Tummala Srinivas and others vs Municipal Corporation, Hyderabad and others

The five petitioners in this writ petition pray for a writ of Mandamus declaring the action of the respondents in high handedly and illegally demolishing the premises in their occupation bearing No.6-3-1192/6 near Begumpet Fly Over, Begumpet, Hyderabad, as illegal and void and for a consequential direction to pay compensation for their illegal acts. Initially they approached the civil Courts of the X Junior Civil Judge, City Civil Court, Hyderabad against the landlord of the premises and also obtained ad-interim injunction restraining the landlord from dispossessing the petitioners from the premises in possession of each of the petitioners. However, they filed this writ petition, this time against the Municipal Corporation, the Station House Officer, Punjagutta Police Station and two Cabinet Ministers of State of Andhra Pradesh. The writ petition is also against two private persons who are none other than the father of one landlady and the husband of another landlady who between them own the five commercial shops which were allegedly leased out to the petitioners.

According to the petitioners, the 3rd respondent herein granted lease to the petitioners in respect of the shops belonging to his wife and daughter. The petitioners are carrying on various types of individual business like STD, Xerox, Stationery and Inter-net Services etc. The 4th respondent herein appears to have obtained development rights for the property known as Raja Jitendera Prasad Devdi behind the premises of the petitioners. He started constructing a multi-storied complex. When the landladies (lessors) threatened to dispossess the petitioners, they approached the civil Court and filed suits for permanent injunction. The civil Court also granted ad-interim injunction on 15-10-1999. Such injunction was granted by the civil Court in IA No.1155 of 1999 in OS No.4858 of 1999 filed by the first petitioner, in IA No.1154 of 1999 in OS No.4857 of 1999 filed by the third petitioner, in IA No.1156 of 1999 in OS No.4859 of 1999 in the suit filed by the fourth petitioner. Similarly, the Court of the XIX Junior Civil Judge issued similar injunction order in IA No. 1368 of 1999 in OS No.4861 of 1999 filed by the 2nd petitioner and the same Court also granted similar injunction in another IA No.1167 of 1999 in OS No.4860 of 1999 filed by the 2nd petitioner. OS No.4861 of 1999 is in respect of the shop bearing Municipal No.6-3-1192/5 and OS No.4860 of 1999 is in respect of the shop bearing No.6-3-1192/6. The fifth petitioner also obtained an order of status quo as on 12-11-1999 in IA No. 1310 of 1999 in OS No.5308 of 1999 from the Court of the IV Junior Civil Judge, City Civil Court, Hyderabad.

It is the allegation of the petitioners that the landladies transferred their property to the fourth respondent, but the lease was not attorned. After all this on 10-12-1999 at 5.30 p.m., it is alleged, the 4th respondent came with 500 strong labour force and demolished the compound wall dividing the petitioners'' premises and the property belonging to the fourth respondent. A complaint was lodged with the 2nd respondent duly producing the Court orders granting injunction/status quo. The petitioners also issued telegrams to the Chief Minister, Home Minister etc., and also filed applications under Order 39, Rule 20-A of CPC (CPC) for appointment of a Commissioner. On 11-12-1999 when the petitioners were in civil Court in connection with their applications under Order 39, Rule 2-A of CPC, they received the message on telephone that the 4th respondent started pulling down the shops/mulgies by engaging 600 workmen. The petitioners rushed to the spot and the entire structure to an extent of 15x facing the main road was demolished. When the petitioners saw, there was a contingent of police personnel present and inspite of the petitioners producing the copies of the orders of the civil Court, the police and respondents 3 and 4 did not take any action. On that day, according to the petitioners, respondents 5 and 6 came to the site and advised the police personnel not to give any assistance to the petitioners. Then they approached the brother of the first petitioner who is a lawyer practicing in this Court. His efforts to convince the authorities about the Court orders proved futile. These are allegations made by petitioners in the affidavit.

The petitioners submit that the 4th respondent carried out the demolition and got a press statement issued by the Assistant City Planner of Municipal Corporation to the effect that the demolition of the premises was undertaken as the same was obstructing the road widening work. This, according to the petitioner is contrary to the provisions of Hyderabad Municipal Corporation Act, 1955 (the Corporation Act) and the provisions of A.P. Urban Areas (Development) Act, 1975 (hereafter called the Urban Act).

