1 I.A.No.1006 of 2020 in O.S.No.1127 of 2020
IN THE COURT OF VI JUNIOR CIVIL JUDGE, CITY CIVIL COURT,
HYDERABAD.
Dated This The 30 th Day of June, 2022.
Present: S mt . A . Sucharitha ,
VI Junior Civil Judge,
City Civil Court, Hyderabad.
I.A.No. 1006 of 20 20
IN
O.S.No. 1127 of 2020
Between : Smt. Chintala Jyothi, W/o. Chintala Narayana, Aged 42 years, Occ: Business, R/o.H.No.631185/72/2, Bola Shanker Maktha, Begumpet, Hyderabad.
...Petitioner/Plaintiff
AND
Greater Hyderabad Municipal Corporation, Rep., by its Commissioner Cum Special Officer, Having its Head Office at Municipal Complex, Tank Bund Road, Hyderabad.
...Respondent/Defendant
This petition is coming on before me for final hearing in the presence of Sri M. Ranjith Kumar, Learned Counsel for the petitioner/plaintiff and of
Sri P.H. Pannagasai, Learned Standing Counsel for respondent/defendant (G.H.M.C) and upon hearing both sides and perusing the material on record and the matter having stood over for consideration, till this day this Court passed the following:
:ORDER:
This petition is filed by the petitioner/plaintiff under order XXXIX
Rules 1 and 2 r/w section 151 of CPC seeking to grant temporary injunction order in her favour by restraining the respondent Corporation, its employees, 2 I.A.No.1006 of 2020 in O.S.No.1127 of 2020 subordinates, workmen or any other person or persons claiming through or acting under it from interfering with possession, work or demolishing the suit property or any part of the suit schedule property, pending disposal of the above suit.
The brief averments in the affidavit are as follows:
2.The petitioner submitted that she is the absolute owner and possessor of house property bearing H.No.631185/72/2, admeasuring 100
Sq. yards, consisting of ground, first, second and third floors situated at Bola
Shanker Maktha, Begumpet, Hyderabad, hereinafter referred as “Petition
Schedule Property” and has acquired the said property by virtue of Registered
Gift Settlement Deed, vide document No.305/2020, dt.31012020. Since then the petitioner is in peaceful possession and enjoyment of the petition schedule property without any interruption from any corner.
3.The petitioner further submitted that she had acquired the petition schedule property with an existing house through her husband which was constructed by her father in law long back and it has become very old and it is not in the position for habitation. In order to give a good shape to the petition schedule property it requires some internal repairs, such as, plastering, flooring and white washing, as such, she had approached the respondent Corporation for obtaining the necessary permission and enquired whether any permission is required to make repairs to the schedule property 3 I.A.No.1006 of 2020 in O.S.No.1127 of 2020 or not and the respondent officials informed the petitioner that no such permission is required for making repair work under 3.5 of Building Bye
Laws.
4.The petitioner further submitted that after enquiring she had started the repair works to the schedule property, such as, plastering, flooring and white washing and while the matter being so, the respondent Officials visited the suit premises on 13032020 and again on 18032020 and interfered with the repair work and threatened for demolition of the existing structures standing in the schedule property. It is further stated that the respondent Officials did not follow the due procedure of law incorporated in
GHMC Act and moreover did not issue the notices U/s. 461 (1), 452 (1) (2) and 636 of HMC Act. The petitioner has successfully resisted the illegal acts of the respondent Officials with the help of her husband and neighbours. The respondent Officials left the premises threatening the petitioner that they would come again with more squad and would demolish the existing structures also.
5.The petitioner further submitted that due to urgency she did not issue the mandatory notice U/sec. 685 of GHMC Act to Respondent prior to the institution of the suit. Hence the petitioner prays this Court to grant temporary injunction in her favour.
4 I.A.No.1006 of 2020 in O.S.No.1127 of 2020
On the other hand the respondent Corporation have filed the counter affidavit for the facts as follows :
6.The Assistant City Planner, Circle No.17, Central Zone, Khairtabad,
GHMC, Hyderabad had filed the counter affidavit on behalf of respondent
Corporation.
