Meena Kumari Jain, vs The State Of Andhra Pradesh,
2023 Latest Caselaw 618 AP

        THE HON‟BLE SRI JUSTICE RAVI NATH TILHARI

              WRIT PETITION Nos.17520 OF 2020

ORDER:-

1.      Heard Sri V.R. Reddy Kovvuri, learned counsel for the

writ petitioners in the writ petition No.17520 of 2020. Sri V.R.

Reddy Kovvuri had submitted that he had instructions from the

petitioners to appear and argue on their behalf and that he

shall file Vakalat within two days. He was permitted to argue on

the said representation.

2.      Sri Abhay Siddnath Mootha, learned counsel on record

for the petitioners was also heard who had adopted the

arguments of Sri V.R. Reddy Kovvuri.

3.       Also heard Sri C. Suman, learned counsel appearing for

the respondent No.1 and Sri V. Sai Kumar, learned counsel

appearing for the respondent No.4.

4. Perused the material on record.

5. By means of the present writ petition filed under Article

226 of the Constitution of India, the petitioners have questioned

the Notice/proceedings in R.C.U.C.No.2/2020/WPRS/188,

dated /08/2020 issued by the Vijayawada Municipal

Corporation, Vijayawada, Krishna District (in short, V.M.C)

directing the petitioners to remove the deviations in

construction of the building as indicated in the

notice/proceedings within the specified time, failing which it

was provided that those deviations shall be removed/pulled

down by the authorities of the V.M.C and the incidental costs

thereof shall be recovered from the petitioners.

6. The petitioners further prayed to stay all further proceedings

including the demolition of the petitioners‟ building, and to

restrain the V.M.C from stopping the petitioners from raising

further construction pursuant to the impugned notice

proceedings.

7. This Court granted the interim order dated 28.09.2020

which reads as under:-

"Post on 30.09.2020.

Till such time, status quo as on today shall be maintained in respect of the construction of the building in dispute. Further, the respondent authorities shall not take any steps for demolition.

Meanwhile, learned standing counsel for the respondent Corporation shall get instructions in the matter."

8. It is evident that this court by order dated 28.09.2020

directed both the parties to maintain status quo, existing as on

that date in respect of the construction of the building in

dispute and further the respondent authorities were directed

not to take any steps for demolition upto 30.09.2020. On

13.10.2020, the interim order was extended till 20.10.2020.

9. In the present writ petition and in W.P.No.17881 of 2020

filed by Smt Monika Solanki with respect to different building

in the same campus for which also the proceedings were

initiated by issuing the notice in

R.C.U.C.No.4/2020/WPRS/188, dated /08/2020, on

22.10.2020, 24.11.2020, 08.12.2020, 22.12.2020, 22.01.2021,

05.02.2021, 23.02.2021, 23.03.2021, 30.03.2021, 20.04.2021,

22.09.2021, 29.09.2021, 04.10.2021, 22.10.2021, the common

orders were passed. Both the writ petitions were being taken up

together.

10. Sri C. Subodh, the learned Advocate Commissioner,

hereinafter referred as the 1st Advocate Commissioner,

appointed vide order dated 06.10.2020 in W.P.No.1881 of 2020,

submitted his report dated 19.10.2020.

11. On 22.10.2020, this Court passed the following order:-

"The report of the Advocate Commissioner was filed in this Court along with sketch. This Court has posted the matter today to hear the objections of the learned counsel for the petitioners and the learned standing counsel for the municipal corporation. Petitioners counsel has made some legal and factual submissions which in the opinion of this

court merit further hearing. As the vacation is intervening from tomorrow and as the report along with sketch indicates that there are deviations, this Court is of the opinion that the petitioners should be directed to completely halt all further activity and / or construction of the building in the site till 05.11.2020. Learned counsels are given an opportunity to file their written objections, if any, to the Advocate Commissioner‟s report and the sketch. They are also given liberty to argue on the legal aspects. Respondents are directed to depute a responsible official two times during this intervening vacation period to check any progress of the work in the site. They shall not take action on any constructions made and they shall bring the same to the notice of this Court on 05.11.2020.

List on 05.11.2020".

12. From the order dated 22.10.2020, the followings become

evident:

1) this court clearly observed after perusal of the Advocate Commissioner‟s report along with sketch, that "there are deviations" and directed the petitioners to completely halt all further activity and/or construction of the building in the site till 05.11.2020".

