Municipal Corporation Of … vs Philomena Education Foundation … on 15 November, 2007

ORDER

Ramesh Ranganathan, J.

1. Rapid urbanisation has necessitated regulations being made, and restrictions being imposed, in public interest on the common law rights of individuals to construct buildings of their choice, Shiv Kumar Chadha v. Municipal Corporation of Delhi , to ensure systematic, orderly and methodical development of cities, (3 ACES, a partnership firm rep., by its partner Sri Bishanlal Ahuja, Hyderabad v. Municipal Corporation of Hyderabad, rep., by its Commissioner, Hyderabad .

2. Inability of municipal authorities to stop illegal constructions has resulted in ever increasing violation of building plans and byelaws, the wrongdoers emboldened by the fact that the law will not catch up with them. Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority Such illegal activities of raising unauthorized constructions must be firmly dealt with as it is against public interest. Pratibha Cooperative Housing Society Ltd. v. State of Maharashtra . Exercise of judicial discretion, in interfering with the action of municipal officers in curbing such violations, should only be in accordance with law, set legal principles, guided by public interest and not expediency. M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu .

3. The Municipal Corporation of Hyderabad, (hereinafter referred to as M.C.H.) has filed these two civil revision petitions, under Article 227 of the Constitution of India, aggrieved by the judicial intervention of both the Courts below injuncting them from exercising their statutory duties of preventing illegal and unauthorised constructions.

4. C.R.P. No. 2553 of 2006 is filed against the order of the II Additional Chief Judge, City Civil Court, Hyderabad in C.M.A. No. 237 of 2004 dated 28.09.2005 confirming the order of the IV Junior Civil Judge, City Civil Court, Hyderabad in I.A. No. 558 of 2004 in O.S. No. 2655 of 2004 dated 20.08.2004. C.R.P. No. 2554 of 2006 is filed against the order of the II Addl. Chief Judge, City Civil Court, Hyderabad in C.M.A. No. 238 of 2004 dated 28.09.2005 confirming the order of the IV Junior Civil Judge in I.A. No. 513 of 2004 in O.S. No. 2458 of 2004 dated 20.08.2004.

5. In I.A. Nos. 513 and 558 of 2004, the trial court initially granted an ex parte ad-interim injunction restraining M.C.H. from interfering with the construction of the alleged “hostel building”/reconstruction of the alleged “fallen area”. On the matter being carried in appeal, the order was modified to that of status-quo which order continued till both the I.As were disposed off on 20.08.2004 granting an order of ad-interim injunction pending disposal of the suit. This order was confirmed by the appellate court in its order dated 28.09.2005. Under the protection of the ad-interim injunction order the petitioners, in both the I.As, have completed construction and have presented a fait-accompli in these two revision petitions filed by the M.C.H.

6. Elaborate oral submissions were made in these two Civil Revision Petitions both by Smt. Kalpana Ekbote, learned Standing Counsel for M.C.H. and Sri S. Satyanarayana Prasad, learned Senior Counsel appearing on behalf of the respondent-plaintiffs, (petitioners in the I.A). While Smt. Kalpana Ekbote, submitted a list of eight citations along with the relevant extracts of the building bye-laws and zoning regulations, written submissions, along with a list of twenty judgments and copies thereof, was filed by the learned Senior Counsel Sri S. Satyanarayana Prasad.

7. At the outset, the preliminary objections raised to the maintainability of these two C.R.Ps need to be examined. Sri S. Satyanarayana Prasad, Learned Senior Counsel, would submit that, under the proviso to Section 115 C.P.C, a revision is not maintainable against an interlocutory order and, what cannot be revised under Section 115 C.P.C, cannot be revised under Article 227 of the Constitution of India, as Constitutional provisions cannot be utilized as a substitute of or to circumvent Section 115 C.P.C.

8. An order, interim in nature, which does not finally decide the lis, cannot be challenged by way of a revision under Section 115 CPC. Shiv Shakti Co-op. Housing Society v. Swaraj Developers , Gayatri Devi v. Shashi Pal Singh . However in cases where the remedy of filing a revision before the High Court, under Section 115 CPC, is expressly barred a petition under Article 227 of the Constitution would lie. Sadhana Lodh v. National Insurance Co. Ltd. . Interlocutory orders, passed by courts subordinate to the High Court, against which the remedy of revision has been excluded by the Act 46 of 1999, are nevertheless open to challenge in, and continue to be subject to, the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 657 : 2003 (5) ALT 35.1 (DN SC); YeshwantSakhalkarv. Hirabat Kamat ; State through Special Cell, New Delhi v. Navjot Sandhu Alias Afshan Guru . The preliminary objection to the maintainability of these two revision petitions, filed under Article 227 of the Constitution of India, must therefore fail.

Article 227 of The Constitution of India: Its Scope:

9. Sri S. Satyanarayana Prasad, Learned Senior Counsel, would submit that the orders of both the courts below do not suffer from any jurisdictional error or illegal exercise of jurisdiction or material irregularity which would justify interference in revision under Section 115 C.P.C. and, though the revision petition was filed under Article 227 of the Constitution of India, the grounds of interference are akin to Section 115 C.P.C. and that there are no grave and compelling circumstances necessitating interference in the exercise of the power of superintendence under Article 227 of the Constitution of India. According to the Learned Senior Counsel, both the trial court and the appellate court had recorded findings of fact, on the basis of material available before it including that there was a strong prima facie case in favour of the petitioner, that the petitioner would suffer irreparable loss if injunction was not granted and these findings of fact, which had been confirmed by the appellate court, could not be re-appreciated or interfered with in revision either under Article 227, or Section 115 C.P.C.

10. Save legal infirmity, it is not open to the High Court, under Section 115 CPC, to reassess evidence and interfere with concurrent finding of facts recorded by the Courts below. Mudigonda Chandra Mouli Sastry v. Bhimanepalli Bikshalu ; Ram Dass v. Davinder ; Sanjay Kumar Pandey v. Gulbahar Sheikh ; Kalpataru Vidya Samasthe (R) v. S.B. Gupta . Unless the trial court has acted with material irregularity in the exercise of its jurisdiction and the order, if allowed, would occasion failure of justice, interference under Section 115 C.P.C is not justified. The words “material irregularity in exercise of jurisdiction” do not cover either errors of fact or law Madanlal v. Shyamlal . Investigation into questions of fact and appraisal of evidence is not contemplated under Section 115 C.P.C. P.T. Thomas v. Thomas Job 2005 (6) SCJ 146 : 2005 (6) ALT 69.1 (DN SC) : (2005) 6 SCC 478.

11. It is not permissible for the High Court, under Article 227 of the Constitution of India, to review or reweigh the evidence upon which the inferior court has passed the order, Sadhana Lodh . In cases where there is no error apparent on the face of the record, and the error if any has to be discovered by a long process of reasoning, such jurisdiction would not be exercised, Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale , Venkatlal G. Pittie v. Bright Bros. (Pvt.) Ltd and Beopar Sahayak (P) Ltd. v. Vishwa Nath . Where two views are possible, and the trial court has taken one view which is a possible and plausible view, merely because another view is attractive, the High Court would be in error, in exercising its supervisory jurisdiction, to interfere with the finding of the subordinate court. Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala . However wider its powers may be than the provisions of Section 115 C.P.C, the High Court cannot assume appellate powers, Satyanarayan Laxminarayan Hegde , and unlimited prerogative to correct all species of hardship or wrong decisions, and interference must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would occur unless the High Court intervenes. Laxmikant Revchand Bhojwani v. Pratapsingh Mohansingh Pradeshi (1995) 6 SC 567.

12. The power of superintendence under Article 227, intended to keep subordinate courts within the bounds of their authority, Dalmia Jain Airways Ltd. v. Sukumar Mukherjee ; Waryam Singh v. Amarnath AIR 195 SC 215; Nagendra Nath Bora v. Commissioner of Hills Division , may be exercised in cases such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction, though available, is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. Surya Dev Rai (2003) 6 SCC 657 : 2003 (5) ALT 35.1 (DN SC).

