APHC010412112024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] FRIDAY ,THE TWENTY FOURTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA WRIT PETITION NO: 21068/2024 Between: Namala Venkata Rao ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. P NAGENDRA REDDY Counsel for the Respondent(S): 1. GP FOR MUNCIPAL ADMN URBAN DEV 2. YELLATI NAGA SRINIVAS 3. J DILEEP KUMAR The Court made the following: ORDER: The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:- “…to issue a writ, order or direction more particularly one in the nature of writ of Mandamus to declare the delay and inaction on the part of the Respondent No.2 in demolishing the illegal structures raised by the Respondent No.3 to 5 even in spite of the building permission granted by the 2nd Respondent Municipal Corporation vide proceedings in V.A.No.15822/2013/ACP-14/G2, dated 11-02-2015 is declared as illegal and void by the I Additional Junior Civil Judge, Visakhapatnam vide judgment and decree in O.S.No.18/2016 dated 31-06-2022 and subsequently the Appellate Court though granted limited stay till 11-08- 2022 and thereafter not extended further as arbitrary, illegal and consequently direct the Respondent No.2 to take appropriate action for demolition of the building bearing H.No.15-28-2/5 and 6, 15-28-2/3 and 4 and 15-28- 2/1 and 2 constructed in Plot No.30 admeasuring 300 Sq.Yards situated in Sy.No.63/3A, Bhavani Gardens, Kapparalla Village, Visakhapatnam in terms of judgment and decree in O.S.No.18/2016 dated 31-03-2022 on the file of the I Additional Junior Civil Judge, Visakhapatnam in the interest of justice.…” 2. The petitioner’s father and respondent Nos.3 to 5 herein are brothers and have jointly purchased land in plot No.30 admeasuring to an extent of 300 square yards in Sy.No.63/3A, Bhavani Gardens, Kapparalla village, Visakhapatnam vide registered sale deed dated 13.01.1985 and the petitioner’s father got 1/4th undivided share in the said plot, subsequently the said share was transferred to the petitioner herein under gift settlement deed and ever since the petitioner became the joint owner of the aforesaid land. While so, behind the back of the petitioner, the respondent Nos.3 to 5 have submitted an application to the 2nd respondent for grant of building permission for construction of house in the subject land, but as the petitioner’s sign was missing, the 2nd respondent issued endorsement dated 20.12.2013. Thereafter, on 12.1.2014, the respondent Nos.3 to 5 have again submitted an application to the 2nd respondent for grant of building permission by forging the signature of petitioner’s father. Though, by the time the petitioner is the joint owner of the said property, the respondent Nos.3 to 5 have forged the signature of petitioner’s father in the application and accordingly, the permission was granted on 11.02.2015. 3. When the respondent Nos.3 to 5 commenced the construction in the subject land, the petitioner raised an objection and has submitted a representation dated 06.04.2015 to the 2nd respondent complaining the fraud committed by the respondents. Thereafter, the respondent Nos.3 to 5 filed O.S.No.202/2015 for grant of permanent injunction against the petitioner’s parents, wherein vide order dated 08.05.2015, the court below has granted ad-interim injunction restraining parents of the petitioner and the 2nd respondent from interfering into the peaceful possession and enjoyment over the schedule property till disposal of the suit. Subsequently, the petitioner has submitted representations dated 06.04.2015 and 27.05.2015 to the 2nd respondent requesting to initiate action against respondent Nos.3 to 5 under Section 450 of Municipal Corporation Act and to revoke the building permission, but, due to inaction on the part of the respondent No.2, the petitioner has filed W.P.No.20503 of 2015 before this Court, which was disposed of on 07.07.2015 by directing the 2nd respondent to consider the complaint made by the petitioner and to pass appropriate orders. Accordingly, the 2nd respondent has issued notice to the petitioner and the unofficial respondents for conducting detailed enquiry, after completion of which, the 2nd respondent has passed orders on 26.09.2015 under Section 450 of GHMC Act, revoking the said building permission granted, challenging which the respondent Nos.3 to 5 filed W.P.No.36626 of 2015 before this Court, which was allowed on 12.11.2015 by observing as under: “…The only competent forum to adjudicate such disputed questions is the civil Court of competent jurisdiction. Respondent No.1 has, thus, arrogated to himself the power of a civil Court. On this short ground alone, the impugned order is set aside. However, respondent Nos.3 and 4 are left free to approach the civil Court of competent jurisdiction for claiming appropriate relief.” 