2) this Court granted opportunity to the learned counsels to file written objections, if any, to the Advocate Commissioner‟s report and the sketch, and

3) the respondents were directed to depute responsible official two times during the intervening vacation period to check any progress of the work in the site but providing further that they shall not take action on any constructions

made and they shall bring the same to the notice of the Court on the date fixed.

13. Thereafter, this Court, in its order dated 22.12.2020,

observed that "it is a very contemptuous matter, which is being

argued virtually on daily basis".

14. On 22.09.2021, this court passed the following order:

"When the matter is called in the morning, learned counsel for the petitioners has categorically stated that they have stopped the construction and requested further time for filing counter to the implead petition proposed by the third parties.

On the other hand, learned counsel for the proposed parties, brought notice of this court about the construction activities of the petitioners.

This Court directed the standing counsel to get instructions with regard to the present status of the building, and the matter is passed over.

Again, the matter is called in the afternoon, standing counsel appearing for the 2nd respondent, on instructions, submitted that a report was submitted by the learned advocate commissioner, after filing the report, the petitioners has constructed one more floor and even as on today, the construction activities are going on in the subject site.

In view of the above statement, the standing counsel is directed to file a report along with required photographs, and even if permission is granted to the

proposed parties, they are at liberty to file any evidence with regard to the construction.

Post on 29.09.2021."

15. It is evident from the order dated 22.09.2021 that in view

of the rival submissions, on the one hand by the petitioners‟

counsel that the petitioners had stopped the construction but

on the other hand, the construction activity by the petitioners

was brought to notice of the court, by the learned counsel for

the implead petitioners, this court directed the learned standing

counsel to get instructions with regard to the status of the

building as on that date, fixing the matter for afternoon, when it

was informed to the court, on instructions, that the petitioners

had constructed one more floor and even as on that date, the

construction activities were going on in the subject site. This

court directed the learned standing counsel to file report along

with required photographs.

16. The 2nd respondent, Commissioner of Vijayawada

Municipal Corporation filed his affidavit dated 06.10.2021 of

his personal inspection of the building, inter alia deposing that

the petitioners violated the order of the Hon‟ble High Court and

proceeding with the construction by way of constructing one

more additional floor (third floor) over sanctioned stilt plus

ground plus two floors. It was clearly mentioned that the

petitioners have not maintained the status quo order of this

court and raised constructions without taking care of the orders

of this Court.

17. On 25.10.2021 this Court passed the following order:

"Initially after hearing both the parties, this Court has granted interim order and the same has been extended time and again.

Learned counsel appearing on behalf of the respondents brought to the notice of this court that inspite of granting specific direction by this Court with the construction, they have constructed one more floor. Considering the said submissions, this Court vide its order dated 22.09.2021 has directed the 2nd respondent to enquire and submit a further report. Accordingly, he submitted a report along with required photographs. On perusal of the same, it clearly establishes that the petitionerss have proceeded with further construction contrary to the directions of this Court.

Though the report was served on the learned counsel for the petitionerss on 22.10.2020, today at the time of arguments he has stated that he has no instructions about the construction made by the petitionerss contrary to the orders of this Court.

Considering the said submissions left with no option, this Court is directing the petitionerss to appear before the Court on 01.11.2021 to submit their explanation.

Post on 01.11.2021 along with W.P.No.1195 of 2021 for appearance of petitioners and registry is directed to serve a notice through special messenger to petitioners and learned counsel for petitioners is also directed to inform the same to the petitioners."

18. It is evident from the order dated 25.10.2021 that on

perusal of the report dated 06.10.2021 along with photographs

submitted, this court observed in clear words that the

petitioners (petitioners of W.P.Nos.17881 of 2020 and 17520 of

2020) have proceeded with further construction contrary to the

directions of this Court, and directed those petitioners to appear

before the court on the date fixed to submit the explanation.

19. On 02.03.2022 again it was brought to the notice of this

Court that despite the order passed by this Court not to proceed

with the constructions the petitioners were proceeding with the

construction. Consequently, this Court passed the following

order dated 02.03.2022:-

"It is brought to the notice of this court that despite the order passed by this Court „not to proceed with the construction‟, the petitioners is proceeding with the construction. Hence, appearance of the petitioners is inevitable. The petitioners has not appeared before this Court today as per the order 02.11.2021 of this Court. Hence, this Court deems it appropriate to direct the petitioners to appear before this court on the next date of hearing.

