K Rammohan Rao Vs The State of Andhra Pradesh

K. Rammohan Rao, S/o. Venkateswar Rao, Aged about 64 years, Business, R/o. D.No.4/209-5-2, Mamatanagar, Santanpuram, Kurnool, Kurnool District, Andhra Pradesh.

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Vasireddy Kiran, S/o. Narasimha Rao, Aged about 42 years. Business, R/o. D.No.64/27(2), L.B.S. Nagar, Kurnool, Kurnool District, Andhra Pradesh.

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...Petitioners

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AND

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The State of Andhra Pradesh, Municipal Administration^and Urban Development Department, Secretariat Buildings, Velagapudi, Amaravathi, Guntur District, Rep. by its Principal Secretary.

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The Kurnool Municipal Corporation, Kurnool, Andhra Pradesh, rep. by its Commissioner.

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The Town Planning Officer, Kurnool Municipal Corporation, Kurnool, Kurnool District, Andhra Pradesh.

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...Respondents

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction, more particularly^{oneinthenature}

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of a Writ of MANDAMUS, declaring the Endorsement in nd RoC.No.2Q8661/2019/G3, dated 14.11.2019. issued by^the2 Respondent herein, thereby rejecting the BPS Permission / Application made by the Petitioners herein bearing No.BPS2019/KUR/M0/52/02002, dated 12.02.2019. pertaining to the property of the Petitioners herein bearing D.No.52/198, Survey No.35/5C1A1, Ward No.32, situated at Ujala Gift School, Old Bus Stand, Kurnool Town, Kurnool District, Andhra Pradesh, on the alleged ground that some Court Cases are pending against the site in question, as illegal, arbitrary and contrary to the provisions of Hyderabad Municipal Corporation Act 1955 as amended from time to time and Consequently direct the Respondents herein to allow the Building Penalization Application of the Petitioners herein bearing No.BPS2019/KUR/MO/52/ 02002, dated 12.02.2019, forthwith.

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lA NO: 1 OF 2020

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the writ petition, the High Court may be pleased to stay all further proceedings pursuant to the Endorsement in RoC.No.208661/2019/G3, dated 14.11.2019, issued by the 2"'^ Respondent herein, pending disposal of the above Writ Petition. lA NO: 2 OF 2020 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents to permit the Petitioners to complete to finishing work of construction namely plastering, painting etc of the Petitioners Hotel Building in accordance with sanctioned building permission of Respondent No.2 pending disposal of the Writ Petition in the interest of justice.

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lA NO: 3 OF 2020

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents not to demolish the building^{constructedinaccordance} with sanctioned building permission of the 2"^ Respondent including deviation / setbacks pending disposal of the Writ Petition in the interest of justice.

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Counsel for the Petitioners: SRI P. VEERA REDDY LEARNED SENIOR COUNSEL REPRESENTING SRI CHALLA SIVASANKAR

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Counsel for the Respondent Nos.1 & 3 : GP FOR MUNCIPAL ADMN URBAN DEVELOPMENT Counsel for the Respondent No.2 : SRI POTHAM VENGALA REDDY, SC FOR MUNICIPALITY

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APHC010663852018

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WRIT PETITION NO: 31999 OF 2018

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Between:

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M.Abdul Moiz Khan, S/o.Late M.Abdul Hafeez Khan, Aged about 81 years Occ: Business, R/o.H.No.56/92, E-Fort, Kurnool, Kurnool^District.

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...Petitioner

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AND

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The State of Andhra Pradesh, Rep. by its Principal Secretary Municipal Administration and Urban Development Dept. Secretariat, Velagapudi, Amaravathi, Guntur District.

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Kurnool Municipal Corporation, Represented by its Municipal Commissioner, Kurnool, Kurnool District.

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The Town Planning Officer, Kurnool Municipal Corporation, Kurnool, Kurnool District.

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K. Ramamohan Rao, S/o.Venkateswara Rao, Age Major, R/o.D.No.4/209-5-2, Mamata Nagar, Stantanpuram, Kurnool,^Kurnool District.

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V. Kiran, S/o.V.Narasimha Rao, Age Major, R/o.D.No.64/27(2), L.B.S.Nagar, Kurnool, Kuriiool District.

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...Respondents

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly^{oneinthenatureof} Writ of Mandamus, to declare the Building Permit NO.1016/1544/B/KURL/OVR/2017, dated 18.01.2018 granted^{infavourofthe} Respondents 4 and 5 granted by the Respondents 2 and 3 in respect of premises bearing Door No.52/198, Survey No.35/5C1 Al of Ward-52, besides Ujala Gift Shop, Near Old Bus Stand Road, Kurnool, as illegal, arbitrary and unjust and consequently direct the respondents 2 to 3 to demolish the unauthorized constructions made by respondents 4 and 5 in premises bearing Door No.52/198, Survey No.35/5C1 Al of Ward-52, besides Ujala Gift Shop, Near Old Bus Stand Road, Kurnool.

