Sri Challa Sivasankar vs State Of
2022 Latest Caselaw 7948 AP

       HIGH COURT OF ANDHRA PRADESH

           MAIN CASE No:W.P.No.34026 OF 2022

                        PROCEEDING SHEET

SL.     DATE                                  ORDER                            OFFICE
NO.                                                                             NOTE
                   RNT,J
1.    19.10.2022

                   1.         Sri Challa Sivasankar, learned counsel for the
                   petitioners submits that the controversy as involved
                   in the present writ petition is also engaging the
                   attention of this Court in W.P.No.27221 of 2022, in
                   which this Court has passed the interim order on
                   08.09.2022.
                   2.         Sri   P.Anand    Surya,   learned    counsel,
                   representing Sri Suresh Kumar Reddy Kalava,
                   learned Standing Counsel for the respondent Nos.2

and 3, does not dispute the aforesaid submission and submits that the controversy as involved in the present writ petition is same.

3. This writ petition under Article 226 of the Constitution of India has been filed for the following relief:-

"For the above reasons, it is prayed that this Hon'ble Court may be pleased to issue a Writ, order or directions, more particularly one in the nature of Writ of Mandamus, declaring the speaking Proceedings.Roc.No.371262/2020/JA(G2) TP-KMC, dated 02.07.2021 U/s 461-A/636 of GHMC Act, 1955 issued by the 2nd respondent and subsequent seizer of petitioners shops on 06.07.2021 and SL. DATE ORDER OFFICE NO. NOTE 07.07.2021 in building D.No.18/100A-1, situated in Sri Venkatachalapathi Sharoff Bazar, Kurnool City in Ground Floor 13 Shops and First Floor 15 Shops, which is illegal, arbitrary, unjust, contrary to the provisions 443 and 596 of the Act, 1955 without jurisdiction or power and violation of Articles 14 and 300-A of the Constitution of India and consequently set aside the same and unseal the petitioners subject shops forthwith interms of the common order of this Honble court in W.P.No.13136, 13141 of 2021 dated 05.08.2022 with all consequential benefits or otherwise petitioners will suffer serious finance loss and great hardship.

Further, it is prayed that pending disposal of the Writ Petition this Hon'ble Court may be pleased to grant interim suspension of speaking Proceedings Roc.No.371262/2020/ JA(G2)TP-KMC, dated 02.07.2021 U/s 461-A/636 of GHMC Act, 1955, issued by the 2nd respondent, further directions to the respondents to unseal the petitioners subject shops forthwith and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice."

4. The order dated 08.09.2022 passed in W.P.No.27221 of 2022, from Para No.3 reads as under:-

"3. Learned counsel for the petitioners submits that the provisional order/notice under Section 452 (1) of the Greater Hyderabad Municipal Corporation Act, 1955 was served to the petitioner No.3 only and not to the rest of the petitioners, who are the purchasers from petitioner No.3. The petitioner No.3 filed explanation. The respondent No.2 passed the order of confirmation on 02.07.2021 which directed the petitioner No.3 to remove the unauthorized construction (First Floor -04 SL. DATE ORDER OFFICE NO. NOTE shops, Second Floor-06 shops and Third Floor- 07 shops), failing which, it provided that the action will be taken for sealing/demolition of the unauthorized construction, under clause (1) 461-A/636 of HMC Act, 1955 and the expenses incurred by the Municipal Corporation shall be recovered.

4. Thereafter, the shops in question have also been sealed.

5. Learned counsel for the petitioners submits that the impugned order as also the action of sealing the shops is contrary to the law as laid down by this Court in the case of Sri Pelala Venkata Subbaiah vs. State of Andhra Pradesh and others 1 decided on 05.08.2022, as, according to the submission, it has been held that power of sealing the building can be exercised only under Section 461-A r/w Section 461, with respect to the building which is under construction and once the construction is completed the power of sealing cannot be exercised.