Accordingly, the petitioners is directed to appear before this Court on 07-03-2022 to explain as to why action should not be taken against him for proceeding with the construction inspite of the directions of this Court vide order dated 02.11.2021.

Post this matter on 07.03.2022."

20. This Court vide order dated 02.03.2022 thus directed the

petitioners to appear to explain as to why action should not be

taken against them for proceeding with the construction.

21. On 07.03.2022, the petitioners appeared. This Court again

directed the petitioners not to proceed with construction any

further in the subject property.

22. The order dated 07.03.2022 is reproduced as under:-

"The petitioners appeared before this Court as directed by this court on 02.03.2022, and thereafter, their presence is dispensed with for the present.

The petitioners are hereby directed not to proceed with constructions any further in the subject property. Post this matter on 23.03.2022."

23. On 03.11.2022, it was represented by Sri V. Sai Kumar, the

learned counsel for the unofficial respondents, that inspite of

the interim orders/status quo orders, the petitioners were

raising construction, whereas it was submitted by Sri P.A.

Seshu, appearing for the petitioners, on that date, that no

construction was being raised.

24. In view of the above rival submissions with respect to the

status of the construction, this Court directed that the 1st

respondent/Principal Secretary, Municipal Administration and

Urban Development, shall ensure that the interim orders of this

Court are not violated and on the spot no further construction

takes place. The respondent No.1 was also directed to submit

the compliance report before the next date.

25. The order dated 03.11.2022 is reproduced as under:

"W.P.Nos.17881/2020, 17520/2020 & 1195/2021

Sri P. A. Seshu, learned counsel for the petitioners, seeks adjournment on the ground that senior counsel will appear and argue the matters.

2. On his request, list on 17.11.2022.

3. This Court directed both the parties to maintain status quo vide interim order dated 06.10.2020 in W.P.No.17881/2020, vide interim order dated 28.09.2020 in W.P.No.17520/2020 and directed the respondent authorities not to demolish the petitioners‟ building vide interim order dated 11.01.2021 in W.P.No.1195/2021.

4. Sri V. Sai Kumar, learned counsel for the unofficial respondents submits that in spite of status quo orders, the petitioners are raising construction. The contempt petition was also filed and is pending.

5. Sri P. A. Seshu, on the basis of the instructions received from the petitioners, submits that no construction is being raised pursuant to the interim orders.

6. In view of the contentious issues raised in the writ petitions, this Court by order dated 06.10.2020 also appointed an Advocate-Commissioner who has submitted the report on record. There is also serious dispute with respect to raising of construction, as the petitioners‟ contention is that the interim

order of status quo is being followed, but it is contended by the unofficial respondents that the interim order is being violated and the construction is still going on.

7. Under the circumstances, the 1st respondent shall ensure that the interim orders granted by this Court, as noted above, are not violated and on the spot no further construction takes place.

8. Let the copy of this order and copies of interim orders dated 06.10.2020 in W.P.No.17881/2020, dated 28.09.2020 in W.P.No.17520/2020 and dated 11.01.2021 in W.P.No.1195/2021 be sent to the 1st respondent- Principal Secretary, Municipal Administration & Urban Development Department, A.P.Secretariat, Velagapudi at Amaravathi, who shall submit the compliance report before the date fixed. List all these matters on 17.11.2022."

26. This Court vide next order dated 17.11.2022, appointed Sri

Maheswara Rao Kuncheam, learned Advocate, as an Advocate

Commissioner (hereinafter referred as 2nd Advocate

Commissioner) to visit the site in question and submit the

report with respect to the status of the construction of the

building in site as also if the construction was continuing or

continued upto recent time.

27. The relevant part of the order dated 17.11.2022 is

reproduced as under:-

"W.P.Nos.17881 & 17520 of 2020

".................................................................................

2. The 1st respondent - Principal Secretary, Municipal Administration & Urban Development Department, A.P.

Secretariat, Velagapudi at Amaravathi was directed to submit the compliance report before the date fixed.