7.The Assistant City Planner submitted that the petition filed by the petitioner is devoid of merits and not maintainable under law or on facts and moreover the petitioner did not issue the mandatory notice under section 685 of HMC Act, 1955 to the respondent Corporation prior to the institution of the suit, hence the suit itself is liable to be dismissed. It is further submitted that the allegations in the affidavit in support of the petition are false, baseless, mischievous and misconceived.
8.The Assistant City Planner further submitted that petitioner be put to strict proof that she is the owner and possessor of the petition schedule property.
9.Respondent further stated that it is totally false to state that the structures in the schedule property have become old and had some water leakage and cracks in the building and is not in the position for habitation and therefore, it has become necessary for the petitioner to make repairs to the existing structures. It is absolutely false and baseless that the respondent 5 I.A.No.1006 of 2020 in O.S.No.1127 of 2020
Corporation has informed the petitioner that no permission is required as per
Rule 3.5 of Building Bye Laws of GHMC Act for making repairs in the petition schedule property. It is pertinent to mention that even in case to attain repairs viz., construction of additions and alterations, erection and re erection, temporary shed or permanent, the permission is required to be obtained from the competent authority of the respondent Corporation as required under section 428 and 433 of GHMC Act, 1955.
10.Respondent further submitted that one A. Mallikarjun gave complaint to respondent Corporation, dt.19102019 and 17022020 stating that the petitioner is making illegal and unauthorized construction at the schedule property. The respondent Officials in response to the complaint, visited the site to inspect the construction and observed that the petitioner had made illegal and unauthorized construction of ground + three upper floors without obtaining any prior permission from the respondent
Corporation as required under section 428 & 433 of HMC Act, 1955 and the petitioner did not issue notice U/s. 440 of HMC Act prior to commencement of the construction work to the respondent Corporation.
11.It is further submitted that on detecting the above illegal and unauthorized construction made by the petitioner, the officials of the respondent Corporation immediately issued notice under section 452(1) & 6 I.A.No.1006 of 2020 in O.S.No.1127 of 2020 461(1) of HMC Act, 1955, dt.23012020 to the petitioner, but the petitioner failed to give any reply to the said notice, as such, the respondent
Corporation had issued second notice under section 452 (2) of HMC Act, 1955, dt.11022020 to the petitioner but the petitioner after receiving the said notice neither replied nor complied with the same, as such, the respondent Corporation had issued final notice under section 636 of HMC
Act, 1955, dt.26022020 to the petitioner under due process of law.
12.It is further stated that on receiving the above three notices, even
before the respondent Corporation could initiate any further action under
due process, the petitioner straight away approached this Court with unclean hands and obtained interim orders by misrepresenting the facts.
13.The respondent Corporation further submitted that they never tried to interfere nor threatened to demolish the structures illegally on any day more particularly on 13032020 & 18032020 as alleged by the petitioner.
Hence, prays to dismiss the petition.
14.Heard both sides. Perused the material placed on record.
7 I.A.No.1006 of 2020 in O.S.No.1127 of 2020
Now the point for consideration is whether the petitioner is
entitled to the relief of temporary injunction against the Respondent
Corporation as prayed for?
POINT:
15.This petition is filed by the petitioner/plaintiff under order XXXIX
Rules 1 and 2 r/w section 151 of CPC seeking to grant temporary injunction order in her favour by restraining the respondent Corporation, its employees, subordinates, workmen or any other person or persons claiming through or acting under it from interfering with possession, work or demolishing the suit property or any part of the suit schedule property, pending disposal of the above suit.
16.During the course of enquiry, On behalf of petitioner Exs.P1 to P3 were marked. Ex.P1 is the Certified Copy of Gift Settlement Deed, vide document No.305/2020, dt.31012020. Ex.P2 is the Original Electricity Bill, dt.06022020. Ex.P3 is the photograph along with CD.
17.On behalf of respondent Corporation Exs.R1 and R2 were marked.
Ex.R1 is the Attested copy of Notice U/s. 452(1) and 461 (1) of HMC Act, 1955, dt.23012020 and Ex.R2 is the Attested copy of Notice U/s. 452(2) of
HMC Act, 1955, dt.11022020.