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lA NO: 1 OF 2018

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the writ petition, the High Court may be pleased to grant stay of further construction by the respondents 4 and 5 in respect of premises bearing Door No.52/198, Survey^No.35/5C1 Al of Ward52, besides Ujala Gift Shop, Near Old Bus Stand Road, Kurnool in pursuance of Building Permission No.1016/1544/B/KURL/OVR/2017,^dated 18.01.2018 issued by the respondent no.2 pending disposal of writ petition.

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IAN0i20F2^

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K. Ramamohan Rao S/o.Venkateswara Rao, Age Major, R/o.D.No.4/209-5-2, Mamata Nagar, Stantanpuram, Kurnool,^Kurnool District.

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V. Kiran, S/o.V.Narasimha Rao, Age Major, R/o.D.No.64/27(2), L.B.S.Nagar, Kurnool, Kurnool District.

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...Petitioners/Respondents 4 & 5

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AND

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M.Abdul Moiz Khan, S/o.Late M.Abdul Hafeez Khan, Aged about 81 Occ: Business, R/o.H.No.56/92, E-Fort, Kurnool, Kurnool^District.

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years.

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...Respondent/Petitioner

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1. The State of Andhra Pradesh, Rep. by its Principal^Secretary, Municipal Administration and Urban Development Dept., Secretariat,^Velagapudi, Amaravathi, Guntur District.

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Kurnool Municipal Corporation, Represented by its Municipal Commissioner, Kurnool, Kurnool District.

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The Town Planning Officer, Kurnool Municipal Corporation, Kurnool, Kurnool District.

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...Respondents/Respondents 1 to 3

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition, the High Court may be pleased to in vacate the "Status-Quo" orders granted in I.A. No. 1/2018 W.P.No.31999/2018 dated 06-09-2018.

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Counsel for the Petitioner: SRI P. VEERA REDDY LEARNED^SENIOR COUNSEL REPRESENTING SRI M. R. S. SRINIVAS Counsel for the Respondent No.1 : GP FOR MUNCIPAL ADMN URBAN DEVELOPMENT

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Counsel for the Respondent No.2 & 3 : SRI POTHAM VENGALA^REDDY, SC FOR MUNICIPALITY

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Counsel for the Respondent Nos.4 & 5 : SRI CHALLA SIVASANKAR The Court made the following Common order:

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APHC010026102020

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IN THE HIGH COURT OF ANDHRA PRADESH 050 AT AMARAVATI :! 0;^ (Special Original Jurisdiction)

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[3460]

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THURSDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION NO: 1624/2020

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Between:

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1.K RAMMOHAN RAO, S/0 VENKATESWAR RAO, AGED ABOUT 64 YEARS, BUSINESS, R/0 D.NO.4/209-5-2, MAMATANAGAR, SANTANPURAM, KURNOOL, KURNOOL DISTRICT, ANDHRA PRADESH.

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2 VASIREDDY KIRAN, S/O NARASIMHA RAO, AGED ABOUT 42 YEARS, BUSINESS, r-kKIUI D.NO.64/27 /o\ L.B.S. NAGAR, KURNOOL, KURNOOL DISTRICT, ANDHRA PRADESH.

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...PETITIONER(S)

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AND

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1.THE STATE OF ANDHRA PRADESH, MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT DEPARTMENT, SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATHI, GUNTUR DISTRICT, REP. BY ITS PRINCIPAL SECRETARY.

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2.THE KURNOOL MUNICIPAL CORPORATION, KURNOOL, ANDHRA PRADESH, REP. BY ITS COMMISSIONER.

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3.THE TOWN PLANNING OFFICER KURNOOL MUNICIPAL CORPORATION KURNOOL, KURNOOL DISTRICT, ANDHRA PRADESH.

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...RESPONDENT(S):

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2

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Counsel for the Petitioner(S):

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1.Sri CHALLA SIVASANKAR

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Counsel for the Respondent(S):

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1.POTHAM VENGALA REDDY SC For Municipal

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Corporation in Rayalaseema Region

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2.GP FOR MUNCIPAL ADMN URBAN DEV

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WRIT PETITION NO: 31999/2Q1R

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Between:

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1.M.ABDUL MOlZ KHAN,, S/0.LATE M.ABDUL HAFEEZ KHAN, AGED ABOUT 81 YEARS, OCC. BUSINESS, R/O.H.NO.56/92, E-FORT,'

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KURNOOL, KURNOOL DISTRICT.

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...PETITIONER

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AND

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1.THE STATE OF ANDHRA PRADESH REP. BY ITS PRINCIPAL

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SECRETARY, municipal ADMINISTRATION AND URBAN

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DEVELOPMENT DEPT.. SECRETARIAT, VELAGAPUDI,

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AMARAVATHI, GUNTUR DISTRICT.

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1. KURNOOL MUNICIPAL CORPORATION represented by ITS

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municipal commissioner, KURNOOL KURNOOL DISTRICT.

