, the petitioners filed writ petition on 04.07.2017 and obtained interim order on 04.07.2017. In view of above facts and circumstances, it is very much clear that the respondent Corporation followed due process of law, while demolishing the disputed compound wall and gate, which goes to show that there is deliberate suppression of material facts by the petitioners. The petitioners have also suppressed the fact of obtaining separate individual building permissions in the affidavit filed in support of the writ petition, as such, the writ petition is liable to be dismissed on that sole ground alone. (see K.D.Sharma vs Steel Authorities Of India Ltd. (Civil Appeal No.4270 of 2008)
19. The entire case of the petitioners is based on the municipal permission obtained by them on 06.01.1988 under Group Housing but, subsequently, they have obtained individual revised permissions for reconstruction of the buildings duly dismantling 16 the existing buildings in the subject premises, vide permit No.194/29, File No.30/Sub-Divn./Lyt/8/88, dated 22.07.1988, but the petitioners also subsequently applied for separate individual permissions for construction and these permissions were granted in the year 1994-95, which discloses 30 feet road as entrance to the property of the 5th petitioner with a condition showing as 'entrance to the building from the road is to be paved by C.C or B.T vide permit No.493/47, File No.322/2/8/95, dated 21.04.1995 which shows that there is an entrance to the buildings from the road is a public road. Obtaining of subsequent permission overrides earlier one. A report of the municipal corporation also goes to show that permissions have been granted and by virtue of Section 373 read with Section 2(46) and 2(52) of GHMC Act. For the sake of convenience, the said provisions reads as follows:
"Section 373. Vesting of public streets in the Corporation:
All streets within the city being or which at any time become public streets and the pavements, stones and other materials thereof, shall vest in the Corporation and be under the control of the Commissioner.
Section 2(46) 'public-street' means any street over which the public have a right of way, whether a thoroughfare or not and includes-- (a) a Broadway over or a foot way attached to any public bridge or causeway, and (b) the drain attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property, is private property or property belonging to Government;
Section 2 (52) "street" includes any highway, and any causeway, bridge, viaduct, arch, road, land, footway, sub-way, court, alley or riding path or passage, whether a thoroughfare or not and, when there is a foot way as well as a carriage way in any street, the said term includes both;
20. The property vests in the municipality as per Section 373 contemplates vesting of two ways one those pre-existing streets 17 and second which is at any time becomes public streets, which can happen under various circumstances and the surrendering of place towards public road for the purpose of obtaining building permission is an act which confers the said demarcated portion into a public road. No injunction can be granted against public authorities to prevent them from discharging their statutory functions. It is an admitted fact that petitioners obtained subsequent building permissions in the year 1995 by showing the 30 feet road, as such, they cannot obstruct public road including GHMC.
21. Insofar as contention of learned counsel for the petitioners that since the 5th respondent filed Original Suit No.133 of 2020 before the IX Additional Chief Judge, City Civil Court, Hyderabad, restraining the defendants therein from interfering with the her right in accessing her property situated in south and south-east of Premparvat by PVP, including ingress and egress through the gate (3 feet) as ingress and egress to live cattle shed and gowshala, she cannot claim right to use the 30'-00" wide private road, belongs to the petitioners, as an access to reach her residence, as if it is a public road. Filing of suit by the unofficial respondent against defendants herein is nothing to do with the writ petition pending before this Court. In fact, the dispute in the suit is with regard to usage of gate (3 feet) on the south and south-east side of her property, but in the present writ petition, the dispute pertains to whether 30 feet road is public or private road.
22. While granting building permissions, municipal authorities are expected to see the prima facie title to the properties and grant 18 permission. It is well settled law that mere granting of building permission by the municipal authorities, will not confer any title over the property, in favour of the person, who obtained building permission. That apart, the municipal authorities are not expected to conduct roving enquiries into the title or other aspects. It is also settled principle of law that this Court, by exercising extraordinary jurisdiction under Article 226 of the Constitution of India, will not go into the aspects of title and rights of the parties.
23. A person who owns landed property intends to develop the same, approaches the local authorities for obtaining layout permission and till such permission is obtained, the owner will have title and possession of the property. But the moment when the layout is approved, all the roads shown by him in the layout vests with the local authorities and the owner of the property can no longer claim to be the owner of roads and public places shown in the layout and the general public has a right of access to the public roads and public places like parks etc. It is also a fact that when once the layout is approved by the local authorities, the owner of the land cannot have exclusive title over the roads and open places, meant for public and the development of open places and roads is the responsibility of the local authority.