3. The compliance report has not been submitted.

4. Sri Y. Kanakalingeswara Rao, learned AGP, representing respondent No.1, submits that he has instructions to say that the Commissioner Vijayawada Municipal Corporation was asked by the 1st respondent vide Memo No.1896344/M2/2022, dated 10.11.2022, to furnish compliance report to the Government which report is still awaited. The Advocate-Commissioner was also directed by the 1st respondent to submit the compliance report to the Govt. Pleader for Municipal Administration & Urban Development Department by 12.11.2022 as well, without fail.

5. Sri Y. Kanakalingeswara Rao, learned AGP, also appearing for the Commissioner, Vijayawada Municipal Corporation, submits that he has not received any compliance report neither from the 1st respondent nor from the Commissioner, Vijayawada Municipal Corporation.

6. Sri V. Sai Kumar, learned counsel for the 4th respondent, represents that in spite of the interim order of status quo granted previously, the construction has not been stopped and in spite of the order passed by this Court on 03.11.2022 neither the compliance report has been submitted nor the construction has been stopped and it is still going on.

7. In view of the above, Sri Maheswara Rao Kuncheam, learned Advocate, present in the Court, is appointed as an Advocate- Commissioner to visit the site in question today itself at 5 p.m and to submit the report with respect to the construction status of building in site in question and as to it is continuing, or continued upto recent time, as per his inspection. He shall also take photograph and videograph of the site and the building in question with the assistance of some photographer and videographer to accompany him to the site in question. The Advocate-Commissioner to ascertain the aforesaid, shall have right to enter into the premises/building in question.

8. In case the Advocate-Commissioner feels difficulty in executing the commission work, pursuant to this order or

obstruction is raised by anyone, he shall be entitled to take police aid by contacting the Assistant Commissioner of Police, in writing to that effect, upon which, the police protection shall be provided to him immediately and in such a case the Advocate- Commissioner in his wisdom shall complete the inspection by carrying it to next date as well.

9. As the Advocate-Commissioner is being appointed considering the request of the learned counsel for the 4th respondent, the Advocate-Commissioner fee and expenses shall be borne by the 4th respondent and paid to the Advocate-Commissioner. 10 The fee of the Advocate-Commissioner is fixed at Rs.10,000/- (Rupees ten thousand only) for the commission work, and the miscellaneous expenses, as may be incurred would be specified by him, to be paid by the 4th respondent.

11. Since this order is passed in the presence of the learned counsels for the parties, the Advocate Commissioner is not required to issue any notice or intimation of his visit to any party.

12. List on 23.11.2022.

13. The 1st respondent - Principal Secretary, Municipal Administration & Urban Development, A.P. Secretariat, Velagapudi at Amaravati and the Commissioner, Vijayawada Municipal Corporation, shall appear on 23rd November, 2022 personally and to explain as to why the compliance report has not been submitted in spite of order dated 03.11.2022.

14. The Registry shall serve copy of this order along with copies of the relevant pages, viz., cause title page and prayer of writ petitions in WP.Nos.17881 & 17520 of 2020 at free of cost to the Advocate-Commissioner forthwith to enable him to know the property to be visited for inspection.

15. List all these matters on 23.11.2022."

28. Sri Maheswara Rao Kunchem, the 2nd Advocate

Commissioner has submitted his report of inspection dated

18.11.2022. The relevant part of his report is being reproduced

as under:

"In my inspection I have noticed the following aspects:

1. Evidently, "Site in question" is comprising of Stilt, Ground Floor, 1st Floor, 2nd Floor, 3rd Floor and above the 3rd Floor there is a Water tank.

2. Pertinently, when I reached "Site in question" on 17.11.2022 and 18.11.2022, on ground no construction works were going on.

3. Importantly, I have noticed some sanitary plastic pipes, bunch of Iron rods, polarizing of sand and also boxes containing of Tiles at Stilt Floor as well as some Tiles were stored in the middle of the Stilt Floor.

4. The upper Floor Rooms are with polarizing of Sand, Gravel (Kankara). And in some places Cement Bags are existing. Some walls are in finished stage without having white wash and colours.

5. I have also noticed that, in one of the floors cement bags (Priya Cement Company), Sand and Gravel are existing. And also I have noticed one hoe (Paara) and Tapi ( Working Tools). Further on floor there are marks which reveals the mixing of sand, gravel with cement components. (It seems to be recent marks).