The petitioners also allege that the Municipal Corporation has resorted to demolition of the petitioners'' premises in an illegal manner by colourable exercise of power. For this reason, the petitioners seek a declaration against the Municipal Corporation, against the police, against the three persons holding public office and two private individuals.

A reading of the affidavit shows that the main complaint is against the 4th respondent, a private citizen. The petitioners repeatedly alleged that the 4th respondent came with a work force of 500-600 people on 10-12-1999 and 11-12-1999 and demolished their shops. The photographs placed before this Court belie this contention. The status of the shops as seen from Ex.P11, P12, P13 and P14 which are the photographs, is that till 12-12-1999 the shops alleged to be under lease to the petitioners were in tact and they were not demolished. Ex.P13 which contains photographs showing the status of the petitioners'' premises as on 14-12-1999 shows that the shops are in debris. Be that as it may, the petitioners are well educated persons. They are aware of their rights. In fact, all of them approached the civil Court and obtained injunction orders on 14-10-1999 and 15-10-1999. Therefore, nothing prevented the petitioners to approach the civil Court against the fourth respondent when allegedly he came at 5.30 p.m., on 10-12-1999 with the intention to demolish the shops leased out to the petitioners. Even on 11-12-1999 and 12-12-1999 being Saturday and Sunday, nothing prevented the petitioners to approach this Court by way of a House Motion, when even as per the photographs produced by them, the shops were not demolished. It is presumably because the petitioners were confident that the ad-interim injunction orders issued by the civil Courts against the landladies will act as a deterrent against the respondents 3 and 4. That may be the reason why on 11-12-1999 admittedly they filed the applications before the civil Court under Order 39, Rule 2-A of CPC.

These averments lead to an inference that the main grievance of the petitioners is only against the fourth respondent and not against the Municipal Corporation and others.

To bring it within the four corners of public law remedy of judicial review under Article 226 of the Constitution, the petitioners alleged that the Assistant City Planner issued a press statement at the instance of the fourth respondent that the petitioners'' premises was demolished as it was obstructing the road widening work. Nowhere in the affidavit it is stated that the Municipal Corporation of Hyderabad or its demolition squad was involved in the alleged demolition of the premises by the fourth respondent. It is not possible to record any categorical finding that respondents 5 and 6 were present at the site on 11-12-1999 and directed the police to render all the assistance to the fourth respondent. This requires unimpeachable evidence and the self-serving affidavit of the petitioners is not sufficient for arriving at such a conclusion. Therefore, it has to be held that the writ petitioners'' grievance is only against the fourth respondent and, therefore, the public law remedy of writ petition is not maintainable. The petitioners'' remedy lies elsewhere seeking appropriate remedy against the fourth respondent in appropriate Forum.

The learned Counsel for the petitioner, Mr. A. Ramnarayan, does not seriously dispute about the laches on the part of the petitioners. He submits that though seeking the relief of compensation may require evidence and proof regarding the actual damage to the property of the petitioners, still the relief of declaration can be given by this Court in exercise of its powers of judicial review. Therefore, he prays that this Court may declare the action of the respondents as illegal and void and relegate the petitioners to the remedy of suit for claiming compensation.

The learned Counsel for the petitioner also relies on the judgment of the Supreme Court in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, , Rudul Sah Vs. State of Bihar and Another, , M. Rajkumar and Others Vs. The Excise Superintendent, Hyderabad and Others, and 3 ACES, Hyderabad Vs. Municipal Corporation of Hyderabad, . The learned Counsel for the petitioner submits that these judgments are authority for the proposition that when Municipal Corporation is taking action for removal/demolition of the unauthorised construction, the Corporation has to issue notice to the concerned person and that this Court is also competent to award compensation in exercise of its powers under Article 226 of the Constitution.

Article 226 of the Constitution empowers the High Court to issue writs in the nature of Writ of Mandamus, Writ of Certiorari, Writ of Prohibition and Writ of Habeas Corpus. These writs are intended to enforce the fundamental rights of the citizens as well as to enforce the statutory duties of authorities and the remedy under Article 226 is intended to provide a public law remedy in a summary and expeditious manner. The plain language of Article 226 does not take within its fold the relief of declaration. But the question whether a declaratory relief can be given under Article 226 of the Constitution or not is no more res integra. In Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, , the Apex Court held as follows:

"This Court''s power under Article 32 are wide enough to make even a declaratory order where that is the proper relief to be given to the aggrieved party."