24. In the present case, even if it is accepted that 30 feet road is a private when group housing permission was obtained by writ petitioners, but once they have shown it as a road while obtaining individual building permissions, it vests with the GHMC and general public including the unofficial respondent will have right 19 of access to her property, through the said road. Since the ownership and possession of the 30'-00" wide road vests with the local body, the petitioners cannot claim exclusive right over the same, except having a right of access through the said road like any other member of the public.
25. In M.C.Mehta v. Union of India1 the Hon'ble Supreme Court held as follows:
"17. We shall initially refer to two cases where discretion was exercised not to grant relief and the first one was a case where relief was refused even though there was breach of natural justice. The first one is Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828 : (1966) 2 SCR 172] There the Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25-8-1960 to locate a primary health centre at Dharmajigudem. Later, it passed another resolution on 29-
5-1961 to locate it at Lingapalem. On a representation by the villagers of Dharmajigudem, the Government passed orders on 7-3-1962 setting aside the second resolution dated 29-5-1961 and thereby restoring the earlier resolution dated 25-8-1960. The result was that the health centre would continue at Dharmajigudem. Before passing the orders dated 7-3-1962, no notice was given to the Panchayat Samithi. This Court traced the said order of the Government dated 7-3-1962 to Section 62 of the Act and if that were so, notice to the Samithi under Section 62(1) was mandatory. Later, upon a review petition being filed, the Government passed another order on 18-4-1963 cancelling its order dated 7-3-1962 and accepting the shifting of the primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem. This order of the Government was challenged unsuccessfully by the villagers of Dharmajigudem in the High Court. On appeal by the said villagers to this Court, it was held that the latter order of the Government dated 18-4-1963 suffered from two defects, it was issued by the Government without prior show-cause notice to the villagers of Dharmajigudem and the Government had no power of review in respect of government orders passed under Section 62(1). But that there were other facts which disentitled the quashing of the order dated 18-4-1963 even though it was passed in breach of the principles of natural justice. This Court noticed that the setting aside of the latter order dated 18- 4-1963 would restore the earlier order of the Government dated 7-3-1962 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution dated 29-5- 1961 passed by the Panchayat Samithi. This Court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, J. (as he then was) observed (at SCR p.
189) as follows:
"Both the orders of the Government, namely, the order dated 7-3-1962, and that dated 18-4-1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village."
(emphasis supplied) His Lordship concluded as follows:
"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated 18-4-1963? If the High Court had quashed the said order, it would have restored an illegal order -- it would have given the Health Centre to a village contrary to the valid resolutions passed by the 1 (1999) 6 Supreme Court Cases 237 20 Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law."
26. In Mohd.Swalleh v. Third Additional District Judge, Meerut2, the Hon'ble Supreme Court held as follows:
"7. It was contended before the High Court that no appeal lay from the decision of the prescribed authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the prescribed authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the prescribed authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the prescribed authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the prescribed authority has been set aside, no objection can be taken."
Though it is contended by the learned counsel for the petitioners that only commissioner is competent authority for initiating action under Sections 402 and 405 of the Act and not the Deputy Commissioner, but fact remains that the petitioners themselves have shown 30 feet road for obtaining building permissions and basing on the same, permission was granted to unofficial respondent. In view of the same, even though the action is initiated by the Deputy Commissioner other than the Commissioner, the same cannot be interfered under Article 226 of the Constitution of India, as it amounts to restoration of illegal action of the petitioners in allowing them to construct compound wall, which was demolished by the municipal authorities, prior to 2 (1988) 1 SCC 40 21 filing of the writ petition, which will cause obstruction to the general public to use the road, in view of law laid down by the Hon'ble Supreme Court of India in the aforesaid referred judgments. In view of above facts and circumstances, it is not a fit case where this court can exercise its extraordinary equitable jurisdiction under Article 226 of the Constitution of India and interdict the action initiated by the municipal authorities.
In view of above facts and circumstances, these both these writ petitions are liable to be dismissed and accordingly dismissed.
There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in these writ petitions, shall stand dismissed.
____________________________ A.RAJASHEKER REDDY, J Date:22.12.2020 kvs 22 HON'BLE SRI JUSTICE A.RAJASHEKER REDDY WRIT PETITION No.21969 of 2017 and 1784 of 2019 Date: 22.12.2020 kvs