6. In some of the places plastering works depicts recent patches.

7. The Electricity and Plumber works are in incomplete position.

8. I have noticed that all the Stair Case Works are partially completed for all the Floors.

9. I have noticed some unfinished Ceiling Roof, unfinished floorings in the "Site in question".

10. The Provision of Lift is existing but "Lift" was not affixed.

11. The Top Floor contains Water Tank along with pipe connections etc and the same is in working condition."

29. A perusal of the report of the 2nd Advocate Commissioner

thus shows, inter alia:

1) that the site in question is comprising of stilt, ground

floor, first floor, 2nd floor, 3rd floor and above the third

floor there is a water tank,

2) that he noticed that there were recent marks of

recent activities relating to the construction though on

17.11.2022 and 18.11.2022 the dates of inspection, on

ground no construction work was going on.

30. The 1st respondent filed compliance report dated

22.11.2022 on affidavit of Special Chief Secretary to the

Government.

31. In the compliance report it is inter alia submitted that the

petitioners raised further constructions including the

construction of the 3rd floor and the water tank inspite of the

interim order of this Court directing to maintain status quo.

The respondent No.2 served notice to stop the construction but

inspite thereof the petitioners did not stop and continued the

constructions. The petitioners constructed 3rd floor and the

water tank over the permitted floor violating the interim order. It

is further submitted that with respect to the violations, a report

dated 06.10.2021, was filed with photographs in this court but

the respondent No.2 did not take any further action as the order

dated 22.10.2020 directed not to take any action but only to

report the matter to the Court. In the compliance report, it is

also submitted that after the order dated 03.11.2022 no further

constructions have been made by the petitioners, but the

petitioners have clearly violated the order of this court inspite of

the effort of the 2nd respondent to ensure compliance with this

court‟s order .

32. On 23.11.2022, this court passed inter alia the following

order:-

".....................................................................................

7. By order dated 17.11.2022, Sri Maheswara Rao Kuncheam, learned Advocate, was appointed as the Advocate Commissioner. He has submitted the report in sealed cover which is opened in Court, and is taken on record.

8. As per the Advocate Commissioner‟s report, the works which he noticed and as reported in his report, reveals that in recent time there was construction activity, though on the date of his visit dated 17.11.2022 and 18.11.2022, no construction was going on.

9. On the request of the learned counsel for the petitionerss, another copy of the compliance report/affidavit of respondent No.1 been provided to him in Court.

10. The Registry shall serve a copy of the report of Advocate Commissioner (Sri Maheswara Rao Kunchem), to the learned counsels appearing for the petitionerss as also for the respondents.

11. The petitionerss as also the respondents may file objections, if any, against the Advocate Commissioner's report within a period of ten (10) days.

12. Prima facie, the petitionerss have raised certain constructions in violation of the interim orders granted on their petition.

13. The Court is prima facie satisfied with the compliance report submitted by respondent No.1.

14. The officers present need not appear again, unless called for by specific order.

15. List on 07.12.2022.

16. On the next date of hearing, the petitionerss shall address the Court on the point as to why the constructions raised violating the Court's order, be not directed to be demolished.

17. Interim order granted earlier is extended till the next date of listing."

33. By order dated 23.11.2022, time was granted to the learned

counsels for the parties to file objections, if any, against the

report of the 2nd Advocate Commissioner. This Court observed

that prima facie, the petitioners have raised certain

constructions violating the interim order and provided further

that on the next date of hearing the petitioners shall address

the court on the point as to why the constructions raised,

violating the court‟s order be not directed to be demolished.

34. The petitioners have filed objections against the report

dated 18.11.2022 of the 2nd Advocate Commissioner, on

19.12.2022.

35. Sri V.R. Reddy Kovvuri, learned counsel for the petitioners

submitted that the building at the subject site is still under

construction and is yet to reach the stage of completion.

Consequently the building material including the sanitary pipe

etc., was available on the site, but there were no construction

activity at present. There was no evidence of any recent

construction. The marks of mixing of cement, sand etc., were

old one and no new construction took place after August, 2021.

36. Sri V.R.Reddy Kovvuri, learned counsel for the petitioners

further submitted that the interim orders were granted for a

limited period and extended from time to time till April, 2021.