13. Under Article 227 of the Constitution of India, the High Court may interfere in cases of errors of law apparent on record, (as distinguished from a mere mistake of law), arbitrary or capricious exercise of authority or discretion, a patent error in procedure, or where it results in manifest injustice. Interference would be justified if the subordinate court has come to a conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction. If the evidence on record, on a question of fact, has not been taken into consideration, or if relevant and material documents have been ignored while arriving at the finding of fact by the inferior court, such finding must be held to be lacking in factual basis. Achutananda Baidya v. Prafullya Kumar Gayer AIR 1997 SC 2007; Mani Nariman Daruwala alias Bharucha (Deceased) through Lrs. v. Phiroz N. Bhatena ; Baby v. Tranvancore Devaswom Board . Findings of fact can also be set aside or ignored if there is no evidence or the finding is so perverse that no reasonable person can possibly come to the conclusion which the Court has come to. Estralla Rubber v. Dass Estate (P) Ltd ; Mohan Amba Prasad Agnihotri v. Bhaskar Balwant Aher . Mere errors of fact or of law cannot be corrected unless (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. Baby . When a court asks itself a wrong question or approaches the question in an improper manner in recording a finding, the said finding of fact cannot be said to be one rendered within jurisdiction and would be amenable for correction under Article 227 of the Constitution. Failure to record the necessary findings to support its order would also be a jurisdictional error liable to correction. Kishore Kumar Khaitan c. Praveen Kumar Singh . Interference is also justified where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied. State of A.P. v. P.V. Hanumantha Rao .

14. The supervisory jurisdiction is to be exercised sparingly, and only in appropriate cases, where the judicial conscience of the High Court dictates it to act lest gross failure of justice or grave injustice occasion. Care, caution and circumspection needs to be exercised when this jurisdiction is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error, though calling for correction, is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition, invoking the supervisory jurisdiction, would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where refusal to do so would result in travesty of justice. Surya Dev Rai (2003) 6 SCC 657 : 2003 (5) ALT 35.1 (DN SC); D.N. Banerji v. P.R. Mukherjee .

15. It is within these parameters are the rival contentions required to be examined. While a common order was passed by the trial court, and the appellate court, it is appropriate that, to the extent the grounds of challenge to the orders of ad-interim injunction passed in one I.A. differs from the other, these two revision petitions are dealt with separately. Parties shall hereinafter be referred to as they are arrayed in the I.As.

C.R.P. No. 2554 of 2006:

16. I.A. No. 513 of 2004 in O.S. No. 2458 of 2004 was filed, under Order 39 Rules 1 and 2 read with Section 151 C.P.C, for an ad-interim injunction in favour of the petitioner restraining the respondent M.C.H. from interfering with their peaceful construction by way of demolition or otherwise in the suit schedule property.

17. In reply to the petitioner’s application dated 10.06.2003, seeking permission to construct a hostel building, the respondent, in Ex. A-5 letter dated 23.06.2003, informed that their proposal was examined and found to be in violation of the building rules notified in G.O. Ms. No. 423 MA dated 31.7.1998. The petitioner was informed that permission was refused, the plans were being returned and that they should not proceed with any type of construction at the site. The petitioner contended before the trial court that they had resubmitted the plans and, vide Ex.A-6 letter dated 17.1.2004, had given clarifications to the objections raised by M.C.H. and submitted revised plans but, for approximately two months thereafter, the M.C.H. had neither rejected nor approved the plans resubmitted by them, that they had filed W.P. No. 4666 of 2004 and the High Court, by order dated 12.03.2004, had directed the respondents to consider their representation and pass appropriate orders on their application dated 10.06.2003 within six weeks from the date of the order, that they had sent a letter enclosing a copy of the order of the High Court, that the respondents did not consider their application for grant of permission for construction, that the M.C.H. had neither approved nor rejected the plan and as such they had issued notice dated 26.04.2004 intimating that they were starting construction as they were entitled to do so under the deeming provision in Section 437 of the Hyderabad Municipal Corporations Act, (hereinafter referred to as the “Act”) as MCH had neither rejected nor sanctioned permission within 30 days from the date of the explanation submitted by them to the objections raised in Ex. A-5.

18. Ex.A-8 is the order of the High Court, in W.P. No. 4666 of 2004 dated 12.03.2004. In the said Writ Petition the petitioner had sought a declaration that the action of the respondents, in not granting them permission pursuant to the application made on 10.6.2003, was arbitrary and illegal and for a consequential direction to the respondent to forthwith grant them permission. W.P. No. 4666 of 2004 was disposed of at the admission stage and this Court, by order dated 12.03.2004, observed:

….It is submitted by the learned Counsel for the petitioner that while representing the application by duly answering the objections, the plans were also re-submitted and it is for the respondent authority to consider the explanation and pass appropriate orders.

In that view of the matter, without expressing any opinion on the objections raised by the Assistant City Planner, in letter dated 23.6.2003, the respondent is directed to consider the representation of the petitioner and pass appropriate orders on his application dated 10.6.2003 seeking building permission, within a period of six weeks from the date of receipt of a copy of this order.

With the above directions, the writ petition is disposed of at the threshold….

19. It is evident that, though the action of the respondents, in rejecting the petitioner’s request for building permission vide Ex.A-5 letter dated 23.06.2003, was questioned as arbitrary and illegal this Court, in Ex. A-8 order in W.P. No. 4666 of 2004 dated 12.03.2004, had not expressed any opinion on the merits of Ex.A-5 and had merely directed the respondent to consider the representation of the petitioner and pass orders on the application dated 10.06.2003. As Ex. A-5 order of rejection dated 23.06.2003 continued to remain in force non-consideration of a subsequent representation would not attract the ingredients of Section 437 of the Act.

20. In its order dated 20.08.2004 the trial court took note of the submission of the respondent and recorded:

The respondent further contends that the respondent has sent a letter which was served on the respondent on 27.03.2004 by enclosing the orders of the Hon’ble High Court dated 12.03.2004 in the said W.P. No. 4666 of 2004, to consider her application dated 10.06.2004 and the respondent through its letter No. 1089/3/6/2003, dated 24.04.2004 refused the permission after considering the application of the petitioner dated 10.06.2003 in the light of the directions of the Hon’ble High Court of A.P. in its orders dated 12.03.2004 in W.P. No. 4666 of 2004 and the petitioner had received the letter of refusal by the respondent dated 24.04.2004 on 26.04.2004. The respondent further alleges that there are no separate notices received by its either on 17.01.2004 or on 26.04.2004 about the commencement of construction and even if such alleged notices dated 17.02.2004 and 26.04.2004 are given by the petitioner to the respondent and they will be of no avail to the petitioner as the permission sought for was already rejected.

(emphasis supplied)

21. The trial court further recorded:

…Heard both sides. During the course of enquiry in I.A. No. 513 of 2004 in O.S. No. 2458 of 2004 Exs. A-1 to A-7 are marked on behalf of the petitioner and Exs. B-1 to B-11 are marked on behalf of the respondent and in I.A. No. 558 of 2004 in O.S. No. 265 of 2004, Exs. A-1 to A-12 are marked on behalf of the petitioner and Exs. B-1 to B-11 are marked on behalf of the respondent….

(emphasis supplied).

22. Having so recorded, the trial court curiously held:

….All the above documents goes to show prima facie that the petitioner is rightly entitled to proceed with the construction at the petition schedule property as per the submitted plan as per the deeming provision under Section 437 of HMC Act since the respondent has failed to refuse or reject or sanction the permission within 30 days from the date of resubmission of the revised plans along with explanation to the objections raised by the respondent corporation….

(emphasis supplied).

and again

….But there is no material placed by the respondent to show that it has refused sanction building permission for construction of Ground and First Floor for hostel building in the petition schedule property in I.A. No. 513 of 2004, but the respondent has relied on Exs. B-1 to B-11 in both the applications to disprove the case of the petitioners in both the applications in I.A. in 513 of 2004 in O.S. No. 2458 of 2004 and I.A. No. 558 of 2004 in O.S. No. 2655 of 2004 and the documents under Exs. B-1 to B-11 are the same documents….