In the same context the Hon''ble Supreme Court in Kochunni''s case (supra), observed that for granting declaratory relief it may be necessary to decide disputed questions of fact. ''''If the petition and the affidavits in support thereof are not convincing and the Court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. Therefore, subject to the production of cogent, convincing and unimpeachable evidence, the Court''s power under Article 226 to declare the citizen''s right is conceded. In this case, the narration of the averments in the affidavit shows that there are many disputed questions of fact, which require elaborate evidence. Therefore, this writ petition is not proper remedy.

The relief of declaration of status or rights was governed by Section 42 of the Specific Relief Act, 1877. The said Act was repealed and Section 42 of 1877 Act was re-enacted as Section 34 of the Specific Relief Act, 1963 (the Act). Section 34 of the Act reads as follows:

"34. Discretion of Court as to declaration of status or rights:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any other relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation :--A trustee of property is a ''person interested to deny'' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."

The proviso to Section 34 prohibits any Court to grant a declaration where the petitioner being able to seek further relief than mere declaration of title omits to seek further relief. In this case, at the bar, as noticed above, the learned Counsel for the petitioners repeatedly submitted that this Court may declare the action of the respondents as illegal and unauthorised and leave the other relief to be granted by the civil Court in an appropriate proceedings to be initiated by the petitioners. Therefore, the petitioners have given up the relief of claiming compensation. This, in my view, does not entitle the petitioners for any relief under proviso to Section 34 of the Act.

There is no gainsaying to observe that the proviso to Section 34 of the Act apply where the subject matter of the action pertains to rights in private law or rights in public law. In so far as declaratory relief is concerned, with few exceptions, there is no difference between public law and private law and the proviso to Section 34 equally applies in both the areas. For these reasons also the writ petition is liable to be dismissed.

Another aspect of the matter is that when the lis involves adducing copious evidence, the public law remedy of declaration, even though available in appropriate cases like the cases which are exclusively within the jurisdiction of a Court of judicial review, ordinarily, is not available for the consequential relief would only become a matter of course which may be granted or may not be granted by a civil Court. Any such declaration by the highest Court of record would amount to depriving the civil Court of its jurisdiction.

In public law, the declaratory jurisdiction of the Court of judicial review has no limitations, except those which Court itself recognises as falling in the realm of "impropriety". English Law recognised certain cases which fall outside the declaratory jurisdiction. These areas are (i) foreign elements, (ii) parliamentary proceedings; (iii) royal prerogative; (iv) extra legal issues, and (v) theoretical issues including advisory opinions.

The cases where there is no dispute in existence, where the dispute is based on hypothetical facts, where the dispute ceased to be of practical significance, where the declaration can be of no practical consequence, are treated as forming part of the class of cases under the heading ''theoretical issues''. If the consequential relief claimed is inseparable part of the main declaration, even such class of cases are excluded from the declaratory jurisdiction. The other class of cases outside the declaratory jurisdiction of the Court are the cases where the Court having supervisory jurisdiction ordinarily does not exercise the declaratory jurisdiction which is best left to the Court of original jurisdiction (See "The Declaratory Judgment" by I. Zamir - 1962). In this case, though under Article 226 the High Court has original jurisdiction, being a Court of supervisory jurisdiction under Article 227 of the Constitution and also being Court exercising superintendence over the subordinate Courts, the exercise of ''declaratory jurisdiction'' in a matter of this nature is not called for and in my considered opinion not permissible.

The various decisions submitted by the learned Counsel for the petitioners are to the effect that when there is a gross violation of fundamental right to life, the public law remedy takes in its fold, the power of granting compensation for violating the fundamental right to life which is a public law remedy. In this case, no right to life can be said to be violated by depriving the alleged rights of the petitioners to carry on business. Therefore, the judgments relied on by the learned Counsel for the petitioners are of no avail. The other decisions of this Court in Raj Kumar''s case (supra) and 3 Aces case (supra), lay down the law to be adhered to by Municipal Corporation when any action is taken under Sections 452, 461 or 626 of the Corporation Act. As already held by me, the main grievance of the petitioners in this case is against the fourth respondent. Hence, this aspect of the matter does not require any further elucidation.

For these reasons, I do not see any merit in the writ petition and it is accordingly dismissed. There shall be no order as to costs.