37. The 2nd Advocate Commissioner‟s report that the present

status of the construction, comprises of stilt, ground floor, first

floor, second floor, third floor and above the third floor the water

tank, has not been disputed by the petitioners in the objections.

38. When the report of the 2nd Advocate Commissioner and the

affidavit dated 06.10.2021 of the 2nd respondent V. Prasanna

Venkatesh, S/o. Venkataraman, Commissioner, Vijayawada

Municipal Corporation, Vijayawada, Krishna District, which was

filed pursuant to the order of this Court dated 22.09.2021, are

considered, it is clear that the petitioners have raised further

constructions and constructed the third floor, with same set

backs, in deviation of the plan for the permitted floors to which

impugned notice was issued, as also the water tank above the

third floor, inspite of the clear orders of this Court „to maintain

status quo‟ as also „not to make any further constructions‟.

39. The 2nd respondent in his affidavit dated 28.09.2020, in

para Nos.6 & 7, deposed as follows:

"6. The petitioner has violated the order of the Hon‟ble High Court and proceeding with the construction by way of constructing one more additional floor (3rd floor) over sanctioned Stilt+G+2 floors.

7. In obedience to the orders of the Hon‟ble High Court, I (Respondent 2) have personally attended for inspection of the buildings under construction and it is noticed that the building owner Smt. Monika Solanki has not maintained the status-quo, but proceeded with the construction of one more additional floor over Stilt+G+2 floors building. This is completely violating the sanctioned plan of Vijayawada Municipal Corporation and also after submission of the report by the advocate commissioner before the Hon‟ble High Court without taking any care of the report by the advocate commissioner before the Hon‟ble High Court without any taking care of the orders of the Hon‟ble High Court. (The photos and video graph recorded by this office are hereby with enclosed for favour of brining the matter to the notice of the Hon‟ble High Court.)

40. Thus, it is clearly established that the 3rd floor construction

and water tank was raised unauthorisedly and in clear violation

and disobedience of the interim order passed by this Court

directing „to maintain status quo‟, as also „not to raise any

further construction‟.

41. Now the Court proceeds to consider the submission of Sri

V.R. Reddy Kovvuri that the construction of the 3rd floor and the

water tank was made, when the interim order was not

operative, which was extended till April, 2021 and it was

thereafter the construction of the 3rd floor commenced which

the petitioners could proceed with.

42. A perusal of the order sheet of the writ petition shows

that on 28.09.2020, the parties were directed to maintain

status quo as existing on that date with reference to demolition

and further construction on 13.10.2020. On 13.10.2020, the

interim order was extended. On 22.10.2020, the petitioners

were directed to completely halt all further activity and/or

construction of the building in the site till 05.11.2020. The

respondents were also directed to depute a responsible officer

two times during the intervening vacation period to check any

progress of work in the site, with further direction to the

respondents that they shall not take action on any construction

made and shall bring the same to the notice of the court.

Thereafter continuously on 22.1.2021, 05.02.2021, on

23.1.2021, and on 20.04.2021, the interim order was extended

till 28.04.2021. Later on also the interim order was extended

from time to time, though on few dates there is no extension but

as on date also the interim order is operative, having been

extended on many previous dates on 07.03.2022, 23.11.2022,

7.12.2022, 8.12.2022 and 20.12.2022. The interim orders were

never vacated.

43. It appears that the petitioners after verifying the order

sheet of the writ petition have taken such a plea that the 3rd

floor construction commenced when the interim order was not

operative. Such a plea is only after thought. There is nothing

on record, except the affidavit of the petitioners to submit the

date of construction trying to cover during the period there is no

order of extension, but the report of the 2nd Advocate

Commissioner dated 21.11.2022 clearly mentions, also, about

"the recent activity of construction work". The affidavit of the

2nd respondent of his personal inspection dated 06.10.2021 also

clearly states that the petitioners are proceeding with the

construction. Besides, on many other dates it was informed to

the court that the petitioners were continuing with the

constructions.

44. In view of the aforesaid, the submission of the learned

counsel for the petitioners that the construction were raised at

a time when there was no interim order, is rejected.