(emphasis supplied).

23. Despite recording in its order, on more than one occasion, that Exs. B-1 to B11 were marked on behalf of the respondents, in the Appendix to the order the documents marked by the respondent in I.A. No. 513 of 2004 is shown only as Exs. B-1 to B-7 and Exs. B-8 to B-11 are neither referred to nor are its contents reflected in the order. In Ex. B-11 the petitioner was informed that the permission sought for by them was being refused again, that the revised plans were returned and that they should not proceed with any type of construction work at the site. The finding of the Trial Court that there was no material placed by the respondents to show that it had refused permission for construction of the hostel building in the petition schedule property in I.A. No. 513 of 2004, without reference to the pleadings and the material evidence in Ex.B-11 dated 24.04.2005, is perverse. Failure of the trial court, to consider this material piece of evidence i.e., Ex.B-11 letter dated 24.04.2004, vitiates the order and cannot be justified on the specious contention that the trial court had observed that the other allegations raised by the respondent were triable issues which could not be decided in interlocutory applications without there being any evidence.

24. The appellate court, in its common order dated 28.09.2004, recorded the contention of the respondent corporation, in its grounds of appeal, as under:

….The Court below ought to have seen that the respondent approached the Hon’ble High Court by filing W.P. No. 4666 of 2004 in which the Hon’ble High Court has passed orders 12.3.2004 without expressing any opinion on merits on the letter dated 23.6.2003 directing the appellant to consider the representation dt. 10.06.2003 and the respondent sent a letter dt. 27.3.2004 enclosing the order dt. 12.3.2004 in W.P. No. 4666 of 2004 to consider her application dt. 10.6.2003, which was duly refused by letter No. 1089/3/6/2003, dated 24.4.2004, in the light of the directions of the Hon’ble High Court, which was received by the respondent on 26.4.2004. However, the learned Judge, though marked the Exs. B-1 to B-11 on behalf of the appellant, but failed to refer to consider Exs. B-8 to B-11 which has resulted in a serious error in passing the impugned order.

The Court below failed to see that no such notices dt. 17.1.2004 or 26.4.2004 as alleged by the respondent or sent to or served upon the appellant by the respondent….

(emphasis supplied).

25. Despite recording these contentions urged by the respondent corporation, the appellate court curiously observed:

….

So, the appellant has not responded to comply the statutory provision under Section 437 subsequent to receipt of the explanation from the respondent covered under Ex. A-6 to grant permission or to refuse for construction of the proposed building. The Hon’ble High Court covered under Ex. A-8 dated 12.3.2004 directed the appellant to consider the representation of the respondent covered under Ex. A-6 relying on the refusal of the order covered under Ex. A-5 dated 23.6.2003. Despite of direction of the Hon’ble High Court in W.P. No. 4666 of 2004, dt. 12.3.2004 covered under Ex. A-8 did not respond nor granted permission nor refused. That apart as per provision under Section 437 of H.M.C. Act the respondent has to commence the work at any time within one year from the date of the delivery of the notice to the Commissioner. So, it is evident and established the fact that the appellant has not reconsidered the request of the respondent covered under Ex. A-6, within the statutory period of 30 days under Section 437 of H.M.C. Act, when this being taken into account, the respondent is entitled to commence construction as per the plan submitted to the appellant….

(emphasis supplied).

26. The appellate Court did not examine whether, in the light of Ex.A-5 order of rejection dated 23.06.2003, the deeming provision under Section 437 of the Act could be invoked.

27. Even if the order of the High Court, in W.P. No. 4666 of 2004 dated 12.03.2004, directing M.C.H. to consider the representation dated 10.06.2003 within a period of six weeks, required the corporation to treat the said representation as a fresh application for building permission, Ex.B-11 letter dated 24.04.2004 ought to have been taken into consideration while examining the question whether the deeming provision under Section 437 of the Act would apply, and could not have been ignored in passing an order of ad-interim injunction restraining the Corporation from interfering with the construction.

27. The submission of the learned Senior Counsel Sri S. Satyanarayana Prasad, that Ex.B-11 letter dated 24.04.2004 was filed at the fag end of the proceedings of the Trial Court does not merit acceptance. During the course of hearing on 12.9.2007 we found it necessary to call for the records pertaining to both the suits in O.S.Nos.2458 and-2655 of 2004 on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad and the Registrar (Judicial) was directed to send for the records. The records were received on the same day. On a perusal of the records we find that on 19.07.2004, the IV Junior Civil Judge heard both sides in I.A. No. 513 of 2004, marked Exs. A-1 to A-8 and Exs. B-1 to B-11 and reserved the matter for orders. Since all the exhibits, both on behalf of the petitioner and the respondents, were marked on 19.07.2004, it cannot be said that the trial court could not examine Ex. B-11 as it was filed at the fag end of the proceedings. Learned Senior Counsel would contend that Ex. B-11 letter dated 24.04.2004 did not consider any of points raised by the petitioner in their earlier representation and that it was not communicated to the petitioner as required under Section 630 and 631 of the Act. Learned Senior Counsel would place reliance on Rajkumar v. Commissioner of Municipal Corporation of Hyderabad 1976 (1) APLJ 18, and on the cross-examination of D.W. 1 in O.S. No. 2458 of 2004, in this regard. An affidavit in lieu of chief-examination of D.W.1 was filed on 11.07.2007 and Ex. B-1 to B-28 were marked. It was only on 25.07.2007 and 21.08.2007 that D.W.1 was cross-examined. In proceedings under Article 227 of the Constitution of India it is not for this Court to re-appreciate the evidence on record, adjudicate the order in Ex.B-11 dated 24.04.2004 on merits or examine whether it was properly communicated or not, as the validity of the order was not examined by both the Courts below. It is not open to the petitioner to raise contentions regarding the merits of Ex.B-11 dated 24.04.2004 and the manner of its communication for the first time before this Court that too in a revision filed by M.C.H.

29. Under Article 227 of the Constitution of India, the High Court would not set aside an order taking into account subsequent events, Kamleshwar Prasad v. Pradumanju Agarwal , confine its scrutiny to the records and proceedings of the lower Courts, and not disturb findings of fact relying on fresh material which were not before the subordinate court. Rena Drego (MRS) v. Lalchand Soni (1998) 3 SCC 341. This Court would therefore not be justified in examining the evidence of D.W.1 recorded in the suit much subsequent even to the filing of these two C.R.Ps.

30. The submission of learned Senior Counsel that Ex. B-11 dated 24.04.2004 would not have been lost sight of by both the Courts below if it was really brought to their notice does not merit acceptance since the relevant pleadings of MCH, in its counter-affidavit filed in I.A. No. 513 of 2004, have been referred to in the order of the trial court itself. Similarly the contentions in this regard, as urged by M.C.H. in its appeal, is also reflected in the order of the appellate court itself. The contention that M.C.H. was acting at the instance of a neighbour of the petitioner, who was inimically disposed of against them, must also fail as this contention was neither urged before nor was it considered by the Courts below.

Statutory Provisions to be Satisfied for a Valid Application Seeking Permission for Construction:

31. The trial court failed to ask itself the question whether Section 437 of the Act has any application where the building permission had been rejected earlier. It ignored the specific contention of the respondents, in their counter-affidavit to the I.A, that, even if the notices dated 17.01.2004 and 26.04.2004 were given, they were of no avail as permission had already been rejected vide Ex. A-5 letter dated 23.06.1993. As the trial court has misinterpreted Section 437 of the Act, and has misapplied it to the case on hand, though the said statutory provision has no application, it is necessary to refer to Section 437 and the other relevant provisions of the Act and the Municipal Corporation of Hyderabad Building By-laws, 1981 (hereinafter referred to as “By-laws”). Section 437 of the Act reads thus:

When building or work may be proceeded with: If within thirty days after receipt of any notice under Section 428 or 433 or of the plan, section, description or further information, if any, called for under Sections 429, 431 or 434 as the case may be, the Commissioner fails to intimate in writing, to the person who has given the said notice, his disapproval of the building which the said person proposes to erect or of the work which he proposes to execute, or if, within the said period the Commissioner signifies in writing to the said person, his approval of the said building or work, the said person may, at any time within one year from the date of the delivery of the notice to the Commissioner proceed with the said building or work in accordance with his intention as described in the notice or in any of the documents aforesaid, but not so as to contravene any of the provisions of this Act or any bye-law made thereunder.

