KAMALAMMA AND ANOTHER Vs. SRIRANGAM SUBBA RAO AND ANOTHER
HIGH COURT OF ANDHRA PRADESH
Kamalamma And Another
Srirangam Subba Rao And Another
Click here to view full judgement.
Obul Reddi , J. -
(1.) These two appeals, L.P.A. 117/69 preferred by the defendants and L.P.A. 147/71 preferred by the plaintiff, arise out of the judgment of our learned brother, A.D.V. Reddy, J., in C.C.C.A, 23/65 confirming the judgment and decree of the trial court in O.S. 38/63 only to the extent of the mandatory injunction against defendants 1 and 2 declining to grant the said injunction against the 3rd defendant, the Municipal Corporation of Hyderabad. It is for the reason that perpetual and mandatory injunctions are granted against defendants 1 and 2 that they have referred the former appeal and for the reason that mandatory injunction was not granted against the 3rd defendant, the plaintiff has chosen to prefer the other appeal.
(2.) The learned Advocate-General appearing for the defendants (the parties will be referred to in the manner they were arrayed in the plaint) mainly contended that the Hyderabad Municipal Corporations Act, Act II of 1956 (Hereinafter referred to as the Act) does not confer any legal right on the owner of a neighbouring or adjacent building and when the Act does not confer any such right, he cannot lay action in a civil court for a it mandatory injunction for pulling down the construction put by his neighbour on the ground that the building constructed by his neighbour is not in accordance with the sanctioned plan. The legal obligation, if any, of the defendants, according to the learned Advocate General, is to the Municipal Corporation and not to any particular individual as such as the Act does not create any private rights in individuals or adjacent owners and therefore when the Municipality compromised or compounded the violation, if any, in not constructing the building in accordance with the sanctioned plan, a neighbour or any other member of the public has no right to move the Court either for a mandatory injunction or for a permanent injunction. It is also his case that the plaintiff has not laid action on the ground of infraction of his easementary right and when there is no invasion into his easementary rights, he cannot question the construction of the building by the defendants, which, though it may not be in accordance with the sanctioned plan, was ultimately approved by the Municipality. Another ground urged by the learned Advocate General is that it is about nine years since the building has been constructed and even assuming without conceding that the plaintiff has a legal right to seek the injunctions he sought in the Court on equitable grounds the Court shall not grant a mandatory injunction for pulling down the constructions put at a heavy cost after a heavy cost after a lapse of nearly nine year.
(3.) Mr. Sankara Sastry appearing for the plaintiff strenuously contended relying upon the findings recorded by the trial Court as also the single Judge that to the extent the learned single Judge agreed with the trial Court there is absolutely no reason to disturb those findings recorded by the two Courts and that when the discretion in granting the mandatory injunction has been properly exercised by Two Courts, it is not ordinarily open to the appellate Court to set at naught the relief granted merely for the reason that the construction was completed about nine years ago without regard to the fact that the defendants had obtained a stay of the execution of the decree, both when they preferred the first appeal and later after preferring the L.P.A. It is also contended by Mr. Sastry that though the Act does not expressly entitle a neighbouring owner of a building to lay action in a civil Court for the reliefs that are now sought in this case, there is an implied right conferred upon him under the Municipal law and as such he is entitled to not only ask for reliefs against defendants 1 and 2 but also against the 3rd defendant so as to obtain a mandate from this Court that it shall perform the statutory functions by obeying the decree of this Court.;
Copyright © Regent Computronics Pvt.Ltd.