45. In the facts and circumstances of the case, the affidavits on

record including those of the petitioners, the advocate

commissioner‟s report, the Court is constrained to observe that

the petitioners consider them above the law. They have no

respect for Rule of Law and for the court‟s specific restraint

orders:

i) „to maintain status quo‟ with reference to further

construction (dated 28.09.2020),

ii) directing the petitioners to halt all further construction

activity and for construction of the building (date 22.10.2020),

iii) directing not to proceed with constructions any further

(date 07.03.2022).

Not only the above, this court had to pass the orders:

i) for deputing the responsible official of the

respondent Corporation, to check any progress work

(date 22.10.2020),

ii) for the appearance of the petitioners to

submit explanation, after observing that the report

dated 06.10.2021 clearly establishes that the

petitioners have proceeded with further constructions

contrary to the court‟s direction, (25.10.2021),

iii) for appearance of the petitioners to explain

as to why action should not be taken for proceeding

of the petitioners with the construction inspite of the

court‟s direction (dated 02.03.2022) and finally,

iv) the order dated 23.12.2022 directing, to

address the Court on the point as to why the

constructions raised violating the court‟s order be not

directed to be demolished.

46. In Lalita Sharanji vs. Deoki Devi1, despite the

interim orders one Deoki Devi raised the construction, and

the contempt petition was filed, though initially she

contested the contempt proceedings but later on admitted

that she had carried out the constructions and also

submitted that the offending constructions had been

demolished and gave an undertaking not to raise any

further constructions but again she raised further

constructions, the Hon‟ble Apex Court observed and held

that she had no respect for law of the land and she willfully

disobeyed the orders passed by the Highest Court of the

land. She did not care for the rule of law. The punishment

(2018) 14 SCC 337

for committing contempt was imposed, which was however

suspended on the condition that she would comply with the

direction given earlier to remove the entire construction at

her own cost.

47. Here, it is apt to refer All Bengal Excise Licensees‟

Association Vs. Raghabendra Singh and others2, wherein

during the course of the hearing of the contempt application,

the matter was adjourned by the High Court to enable the

respondents therein to consider whether the contemnors were

prepared to cancel the lottery held on 20, 21 and 22.03.2005 in

violation of the Court's orders and on such adjourned date, the

contemnors did not agree to cancel the lottery. The Hon‟ble Apex

Court observed that under such circumstances, the plea of

mistake of understanding the prohibitory order could not at all

be accepted. It was further observed that "likewise, the High

Court also was not justified in not directing the contemnors to

cancel the lottery held on 20, 21 and 22.03.2005 in violation of

the solemn orders passed by the very same Judge and in view of

the clear finding of the Court that they had acted in clear

violation of the said interim order made by the High Court".

(2007) 11 SCC 734

48. In All Bengal Excise Licensees‟ Association (supra), the

Hon‟ble Apex Court held that "a party to the litigation cannot be

allowed to take an unfair advantage by committing breach of an

interim order and escape the consequences thereof. By pleading

misunderstanding and thereafter retaining the advantage gained in

breach of the order of the Court and the wrong perpetrated by the

respondent-contemnors in contumacious disregard of the order of

the High Court should not be permitted to hold good".

49. In paras 25, 27,28 and 38 of All Bengal Excise

Licensees‟ Association (supra), the Hon‟ble Apex Court held as

under:

"25. Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by cancelling the lottery wrongfully held by them. The learned Judge found that the respondent-contemnors had held the lottery in violation of the Court's order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery

held and should not have allowed the respondents to gain a wrongful advantage thereby.

27. Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by cancelling the lottery wrongfully held by them. The learned Judge found that the respondent-contemnors had held the lottery in violation of the Court's order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby.

28. In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondent-contemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent-contemnors in utter disregard of the order of the High Court should not be permitted to hold good.

38. In the instant case, the respondents have conducted the auction quite contrary to and in violation of an injunction order passed by the High Court. Courts have held in a catena of decisions that where in violation of a restraint order or an injunction order against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our opinion, the inherent power will not only be available under Section 151 CPC as available to us in such a case but it is bound to be exercised in that manner in the interest of justice and public interest."

50. In Meera Chauhan vs. Harsh Bishnoi and another3, the

Hon‟ble Apex Court held that it is also well settled that when

the parties violate order of injunction or stay order or act in

violation of the stay order, the court can by exercise of its

inherent power put back the parties in the same position as

they stood prior to issuance of the injunction order or give

appropriate direction to the police authorities to render aid to

the aggrieved parties for the due and proper implementation of

the orders passed in the suit and also order police protection for

implementation of such order.