32. Under Section 428(1) every person, who intends to erect a building, shall give to the Commissioner a notice of his intention in a Form, obtained for this purpose under Section 435, specifying the position of the building intended to be erected, its description, the purpose for which it is intended, its dimensions and the name of the person whom they intend to employ to supervise its erection. Bye-law 3 prescribes the procedure for obtaining a building permit. Bye-law 3.1 provides that no person shall erect, re-erect or make material alterations to any building without first obtaining a separate building permit from the authority. Under Bye-law 3.2, every person who intends to erect, re-erect or make material alteration in any building or part thereof, as referred to in Section 428 and Section 433 of the Act, shall give an application in writing to the authority in the prescribed form in Appendix ‘A’. In the application, details pertaining to the land/building, the name, address and licence number of the licensed architect/engineering supervisor, who prepared the plans and documents, are required to be furnished. Along with the application the following documents, in quintuplicate, are required to be enclosed (1) site plan; (2) building plan; (3) service plan; and (4) general specifications. The applicant is also required to certify that it is the owner or the lessee of the land on which it intends to erect the building and to enclose copies of documents of ownership/lease certified by the authorities specified therein. The applicant is also required to certify that it had gone through the building regulations contained in the Act and the bye-laws made thereunder and to have satisfied themselves that the building plans and other documents are in accordance with the provisions contained therein. Bye-law 4.2 prescribes the manner in which the plans are to be prepared and the details which it should contain. Bye-law 5 prescribes the fees for a building permit and, under Bye-law 5.1, no application for building permit shall be deemed valid unless and until the person giving notice has paid the fees as per Bye-law No. 5.2 and an attested copy of the receipt of such payment is attached with the application. Under Bye-law 6.1 the authority may either sanction or refuse the proposal or may sanction them with such modifications or directions as it may deem necessary.

33. The petitioner’s representation in Ex. A-6 letter dated 17.01.2004 does not satisfy the aforesaid requirements of a valid application under the Act and the Bye-laws. Even if no orders had been passed by the respondents, on his representation within 30 days of its receipt or thereafter, Ex. A-6 letter dated 17.01.2004 would not confer any right on the petitioner to proceed with construction under the deeming provision of Section 437. Neither the trial court nor the appellate Court asks of itself the question whether the subsequent representation dated 17.01.2004 satisfied the requirements of a valid application for building permission under the Act, the Bye-laws and the regulations.

Construction of Buildings: Applicable Provisions Under the Act, bye Laws and Regulations:

34. Section 437 itself stipulates that construction of the building cannot contravene any of the provisions of the Act or any byelaw made thereunder. Under Section 440(1), no person shall commence to erect or execute any building or execute any such work as is described in Section 428, until he has given notice of his intention to do so and the Commissioner has either intimated his approval of such building or work, or failed to intimate his disapproval thereof, within the period specified in Section 437 and until he has given notice to the City Engineer of the proposed date of commencement. Where the commencement does not take place within seven clear days of the date so notified, the notice shall be deemed not to have been given. Bye-law 8 prescribes the notice for commencement of the building work. Under Bye-law 8.1 the owner, upon commencement of his work under a building permit, shall give notice in the proforma prescribed in Appendix-E to the authority that he would start the work and the authority shall cause inspection of the work to be made within 14 days following receipt of the notice, to verify that the building has been located in accordance with the sanctioned plans. The Form in Appendix-E requires the applicant to certify that the erection, re-erection or material alteration is of the building which is being commenced at the location and on the date to be specified in the application. The application is required to be counter-signed by a licensed technician and his license number furnished. Bye-law 17 relates to the site details, and Bye-law 18 the requirements of parts of the building. Bye-law 18.1 prescribes the size and area requirements, 18.2 the height, 18.3 the other requirements of the parts of the building and 18.4 lighting and ventilation requirements. Bye-law 19 is the provision for lights, Bye-law 20 of exits and by-law 21 the fire safety requirements. Section-C, i.e., Bye-laws 22 to 26, relate to structural safety and services.

35. Regulation 2.22 of the Zoning Regulations, 1981, (hereinafter referred to as the “Regulations”) defines “occupancy or use groups”. The occupancy classification prescribed therein includes “educational building” which is defined to mean any building used for school, college, or day-care purposes. The occupancy classification also includes “residential buildings” which is defined to mean any building in which sleeping accommodation is provided for normal residential purposes and includes hostels. Regulation 2.12 defines “development” to mean the carrying out of building operations over land or the making of any material change in any building or land, or in the use of any building or land. Regulation 5 prescribes the procedure for obtaining development permit and, under Regulation 5.1, no person shall carry out development without obtaining a development permit. Regulation 5.2 requires an application, as prescribed in Appendix-A, to be made for carrying out development. Regulation 9 relates to open spaces and, under Regulation 9.1, the provisions of open spaces around and inside buildings shall be according to Regulations 9.2 to 9.9. Regulation 9.2 relates to residential buildings. Regulation 9.5 relates to educational buildings and, thereunder, a minimum front open space of 9 mtrs, 6 mtrs for side and rear open spaces is prescribed. Regulation 10 relates to area and height limitation and prescribes that the floor area ratio (FAR) and coverage for different user groups shall be as given in Table 6. For residential buildings, such as hostels, the maximum FAR is 2.00 and the maximum permissible ground coverage is 50%, whereas for educational institutions buildings for high school/colleges the maximum FAR permissible is 2.50, the minimum plot area is 2 Hectares and the maximum permissible built up area is 35%.

36. The trial court ignored the specific plea of the respondent corporation, in its counter-affidavit, that the construction was in violation of the provisions of the Act, the Bye-laws and the Regulations. Neither did the petitioner adduce evidence to show that it had fulfilled the aforesaid stipulations in constructing the building nor did the trial court call upon them to do so. The trial court misinterpreted the legal provisions, did not take into consideration the evidence on record having a bearing on the question regarding applicability of the deeming provision in Section 437 and, without reference thereto, concluded that the petitioner was entitled to proceed with construction under Section 437 of the Act. The findings of the trial court are perverse.

37. Even though the validity of the order of rejection, in Ex. A-5 proceedings dated 23.06.2003, was not under challenge, and, despite the trial court not having examined its validity, the Appellate Court, in its order in C.M.A. No. 238 of 2004 dated 28.09.2005, chose to do so. It held that the first ground mentioned in Ex. A-5 letter dated 23.06.2003 was vague and that the order did not disclose on what grounds the plan submitted by the petitioners did not tally with the site in question. With regard to sub-division under Section 388 of the Act, it held that the petitioner had explained that they had neither let out any plots or made roads necessitating seeking approval under Section 388 of the Act. The notice under Section 388 is required to be given not only in cases where the land is divided into building plots but also where any land, or a portion thereof, is used or permitted to be used for building purposes.

38. The appellate court has also ignored the specific contention, urged by MCH in its appeal, that, since there was a serious issue with regard to the deeming provision under Section 437, the only order which could have been passed was that of status quo and not of temporary injunction restraining the corporation from interfering with the unauthorised and illegal construction or the contention that such unauthorized and illegal construction was opposed to the provisions of the Act, the Bye-laws, the Regulations and the lay-out rules.

39. The question whether the deeming provision in Section 437 would apply in the aforesaid circumstances was a serious issue which could, at best, have been examined after trial in the suit and not by way of a cursory and superficial consideration in interlocutory proceedings.