4. Thereafter, the petitioner has filed O.S.No.18 of 2016 against the respondent Nos.2 to 5 seeking declaration that the building plan submitted by the respondents herein and approved by the 2nd respondent herein vide proceedings dated 11.02.2015 as illegal and consequential injunction restraining the respondents from making any construction or development work, wherein vide judgment and decree dated 31.03.2022, the court below held that the building permission dated 11.02.2015 granted by the 2nd respondent is illegal and void and has issued mandatory injunction directing the respondent Nos.2 to 5 for removal of the illegal constructions over the suit schedule property. Questioning the said judgment, the respondent Nos.3 to 5 filed A.S.No.45 of 2022, wherein vide orders dated 08.07.2022 in I.A.No.199 of 2022, interim stay was granted till 08.07.2022 and was subsequently extended till 11.08.2022. But, thereafter, the said interim stay was not extended. The grievance of the petitioner is that, when the interim order granted by the court below is not extended, the 2nd respondent ought to have initiated action for demolition of the building in the subject property as per the judgment of the court below in O.S.No.18 of 2016 dated 31.03.2022. Aggrieved by the same, the present petition is filed. 5. The 2nd respondent has filed a counter affidavit denying the contentions of the petitioner in his affidavit and has stated that if at all the petitioner has any lawful and genuine grievance with regard to the subject matter, he should have filed an execution petition before approaching this Court by way of the present writ petition. Hence, requested to dismiss the writ petition. 6. Heard learned counsel for the petitioner, learned Government Pleader for Municipal Administration and Urban Development, Sri M. Krishna Rao, learned Standing Counsel. 7. On a perusal of the material available on record, it can be seen that though the petitioner is a joint owner of the subject land, the 2nd respondent has granted building permission on 11.02.2015 to respondent Nos.3 to 5 without the signature of the petitioner herein. As such, the petitioner has filed O.S.No.18 of 2016 against the respondent Nos.3 to 5 on the file of I Additional Junior Civil Judge, Visakhapatnam which was decreed vide judgment dated 31.03.2022 and the same is extracted hereunder: “1. that the suit be and the same is hereby partly decreed; 2. that the building plan submitted by the defendants 1 to 3 and approved by Defendant No.4 under proceeding in B.A.No.15822/2013/ACP-14/G2 dated 11-02- 2015, for construction of the building in the suit schedule property be and is hereby declared illegal and void; 3. that the suit be and the same is hereby dismissed with respect to relief of consequential injunction restraining the defendants from making any construction or developmental work of any nature or interfering with plaintiff’s rights over undivided 1/4th share of the suit schedule property; 4. that Mandatory injunction be and is hereby granted directing the defendants 1 to 4 for removal of illegal constructions made in the suit schedule property and if they fail to do so, the plaintiff is authorized to demolish and remove the construction and recover the costs therein from the defendants; and 5. that the defendants do pay to the plaintiff a sum of Rs.4,668/- towards the costs of the suit.” 8. Challenging the same, the respondent Nos.3 to 5 have filed A.S.No.45 of 2022 on the file of IV Additional District Judge, Visakhapatnam, wherein an interim stay was granted on 08.07.2022 which subsequently extended up to 11.08.2022 and thereafter, the same was not extended. As such, the petitioner has requested the 2nd respondent to demolish the constructions made by the respondent Nos.3 to 5 in the subject land. But, however, as rightly pointed out by learned Standing Counsel, when an alternative remedy of filing an execution petition before the court below seeking execution of the order dated 31.03.2022 passed by the I Additional Junior Civil Judge, Visakhapatnam, the petitioner ought not to have approached this Court by filing the present writ petition. 9. The Hon’ble Supreme Court of India time and again ascertained that the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. The High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce as claimed in the petition. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution bypassing the statute. 10. While dealing with the aforesaid principle of law, the Apex Court, in United Bank of India V. Satyawati Tondon and other1, held as under: “…the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, direction, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial 1 (2010) 9 SCR 1 health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. And others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.” 11. On a perusal of the aforesaid judgment it can be understood that the powers of the High Court under Article 226 of the Constitution to issue directions, orders, or writs are broad, has no explicit limitations. However, the High Court must adhere to self-imposed restraint rules when exercising this power. While the rule of exhausting alternative remedies is discretionary, it is generally inappropriate for the High Court to entertain a petition when the petitioner has effective alternatives, such as filing an appeal or application. Even in the case on hand, the petitioner has an alternative remedy of filing an execution petition before the concerned court requesting to execute the decree passed in his favour on 31.03.2022 by the I Additional Junior Civil Judge, Visakhapatnam. In such a case, this Court is of the opinion that it would be inappropriate to entertain the present petition as the petitioner is already having an effective alternative. 12. In view of the above discussion, this writ petition is dismissed. However, the petitioner is at liberty to file an execution petition before appropriate Court. No costs. As a sequel thereto, miscellaneous petitions, if any, shall stand closed. ________________________ JUSTICE V.SUJATHA Date:24.01.2025 Gss