6. Sri Suresh Kumar Reddy Kalava, learned Standing Counsel submits that the power to seal building is with respect to the constructed building as well under Section 461-A r/w 461 of the Act, 1955.

7. A perusal of the judgment in Sri Pelala Venkata Subbaiah (supra) shows in paragraph No.13, that the notices were issued under Section 452 (1) of the Act but this Court held that those notices were essentially issued for the violation of Section 443 of the Act and therefore the penalty or action that could be taken by the Municipal Corporation for violation was under Section 596 of the Act.

This Court further held, Para No.14, that there is no provision for sealing of building, which has been completed in violation of Section 442 and 443 of the Act and Section 461-A and 461 of the Act did not apply to Section 442 &

8. Section 442 provides that buildings constructed for human habitation not to be

W.P.No.13136 of 2021 SL. DATE ORDER OFFICE NO. NOTE used as godown etc., and Section 443 provides that no alteration to be made in buildings for human habitation without writing permission of the Commissioner.

9. Prima facie, what was held by this Court, with respect to sealing in that case, was in relation to violation of Section 442 or 443 of the Act.

10. The scope of sections 461-A and 461 with respect to the notice under Section 452 (1) requires consideration in the present case.

11. Further, whether the notices in the present case are essentially for violation of Sections 442 or 443 or not, also requires consideration in the right of the submissions advanced, upon which the applicability of the law in the case of Sri Pelala Venkata Subbaiah (supra) would depend.

12. Sri Suresh Kumar Reddy Kalava, prays for and is granted three (03) weeks time to file the counter affidavit.

13. List on 29.09.2022.

14. Till the next date of listing, no coercive action shall be taken for demolition with respect to the building/shop for which the confirmation order dated 02.07.2021 has been passed.

15. Sri Challa Sivasankar, learned counsel for the petitioners vehemently pressed for grant of interim relief directing the respondents to unseal the shops, placing reliance upon the judgment in Sri Pelala Venkata Subbaiah (supra).

16. In the aforesaid case, the final order was passed by this Court directing the respondents to unseal the shops finding that the sealing of the shops was without jurisdiction, keeping it open to take the action in accordance with law.

17. The said judgment is the final judgment.

18. At this stage of interim relief, once the shops have already been sealed, any direction to unseal the shops at the interim stage, cannot be granted which in fact is the final relief, as is evident from the prayer as SL. DATE ORDER OFFICE NO. NOTE quoted above and particularly when the petitioner has approached this Court after 1 year of the order dated 02.07.2021.

19. It is settled in law that any interim prayer, which is in the nature of the final relief, cannot be granted in the writ petition.

20. In Union of India and others vs. Modiluft Ltd2, the Hon'ble Supreme Court held that since the grant of the relief as prayed are final relief, the same could not have been granted by the High Court at an interlocutory stage. In Council for Indian School Certificate Examination vs. Isha Mittal and another 3, the Hon'ble Apex Court held that the High Court ought not to grant relief which can only be granted at the time of final decision. In Bank of Maharashtra vs. Race Shipping & Transport Co. Pvt. Ltd. and another4, the Hon'ble Apex Court deprecated the practice of granting interim orders, which practically give the principle relief sought to the petitioner. Recently in Civil Appeal No.5911 of 2022, decided on 01.09.2022, the interim direction given by the Delhi High Court to fill 25% of seats in EWS category was set aside by the Hon'ble Apex Court, by observing that such direction could not form the subject matter of an interim order and that was for the final call to be taken in the main matter.

21. In view of the aforesaid, the interim prayer to unseal the shops is rejected."

5. Post on 03.11.2022.

6. Till the next date of listing, no coercive action shall be taken for demolition with respect to the building/shop for which the confirmation order dated 02.07.2021 has been passed.

  (2003) 6 SCC 65

  (2000) 7 SCC 521

  (1995) 3 SCC 257
 SL.   DATE                      ORDER                          OFFICE
NO.                                                             NOTE

7. The interim prayer to unseal the shops is rejected.

________ RNT,J Scs