C.R.P. No. 2553 of 2006:

40. I.A. No. 558 of 2004 in O.S. No. 2655 of 2004 was filed, under Order 39 Rules 1 and 2 read with Section 151 C.P.C, for an ad-interim injunction in favour of the petitioner restraining M.C.H. from interfering with reconstruction of the fallen area in the suit schedule by way or demolition or in any other manner.

41. The petitioner, which was granted permission for construction of a college building vide permit No. 430 of 1991 dated 09.06.1994, claimed that a part of it fell down in the month of January, 2004 due to heavy rains and winds, and possibly because of cracks in the rocky soil, that they had informed M.C.H, vide letter dated 17.01.2004, that they would reconstruct the front portion of the building to avoid further damage and had also submitted a sanctioned plan showing the area which was to be reconstructed and, since there was no response, they had addressed another letter in Ex. A-3 dated 02.04.2004 putting the corporation on notice that, as five weeks had elapsed since their earlier letter dated 17.01.2004, they were going ahead with the reconstruction of the fallen area as per the sanctioned plan dated 09.06.1994 annexed to Ex. A-3 letter dated 17.01.2004. However the document marked as Ex. A-3 does not contain the plan said to have been annexed thereto. In Ex. A-4 letter dated 29.04.2004 the petitioner stated that there was no provision in the Act requiring permission as the portion sought to be reconstructed was not in a public road but, without prejudice to their rights, their request be considered in accordance with the Act, the rules and regulations and permission be granted for reconstruction of the fallen area within seven days.

42. W.P. No. 7446 of 2004, (referred to in Ex. A-4 letter dated 29.04.2004), was filed by the petitioner to declare the action of the respondents in interfering with reconstruction of their building in accordance with permit No. 430 of 1991 dated 09.06.1994, as per the notice given to the respondent vide letter dated 17.01.2004, as arbitrary and illegal. A consequential direction was sought therein to the respondent not to interfere with construction of the classrooms and laboratories in the petitioner’s premises. In the affidavit filed in support of the writ petition it was not even contended by the petitioner that no permission was necessary for reconstruction of the fallen area or that they had the right to proceed with reconstruction under the deeming provision of Section 437 of the Act. Annexed to the writ petition were copies of the letters dated 17.01.2004 and 02.04.2004 allegedly sent to the Corporation. The letter dated 17.01.2004 reads as if the petitioner had informed the respondent that they were planning to reconstruct the fallen area, that they were sending a copy of the sanctioned plan, that in the said plan the portion which had fallen down and which was being constructed was shown in red colour and the rest of the portion in black and that they be permitted to make reconstruction as per the sanctioned plan as shown in red colour in the plan annexed to the letter. However a copy of the said plan was not even filed along with the Writ Petition. This Court in its order, in W.P. No. 7446 of 2004 dated 28.04.2004, held:

The learned Counsel for the petitioner seeks permission to withdraw the writ petition, with a liberty to approach the Municipal Corporation of Hyderabad, seeking necessary construction permission, as per the sanctioned permission No. 430 of 1991 in File No. 163/TP 5/92, dated 9.6.1994, and if the said permission is not granted, he is at liberty to approach the appropriate forum.

Permission is accorded.

Accordingly the writ petition is dismissed reserving liberty to the petitioner to approach Municipal Corporation of Hyderabad for necessary construction permission.

No costs.

(emphasis supplied).

43. Under Section 11 Explanation IV CPC, an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of the claim or the defence. Forward Construction Co. v. Prabhat Mandal . Having challenged the action of the respondents, in interfering with construction of the “alleged fallen area”, in W.P. No. 7446 of 2004, the petitioner was not entitled to contend before the trial court that no permission was required since such a plea, though ought to have been taken, was not taken in the Writ Petition.

44. Under Order 23 Rule 1 CPC the plaintiff may, at any time after institution of the suit, abandon any part of his claim. Under Sub-rule (3) where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for a part of the claim it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such part of the claim with liberty to institute a fresh suit in respect of such part of the claim. Under Sub-rule (4) where the plaintiff withdraws a part of the claim, without permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

45. The principle underlying Order 23 Rule 1 has been extended to cases of withdrawal of writ petitions also. Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior . Withdrawal of W.P. No. 7446 of 2004, on 28.04.2004, would have disentitled the petitioner from filing a suit for the very same relief but for the liberty granted by the High Court. It is only to the extent that liberty was granted was the petitioner entitled to file a suit afresh. Since the High Court, in its order in W.P. No. 7446 of 2004 dated 28.04.2004, reserved liberty to the petitioner only to approach the M.C.H. for necessary construction permission, the petitioner could only have approached the M.C.H. in the first instance and, in case the permission sought for was refused, to have questioned the order of refusal. It was not open to the petitioner to file a suit contending that no permission was necessary for construction.

Re-erection/Alteration of Buildings: Relevant Statutory and Other Provisions:

46. The trial court relied on Exs. A-3 and A-4 letters dated 02.04.2004 and 29.04.2004 to hold that the said letters disclosed that the petitioner had already sent letter dated 17.01.2004 by courier along with the building plan and, since there was no response, for a period of approximately 4 months, the petitioner was entitled to commence reconstruction under the deeming provision of the Act, that there was no provision in the Act which required permission for reconstruction, that Section 433(e) implied that, if the building was not abutting and did not stand within the regular line of a street, permission was not required, that there was no fee prescribed for grant of permission for reconstruction, that the respondent had not stated anything about any permission being required for the purpose of reconstruction and that the petitioner had the right and was entitled to proceed with reconstruction.

47. Section 2(3) of the Act, defines ‘building’ to include a house, out-house, stable, (sic)rine, godown, shed, hut, wall, fencing, platform and any other structure whether of pasonry, bricks, wood, mud, metal or of any other material. Section 428(2) defines “to erect or re-erect a building” to include any material alteration or enlargement of any building, the addition of any rooms, buildings, outhouses or other structures etc. Section 433 requires every person who, inter alia, intends to make any addition to a building or make any alteration or repairs to a building involving the removal or re-erection of any external or party wall to the extent specified thereunder, or make any alteration in a building involving its sub-division or conversion, or remove/reconstruct any portion of a building abutting a street which stands within the regular line of such street, to give the Commissioner, in a form obtained for the purpose under Section 435, notice of his intention specifying the portion of the building in which such work is to be executed, the nature and extent of the intended work and the name of the person whom he intends to supervise its execution.

48. Bye-law (2)(ii) defines “alteration” to mean a structural change such as an addition to the area or height, or the removal of a part of a building or any change to the structure such as the construction of, cutting into or removal of any wall, partition, column, beam etc., or a change to or closing of any required means of ingress or egress or a change to the fixtures or equipment. The word “to erect” has been defined to mean (a) to erect a new building on any site whether previously built upon or not, (b) to re-erect any building of which portions have been pulled down, burnt or destroyed and (d) to carry out alterations. Bye-law 3.5 provides that no application for building permit is necessary for the following alterations provided they do not violate any provisions regarding general building requirements, structural stability and fire safety requirements of the by-laws. They are (a) gardening; (b) white washing; (c) painting; (d) plastering and patch work; (e) re-flooring and (f) construction of sun-sheds not exceeding 1 metres on one’s own land.