18.It is the contention of the petitioner that is the absolute owner and processor of suit schedule property consisting of ground + 3 upper floors 8 I.A.No.1006 of 2020 in O.S.No.1127 of 2020 which is acquired by virtue of gift settlement deed, and since then she is in peaceful possession and enjoyment of the property. Petitioner further stated that as the petition schedule property was constructed long back and it is not in a position for habitation, so in order to give a good shape and upgrade by way of internal repair such as plastering, flooring and white wash she approached respondent Corporation but respondent officials have informed that no permission is required for making repairs, hence she started the repair work. But all of a sudden that is on 1332020 and 1832020 defendant officials came to petition schedule property interfered with the repair work and tried to demolish the structures without issuing any notices.
19.Per contra, respondent corporation denied the contentions of the petitioner and stated that as per section 428 and 433 of HMC Act even for repairs i.e., construction of additions, alterations, erection, reerection temporary Sheds or permanent, permission is required and further stated that
Sri. A. Mallikarjun gave a complaint to respondent Corporation dated 1910 2019 and 1722020 stating that petitioner is making illegal and unauthorised construction. Basing on the complaint, they went to petition schedule property and found that there is illegal and unauthorised construction of G+3 floors without obtaining any prior permission and without issuing notices under Section. 440 regarding commencement of construction, hence requested to dismiss the petition.
9 I.A.No.1006 of 2020 in O.S.No.1127 of 2020
20.After considering the entire gamut of matter, this Court is of the opinion that, on perusal of Ex.P1, Ex.P2 it clearly shows that she is the owner and possessor of the petition schedule property, and at the time of executing the gift deed only the building was consisting of G + 3 floors. But the photograph i.e., Ex.P3 is taken on 26012020 which is prior to executing the gift deed, and also there is no clarity as to when the petitioner has started the repair work. Petitioner contended that respondent officials were interfered with the repair work without issuing any notices. But Ex. R1 and R2 clearly shows that notices were issued by GHMC to the petitioner. However respondent has mentioned in his counter affidavit that petitioner is carrying illegal construction of G+3 floors whereas in the notices they have mentioned that there is illegal construction of G+ 2 floors. There is also no clarity with regard to this. Petitioner contended that respondent officials have interfered with the repair work on 13032020 and again on 18032020 but on perusal of photograph which was taken on 26012020, the building appears to be in a good condition and does not look like an old building, and also one of the notice was issued by GHMC prior to execution of gift deed.
That means they might have finished the repair work or have constructed a new house by 26012020. At this interlocutory stage Court cannot come to a conclusion on this point. So the main point here is whether the petitioner has really carried out only white wash, flooring and plastering, or she has 10 I.A.No.1006 of 2020 in O.S.No.1127 of 2020 constructed entire new building without obtaining prior permission will be known only after conducting full fledged trial. At this interlocutory stage it is very difficult to decide.
21.This court is of the view that for seeking an equitable relief the person must approach the court with clean hands and moreover the prima facie burden lies on the petitioner to prove her case, but the petitioner failed to produce recent photographs to show the status of the building i.e she is making only repairs to the building , hence the petitioner is not entitled for temporary injunction.
22.It is well settled law that no injunction can be granted to violate the law or to prevent statutory authorities from discharging their statutory functions. Accordingly the point is answered.
In the result, the petition is devoid of merits and dismissed without costs.
Typed to my dictation by the Personal Assistant, corrected and
pronounced by me in the open Court, on this the 30th day of June, 2022.
Sd/
VI JUNIOR CIVIL JUDGE
CITY CIVIL COURT,HYDERABAD.
11 I.A.No.1006 of 2020 in O.S.No.1127 of 2020
APPENDIX OF EVIDENCE
NONE
DOCUMENTS MARKED FOR PETITIONER/PLAINTIFF:
Ex.P1 is the Certified Copy of Gift Settlement Deed, vide document No.305/2020, dt.31012020.
Ex.P2 is the Original Electricity Bill, dt.06022020.
Ex.P3 is the photograph along with CD.
DOCUMENTS MARKED FOR RESPONDENT/DEFENDANT:
Ex.R1 is the Attested copy of Notice U/s. 452(1) and 461 (1) of HMC Act, 1955, dt.23012020.
Ex.R2 is the Attested copy of Notice U/s. 452(2) of HMC Act, 1955, dt.1102 2020.
Sd/
VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
12 I.A.No.1006 of 2020 in O.S.No.1127 of 2020