51. Paragraphs 18 and 19 of Meera Chauhan (supra) read as

under:

"18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in

(2007) 12 SCC 201

violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.

19. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the Court can order restoration of possession to the party wronged."

52. In Manohar Lal (dead) by L.Rs vs. Ugrasen (dead) by

LRs and others4 the Hon‟ble Apex Court held that an order

passed or action taken in disobedience of the court‟s order and

violating the same would be illegal and nullity. It was also held

that even a court in exercise of its inherent jurisdiction under

Section 151 of Code of Civil Procedure, in the event of coming to

the conclusion that a breach of an order of restraint had taken

place, may bring back the parties to the same position as if the

order of injunction had not been violated.

53. In paragraphs 24 to 28 of Manohar Lal (supra) the

Hon‟ble Apex Court held as under:

"24. In Mulraj Vs. Murti Raghunathji Maharaj5, this Court considered the effect of action taken subsequent to passing of an

(2010) 11 SCC 557

AIR 1967 SC 1386

interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.

25. In Surjit Singh Vs. Harbans Singh6, this Court while dealing with the similar issue held as under:

"In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes."

26. In All Bengal Excise Licensees Association Vs. Raghabendra Singh & Ors7, this court held as under:

"A party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof..... the wrong perpetrated by the respondents in utter disregard of the order of the High Court should not be permitted to hold good."

27. In Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. & Anr8., this court after making reference to many of the earlier judgments held:

"On principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."

28. In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund9, this Court while dealing with the similar issues held that even a Court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of

AIR 1996 SC 135

AIR 2007 SC 1386

AIR 1996 SC 2005

AIR 2008 SC 901

coming to the conclusion that a breach to an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated".

54. In view of the law as laid down in the aforesaid judgments,

in the facts of the present case, the constructions raised in

violation and disobedience of the interim orders of this court

cannot be permitted to remain in existence. To uphold the

majesty of law, the acts done by the petitioners in disobedience

of the court‟s order are required to be undone.

55. Accordingly, this Court passes the following order and

issues following directions:

i) the respondents 1 and 2 shall demolish/remove the

3rd floor and the water tank above the third floor, of the

petitioners‟ building in question.

ii) the cost of the aforesaid demolition/removal work

shall be at the cost of the petitioners to be recovered from them.

iii) to enable the official respondents to implement this

order, the interim orders granted earlier, in the writ petition, are

vacated.

iv) it is expected of the official respondents to take due

care in implementing this order with respect to the 3rd floor and

the water tank construction, so as to avoid any damage being

caused to the rest of the building, but if any damage is caused,

the official respondents shall not be responsible as the

petitioners are only responsible for the present situation.

v) if required, the respondents 1 and 2 shall take the

police protection for implementing this order.

vi) the Commissioner of Police, Vijayawada City, N.T.R

District (Krishna District) shall provide necessary police

assistance to the respondents 1 and 2, if so requested, without

delay.

vii) the respondents 1 and 2 shall take necessary steps

to comply this order and shall submit the compliance report by

the next date.

56. It is clarified that this order is only with respect to the

constructions raised during pendency of the writ petition in

violation and disobedience of the orders passed by this Court,

as indicated above.

57. The writ petition against the impugned notice would be

heard after submission of the report of compliance of this order.

58. Let the copy of this order be sent to the respondent No.1

the State of Andhra Pradesh, rep. by its Principal Secretary,

Municipal Administration & Urban Development Department,

A.P. Secretariat, Velagapudi at Amaravati, Guntur District, and

to the respondent No.2-the Vijayawada Municipal Corporation,

Vijayawada, Krishna District, represented by its Commissioner

to ensure compliance and submit their respective reports by the

next date of listing.

59. Let the copy of this order be also sent to the Commissioner

of Police, Vijayawada City, N.T.R District (Krishna District).

60. List the matter on 27.02.2023.

__________________________ RAVI NATH TILHARI,J Date:06.02.2023.

Note:

Issue CC by tomorrow.

B/o.

Gk

THE HON‟BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.17520 OF 2020

Date:06.02.2023 Gk.