49. Thus, construction even of a wall, fencing, platform or any other structure would fall within the definition of a “building” requiring permission. Similarly any structural change, which adds to the existing area or height or construction which amounts to cutting into or removing any wall, partition, column etc., would fall within the definition of “alteration”. Re-erection of a building or carrying out alterations thereto fall within the expression “to erect” and a notice under Section 433 is required to be given by the person who intends to do so. It is not even the case of the petitioner that the alterations carried out by them fell under Bye-law 3.5. None of the aforesaid statutory provisions were examined by the trial court despite a specific plea in the counter-affidavit that the construction was against the provisions of the Act, the Bye-laws, Regulations and lay out rules, that it was a public hazard, a nuisance and against I public safety. It is clear from the above referred statutory provisions that, even if a part of the building does not abut a street, permission is still required for re-erection of a building or making any alteration thereto. Neither did the petitioner specify nor did the trial court choose to enquire what was the nature and extent of the “fallen area” which the petitioner intended to reconstruct or to examine the nature of alterations proposed to be carried out by them and whether the proposed reconstruction of the so called “fallen area” was, indeed, in accordance with the plan sanctioned in permit No. 430 of 1991 dated 09.06.1994. We have also not been made aware as to what was the extent of the “fallen area” which needed reconstruction, whether it was just a wall, a partition or a portion of the building etc. In any event, such reconstruction/alteration would require permission under the Act. Except in reading a negative covenant into Section 433(e), both the Courts below have overlooked several other applicable statutory provisions and, though the burden lay heavily on them to establish a prima facie case, the petitioners conveniently chose not to bring these provisions to the notice of the Court.

50. The appellate court, in its order in C.M.A. No. 237 of 2004 dated 28.09.2005, held that the construction which was going in I.A. No. 558 of 2004 was reconstruction of the fallen area for which no permission was required as the college building, reconstruction of which was going on, had been constructed under a valid permit from the Corporation prior to 1998, (i.e., Permit Nos.430 dated 9.6.1994), and that G.O.Ms. No. 423 dated 31.07.1998 was not applicable to them.

51. Both the Courts below ignored the specific contention of the respondents, in their counter-affidavit, that permit No. 430 of 1991 dated 09.06.1994 had lapsed on 09.06.1997 and that the petitioner was not entitled to proceed with construction thereafter. Under Bye-law 7.1, the sanction once accorded remains valid upto three years, one year for commencement and two years for completion. During this period a completion certificate has to be submitted. If this is not done the permit shall be got revalidated before expiry of this period. Revalidation is subject to the rules in force and the application for revalidation is to be treated as for a new building permit. As stipulated in Bye-law 7.1, the permit granted earlier, in Permit No. 430 of 1991 dated 09.06.1994, was valid only for a period of three years and expired by 09.06.1997. Thereafter, any construction, reconstruction, alteration of any building, other than the alterations specified in Bye-law 3.5, required adherence to the statutory provisions of the Act of submitting a valid application seeking building permission, giving a notice under Section 428/433, a notice of commencement under Section 440 and adherence to the relevant Bye-laws and Regulations in making reconstruction/alteration. Since the relevant statutory provisions, which required compliance, for satisfying the requirements of a valid application under the Act, have already been referred to herein before in C.R.P. No. 2554 of 2006, it is unnecessary to refer to those provisions again. Suffice to hold that the representation dated 17.01.2004, even if it were held to have been served on the respondent, does not satisfy the ingredients of a valid application under the Act.

52. Now the other judgments relied upon by the Learned Senior Counsel Sri S. Satyanarayana Prasad. In H. Seshadri v. K.R. Natarajan : 2003 (5) ALT 28.1 (DN SC), the Supreme Court held that the High Court had limited jurisdiction under Section 50(1) of the Karnataka Rent Control Act and Section 18 of the Karnataka Small Cause Courts Act and that a finding of fact based on oral evidence should not ordinarily be set aside by an appellate court save and except for strong and cogent reasons.

53. In Manohar LaL Chopra v. Rai Bahadur Rao Raja Seth Hiralal the Supreme Court held that the courts had inherent jurisdiction to issue a temporary injunction in circumstances not covered by the provisions of Order 39 C.P.C. if it was of the opinion that the interests of justice required an order of interim injunction being issued. In Rajnibai v. Kamala Dew , the Supreme Court held that, under Section 151 C.P.C, the Court had the inherent power to protect the rights of parties pending the suit and that, in a suit for declaration of title simpliciter, the Court had the power, under Order 39 Rules 1 and 2 and even under Section 151 C.P.C, to grant adinterim injunction pending the suit. In Dorab Cawasji Warden v. Coomi Sorab Warden , the Supreme Court held that the relief of interlocutory mandatory injunction is granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. The Supreme Court also laid down guidelines for grant of an order of interlocutory mandatory injunction. It held that grant or refusal of an interlocutory mandatory injunction ultimately rested in the discretion of the Court to be exercised in the light of the facts and circumstances of the case. In Karnataka Rare Earth v. Senior Geologist, Department of Mines & Geology , the Supreme Court held that the doctrine of actus curiae neminem gravabit was applicable to such acts to which it could be held that the Court would not have so acted had they been correctly appraised of the facts and law and that it was the principle of restitution which was attracted. The Supreme Court held that, on account of an act of a party persuading the Court to pass an order, which at the end is held as not sustainable, and as a result the party has gained an advantage which it could not have otherwise earned or the other party has suffered an impoverishment which it could not have suffered but for the order of the Court and the act of such party, and that the successful party, which was finally held entitled to a relief assessable in terms of money at the end of the litigation, was entitled to be compensated in the same manner in which the parties would have been if the interim order of the court had not been passed.

54. In Prem Singh Chaudhary v. State of Uttaranchal (2005) 11 SCC 567, the interim order passed by the Uttaranchal High Court was the subject matter of challenge before the Supreme Court and it was observed that, as the High Court had not disposed of the writ petition and the interim order was passed keeping in view the balance of convenience and the relative merits for the time being, if any inconvenience was caused because of the interim order, it was open to the appellant to draw the same to the attention of the High Court in the pending writ petition and seek appropriate directions.

55. In Subash Kumar Lohade v. The Special Officer, Municipal Corporation of Hyderabad , the question which arose for consideration before the Division Bench of this Court was whether the application made for sanction of lay out under Appendix-A of the lay-out rules was required to be accompanied by a clearance certificate from the District Collector. The Division Bench, while going through several statutory provisions under the Act and the rules, held that there were no statutory provision in this regard. The Division Bench held that M.C.H. should keep in mind the general objections while sanctioning lay outs, including the plan referred to in the Collector’s letter and, in each case, satisfy itself that the applicant seeking sanction of lay-out was the owner of the land as contemplated under the lay-out rules and zoning regulation and to sanction the lay out only if it was satisfied in that behalf after making such enquiry as it considered appropriate.

Grant of Ad-interim Injunction: Tests to be Satisfied:

56. The trial court held that the petitioner had established a prima facie case, that the balance of convenience rested in their favour, it was proved that the petitioner in I.A. No. 513 of 2004 in O.S. No. 2458 of 2004 was entitled to carry on construction under the deeming provision of the Act, that the petitioner in I.A. No. 558 of 2004 in O.S. No. 2655 of 2004 was entitled to proceed with reconstruction, since admittedly the college building was not abutting a street, and there was no provision in the Act which required permission for reconstruction in accordance with the existing sanctioned plan for a building which was not abutting a street. The trial court held that, as the petitioners were in possession and enjoyment of their respective schedule properties, and as they were carrying on construction and reconstruction as a matter of right, and as per law, they had satisfied the necessary ingredients requisite for grant of ad-interim injunction until disposal of the suits.

57. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of a preventive relief to a litigant to prevent future possible injury. In other words the court, in exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. Dalpat Kumar v. Prahlad Singh . The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff’s rights; (ii) when the need for protection of the plaintiff’s rights is compared with or weighed against the need for protection of the defendant’s rights, or likely infringement of the defendant’s rights, the balance of convenience is tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands. Dalpat Kumar ; Gujarat Bottling Co. Ltd. v. Coca Cola Co. , Hindustan Petroleum Corporation. Ltd. v. Sriman Narayan ; Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai .

58. The burden is on the plaintiff to show that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of a prima facie right, and infraction of the enjoyment of the right, is a condition precedent for the grant of temporary injunction. Prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Dalpat Kumar . A prima facie case is a serious disputed question to be tried in the suit and the court must be satisfied that, on the facts placed before it, there is a probability of the plaintiff being entitled to the relief sought for.

59. The petitioners, in both the I.As, have failed to discharge their burden of establishing, prima facie, their legal right under the Act, the bye-laws and the regulations for construction of the alleged “hostel building” and reconstruction of the alleged “fallen area” of the college building, without obtaining permission of the authorities under the Act. As held above, both the courts below have exercised their discretion, to grant ad-interim injunction, ignoring relevant documents, misinterpreting certain statutory provisions and failing to consider certain others, the bye-laws and the regulations. A bare reading of Sections 437 and 433 of the Act, on which reliance was placed by both the Courts below to hold that the petitioners were entitled to proceed with construction, would by itself show that there were several other statutory provisions necessitating compliance before permission for construction/ reconstruction could be granted by the authority under the Act. The relevant provisions in this regard have been elaborately referred to hereinabove, not only to show that the Courts below have ignored these statutory provisions in passing an order of ad-interim injunction but also to serve as a guidance in similar cases of unauthorized/illegal constructions.

60. It is well settled that exercise of discretion by granting a temporary injunction when there is ‘no material’, or by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. Acting on ‘no material’ (similar to ‘no evidence’), refers not only to cases where there is total dearth of material but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. Seema Arshad Zaheer 2006 (5) ALT 26 (SC) : 2006 (5) SCJ 757 : (2006) 5 SCC 282. Exercise of discretion by both the courts below must, therefore, be characterized as arbitrary, capricious and perverse.

Power to Prevent Illegal and Unauthorised Constructions: Relevant Statutory Provisions:

61. While an order prohibiting the respondent from demolishing the construction, made prior to the order of adinterim injunction, may have been justified to maintain the status quo, both the Courts below, in granting an ad-interim injunction restraining the corporation from interfering with the construction/reconstruction of the building in the respective suit schedule properties, have permitted the petitioner to proceed with reconstruction of the alleged “fallen area” and construction of the alleged “hostel building”. Having proceeded with, and completing such, unauthorised construction/reconstruction, the petitioners now contend before this Court that, since the entire construction was completed while the injunction was in force, interference at this length of time would cause irreparable loss and injury to the petitioners and would amount to disposal of the very suits which are in progress before the trial court.

62. It is well settled that no injunction can I be granted to violate the law or to prevent statutory authorities from discharging their statutory functions. Section 450 of the Act confers powers on the Commissioner to cancel permission on the ground of material misrepresentation by the applicant. Section 452 empowers the Commissioner to take proceedings in respect of buildings which are commenced or carried out contrary to the provisions of the Act or the Bye-laws made thereunder. Section 454 empowers the Commissioner, at any time, during the erection of the building or at any time within three months after completion thereof, by written notice, to specify any matter in respect of which erection or re-erection of such building or the execution of such work may be in contravention of any provision of the Act or any rule or by-law made thereunder and requiring the person, erecting or re-erecting the building, to cause anything done contrary to any such provision or rule or bye-law made thereunder, to be amended. Under Section 636(1), if any work, requiring the written permission of the Commissioner under Act, regulation or bye-law, is done without obtaining any written permission, such work shall be deemed to be unauthorized and the Commissioner may at any time, by written notice, require the same to be removed, pulled down or undone. Under Sub-section (2), if within the period specified in such written notice, the requisition contained therein is not carried out, the Commissioner may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner as the case may be.

63. Under Bye-law 9.1, during the course of construction of the building, if any deviation from the sanctioned plan is intended to be made, permission of the authority shall be obtained before the proposed deviation is executed. Under Bye-law 10.1 all construction work, for which a building permit is required, shall be subject to inspection by the authority periodically, including on receipt of the notice of commencement of work, any other intermediary stages of construction, on completion of work and after receipt of the completion certificate. Under Bye-law 11.1 if at any time construction is done, not according to the sanctioned plan, the authority may by written notice direct the permit holder to stop further construction and cause anything done contrary to the sanctioned plan to be amended so as to be in conformity with the said plan. Under Bye-law 11.3 any person who contravenes any of the provisions of the Bye-laws shall be guilty of an offence and upon conviction (a) shall be punished by fine as fixed by the authority and (b) suitable action may be taken including demolition of unauthorized work as decided by the authority, etc.

64. The consequence of the order of injunction, restraining the corporation from interfering with the construction/reconstruction, is that the respondent has been disabled from discharging its statutory functions of preventing unauthorized and illegal constructions and from exercising its powers under the Act, the Bye-laws and the Regulations. Public Interest has suffered as a result of such orders. While the Court should always extend its helping hand to protect a citizen who is wronged, it must also ensure that judicial proceedings are not used/misused to protect or to perpetuate a wrong committed by the person who approaches the court. Shiv Kumar Chadha (1993) 3 SCC 161.

Ad-interim Injunction: an Equitable and Discretionary Relief:

65. The respondent corporation had specifically contended, both before the trial court and the appellate court, that as the petitioner had approached the court with unclean hands, they were not entitled to the equitable relief of injunction and that, under the garb of the interim injunction order, the petitioners were resorting to unauthorized and illegal construction without valid permission from the corporation. They also contended that, while the permission sought for was for construction of a hostel accommodation for girls, the construction actually being carried on was for class rooms for intermediate, degree and MBA courses, and that G.O.Ms. No. 423 MA dated 31.07.1998 was violated. The trial court held that the schedule property in I.A. No. 513 of 2004 was for construction of a stilt, ground and first floor of a hostel building, and not construction of either a high school or a college building, and, therefore, G.O.Ms. No. 423 dated 31.07.1998 was not applicable. The appellate court also reiterated this conclusion of the trial court. Both the courts below chose not to deal with the specific contention that the construction was of a college building and not a hostel building nor did it, while passing the ad-interim injunction order, permit M.C.H. to verify and ensure that the building being constructed was only that of a hostel and not of a college. The Courts below have also ignored the contents of Ex. B-11 letter dated 24.04.2004 wherein the respondent corporation had specifically stated that while the petitioners, (in I.A. No. 513 of 2004), in their application dated 10.06.2003, had sought permission for construction of stilt plus two upper floors, the revised plans submitted by them, vide letter dated 02.04.2004, was for stilt plus four upper floors. If there is any truth in the contention that the building, construction of which was the subject matter of I.A. No. 513 of 2004, was not of a hostel but of a college and that, as against their request for construction of stilt, ground and first floor, the petitioners were constructing stilt, ground plus three floors, then the petition filed in I.A. No. 513 of 2004 is an abuse of process, and the order of injunction has been obtained by misrepresentation, which may well necessitate stringent action. Both the courts below, in not examining the aforesaid contentions urged by the respondent, have failed to exercise the jurisdiction vested in them.

66. A party is not entitled to an order of injunction as a matter of right or of course. Grant of injunction is within the discretion of the court. Shiv Kumar Chadha (1993) 3 SCC 161. Since the relief of ad-interim injunction is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he was not at fault, that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking the relief. His conduct should be fair and honest. Gujarat Bottling Co. (1995) 5 SCC 545.

67. The petitioners, taking advantage of I the order of ad-interim injunction, have completed construction/re-construction of the buildings. The trial court held that the petitioners would suffer irreparable loss and injury which cannot be compensated by pecuniary means, if an order of ad-interim injunction was not granted, since it affected the pride and prestige of an educational institution. The appellate court held that the petitioners were in possession and enjoyment of their respective schedule properties and were entitled to carry on construction/reconstruction of the work. No person can be permitted to violate the law on the plea that, not permitting them to do so, would affect their pride and prestige. The mere fact that they are in possession and enjoyment of the suit schedule land would not confer on the petitioners the right to construct/ reconstruct buildings contrary to, and in violation of, the applicable statutory provisions. While interlocutory orders, passed during the pendency of the suit, are ordinarily not interfered with in proceedings under Article 227 of the Constitution of India, the present case is a glaring instance of construction/reconstruction of buildings being proceeded with, and completed, under the protective cover of the order of ad-interim injunction, in flagrant violation of the law.

68. Reliance placed by the learned Senior Counsel Sri S. Satyanarayana Prasad, on Col. Anil Kak v. Municipal Corporation and Muni Sarvat-Swami Jain SMP Sangh v. Arun Nathuram Gaikwad is misplaced. In Anil Kak , the Supreme Court held that there would not only be an injunction restraining the defendants from demolishing the construction but there would also be an injunction restraining the appellant/plaintiff from making any further construction and from altering or modifying any existing construction. In Muni Sarvat-Swami Jain SMP Sangh the Supreme Court held that departure from the authorized plan, or putting up of a construction without sanction, did not necessarily and inevitably justify demolition of the structure as these were all matters for the Municipal Corporation to decide.

69. The petitioners, having continued and completed construction/reconstruction under the protection of the ad-interim injunction order granted by the trial court, and confirmed by the appellate court, cannot now be heard to contend that, since they had already completed construction/reconstruction they should be asked not to make further construction, while at the same time the respondent corporation should be prevented from demolishing the property. It is settled law that an interim order passed by the court does not confer any right upon a party and is always subject to the final result of the proceedings in court and at the risk and cost of the party obtaining the interim order. Grant of an interim order does not automatically amount to extension of statutory protection. Ouseph Mathai v. M. AbdulKhadir .

70. We see no justification in continuing the order of ad-interim injunction. This Court, in proceedings under Article 227 of the Constitution of India, would, ordinarily, not direct demolition of buildings even if it were satisfied that the construction is unauthorized, and is in violation of the applicable statutory provisions, for these are matters for the municipal corporation to decide in accordance with law. While setting aside the orders of ad-interim injunction granted by the trial court, as confirmed by the appellate court, we make it clear that the M.C.H. shall be entitled, in accordance with the provisions of and the procedure prescribed in the Act, the Bye-laws and the Regulations, to examine the matter and take appropriate action against the petitioners, for having made unauthorized/ illegal constructions, in accordance with law. We also make it clear that if the Municipal Corporation of Hyderabad chooses to proceed against the petitioners, no ex parte order of ad-interim injunction shall be passed, in any suit or action filed in any Court with respect to the suit schedule properties, without hearing the Municipal Corporation of Hyderabad.

71. While in Certiorari proceedings under Article 226 of the Constitution of India, the High Court can only annul the decision of the Court Tribunal it can, under Article 227, also issue further directions in the matter. Hari Vishnu Kamath v. Ahmad Ishaque AIR 1995 SC 233. In appropriate cases the High Court, while exercising supervisory jurisdiction, may also substitute a decision of its own, in the place of the impugned decision, as the inferior court or tribunal should have made. Surya Dev Rai (2003) 6 SCC 657 : 2003 (5) ALT 35.1 (DN SC). To prevent miscarriage of justice the High Court can lay down general principles so that the court/tribunal may act within the limits of their authority. State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela (died) his L.Rs .

72. The Act, Bye-laws and Regulations ensure orderly development of the city and adherence thereto is in larger public interest. Subordinate Courts must maintain a constant vigil and ensure that they are not used as a tool by unscrupulous builders to violate these laws with impunity. We consider it appropriate, therefore, to issue guidelines which the courts below would be well advised to follow:

1. Exceptional circumstances apart, an expartead-interim injunction order should not, ordinarily, be passed. The factors which should weigh with the court in the grant of an ex parte injunction are (a) whether irreparable or serious mischief will ensue to the plaintiff; (b)whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; (c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of an improper order against a party in his absence is prevented; (d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant an ex parte injunction; (e) the court would expectaparty applying for ex parte injunction to show utmost good faith in making the application; (f) even if granted, the ex parte injunction should only be for a limited period of time; (g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court. Morgan Stanley Mutual Fund v. Kartick Das .

2. Ordinarily, an order of ad-interim injunction is passed to maintain status quo with regards the suit schedule property that too only when the tests for grant of such an order are satisfied, the petitioner has approached the court with clean hands and has made a true and complete disclosure of all relevant facts.

3. While an interlocutory order of status quo/injunction restraining municipal authorities from demolishing the building may be justified, an order of injunction enabling them to proceed with construction should, except under special circumstances and for reasons to be recorded in writing, be avoided. Under Order 39 Rule 1 C.P.C, it is only in the event of any of the Clauses (a) to (c) thereunder being proved, by affidavit or otherwise, has the Court been conferred the discretion to grant a temporary injunction to restrain such acts or make such other order for the purpose of staying and preventing such acts.

4. Courts should exercise a great degree of care and caution and ensure that the relevant facts are pleaded, and are supported by evidence, before an order of ad-interim injunction, permitting construction/reconstruction of a building, is passed.

5. The burden lies heavily on the person seeking an order of ad-interim injunction to prima facie establish his legal right for such an order and to have complied with all the statutory provisions applicable for construction/ reconstruction of buildings.

6. As no injunction can be passed by a court permitting a person to violate the law, or to restrain municipal authorities from discharging their statutory duties/ functions, the court should appraise itself of the relevant statutory provisions and not be swayed entirely by the self-serving pleas and evidence adduced by the person seeking its intervention.

7. It is often noticed that some of the officers of municipalities/municipal corporations collude with builders and do not bring the relevant legal provisions to the notice of the court. Their failure would not absolve the court of its duty to call for the required information from either party to satisfy itself that all statutory provisions for construction/ reconstruction of buildings have been complied with.

8. Even in those exceptional cases, where grant of an ad-interim injunction, enabling construction/re-construction/ alteration of a building, may be necessary, adequate safeguards must be provided in the order itself to ensure that the applicable statutory provisions are not violated in the process of construction/ reconstruction/ alteration of buildings.

9. The order of the Court should not disable municipal authorities from monitoring and ensuring that construction of such buildings is in accordance with the statutory provisions prescribed in the Act, the by-laws and the regulations.

10. It must also be borne in mind that orders passed for extraneous considerations may invite disciplinary action against the judicial officers concerned.

Should Disciplinary Action be Taken Against The Judicial Officers Who Passed Such Orders?

73. The glaring inconsistencies and discrepancies, referred to in paragraphs 20 to 25 above, do point a needle of suspicion towards the fact that the impugned orders, of both the trial court and the appellate court, may not merely be a bona fide error. However, mere suspicion would not justify initiating disciplinary action against the officers concerned. Whenever an intolerable error is detected by, or pointed out to, a superior court it is functionally required to correct that error and may, in an appropriate case, and in a manner befitting the dignity of the court, and the independence of the judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, and clear, but rarely as a rebuke. While taking disciplinary, action based on judicial orders, the High, Court must exercise extra care and caution. Kashinath Roy v. State of Bihar . Disciplinary proceedings can be initiated, based on a judicial order, only when there are strong grounds to suspect the officer’s bona fides and that the order itself has been actuated by malice, bias or illegality, otherwise it would adversely affect the morale and independence of the subordinate judiciary, Ramesh Chander Singh v. High Court of Allahabad . Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matters. There must exist reasonable basis for proceeding against the delinquent officer. An erroneous order is not enough to proceed against him. If every error of law were to constitute a charge of misconduct it would impinge upon the independent functioning of judicial officers. To maintain a charge against a judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the judicial order. Zunjarro Bhikaji Nagarkar v. Union of India .

74. Suffice to hold that a high degree of care and caution should be exercised in passing judicial orders more so when it affects larger public interest. Justice must not only be done but must also be seen to have been done. Judicial Officers, like Ceaser’s wife, must ever remain above suspicion. We refrain from saying more.

75. The Order of the II Addl. Chief Judge, City Civil Court, Hyderabad in C.M.A. Nos. 237 and 238 of 2004 dated 28.9.2005, and the Order of the IV Junior Civil Judge in I.A. No.558 of 2004 in O.S. 2655 of 2004 and I.A. No. 513 of 2004 in O.S. No. 2458 of 2004 dated 20.8.2004, are quashed. C.R.P. Nos. 2553 and 2554 of 2006 ate, accordingly, allowed.

A copy of this order be circulated to all the Civil Courts in the twin cities of Hyderabad and Secunderabad.