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planning officer, KURNOOL MUNICIPAL

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CORPORATION, KURNOOL, KURNOOL DISTRICT

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4.K RAMAMOHAN RAO, S/O.VENKATESWARIL RAO, AGE MAJOR,

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R/O.D.NO.4/209-5-2, MAMATA NAGAR, STANTANPURAM, ■

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KURNOOL, KURNOOL DISTRICT.

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5.V KIRAN S/O.V.NARASIMHA RAO, AGE MAJOR,

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R/0.D.N0.64/27(2), L.B.S.NAGAR, KURNOOL, KURNOOL DISTRICT.

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...RESPONDENT(S):

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3

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Counsel for the Petitioner:

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1.M RSSRINIVAS

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Counsel for the Respondent(S):

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1.POTHAM VENGALA REDDY SC For M.Corporation in Rayalaseema Region

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2.GP MUNCIPAL ADMN AND URBAN DEV(AP)

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3.CHALLA SIVASANKAR

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The Court made the following:

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1

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THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION NO: 1624 OF 2020

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AND

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WRIT PETITION NO: 31999 of 2018

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COMMON ORDER:

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W.P.No.1624 of 2020 is filed questioning the Endorsement^vide RoC.No.208661/2019/G3, dated 14.11.2019 issued by Respondent No.2 rejecting the BPS Permission/Application made by the Petitioners dated 12.02.2019 in respect of the property bearing D.No.52/198, Sy.No.35/5C1A1, Ward No.32, situated at Ujala Gift^{School,OldBus}

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•Stand, Kurnool Town and District, as illegal and arbitrary.

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W.P.No.31999 of 2018 is filed questioning the Building^Permit NO.1016/1544/B/KURL/OVR/2017, dated 18.01.2018 granted^infavour of Respondent Nos.4 and 5 by Respondent Nos.2 and 3 in respect of premises bearing D.No.52/198, Sy.No.35/5C1 A1 of Ward-52,^besides Ujala Gift Shop, near Old Bus Stand Road, Kurnool Town and^District, as illegal and arbitrary.

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These Writ Petitions arise out of the same issue and inter•related, therefore, are being disposed of by a common^orderwiththe consent of both sides counsel. \

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W.P.No.1624 of 2020 is taken as lead case and the facts in brief are as follows;

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One Mr. Abdullah Khan was the absolute owner and possessor of premises bearing D.No.52/198, Sy.No.35/5C1A1 Ward No.32, situated at Ujala Gift School, Old Bus Stand, Kurnool Town and District. On 18.01.2013, an agreement of sale was executed by the Petitioners agreeing to purchase the property in question for a sum of Rs. 1,19,00,000/-. The Petitioners claim to have paid the total amount on various dates. It is also stated that the Petitioners had sold two properties at Tolichowki, Hyderabad under registered Sale Deeds vide document Nos.3749 of 2014 and 3750 of 2014, dated 30.09.2014.

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While so, Mr. Gulab Khan @ Wasif Ali Khan played^fraud on Mr. Abdullah Khan and obtained a registered General Power of Attorney dated 11.02.2015 vide document No.931 of 2015 and immediately executed a Sale Deed in the year 2015 along with his mother by name Smt. Rubeena Khatoon. Pursuant to the said General Power of Attorney, said Mr. Gulab Khan @ Wasif Ali Khan and Smt. Rubeena Khatoon executed a registered Sale Deed in favour of Mr. K. Thukaram and others.

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On noticing the fraud perpetuated by Mr. Gulab Khan @ Wasif Ali Khan and Smt. Rubeena Khatoon, the original owner i.e. Mr. Abdullah Khan filed a suit O.S.No.107 of 2015 on the file of Principal District Judge, Kurnool seeking for cancellation of the registered General Power of Attorney, which was fraudulently^obtained by Mr. Gulab Khan @ Wasif Ali Khan and consequently seeking relief to cancel the registered Sale Deeds bearing document Nos. 1280 of 2015, dated 25.02.2015 and other consequential^reliefs. 7. It is further stated that elaborate pleadings were^raised in the suit explaining the fraud perpetuated on Mr. Abdullah Khan by his grandson Mr. Gulab Khan @ Wasif Ali Khan and his mother Smt.Rubeena Khatoon. Subsequently, Mr. Abdul Moiz Khan^filedasuit O.S.No.71 of 2015 on the file of the I Additional District Judge, Kurnool seeking specific performance of the Agreement of Sale, dated 18.02.2013 and also to direct the original owner^{i.e.Mr.Abdullah} Khan and subsequent purchasers to execute registered^SaleDeed in respect of Item No.1 of the plaint schedule property, and also Defendant No.1 and Mr. Abdullah Khan to execute a registered^Sale Deed in respect of Item Nos.2, 3, 4 & 5 and for consequential^reliefs.

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Along with the said suit, the Petitioners filed I.A.No.97 of 2015 seeking for interim ini injunction restraining the Respondents/ Defendants therein i.e. Mr. Abdullah Khan. Mr. Gulab, Khan @ Wasif Ali Khan and Mr.K. Thukaram from alienating the property pending disposal of the suit. It is stated that the trial Court allowed the said I.A restraining Respondent Nos.1 to 3 from alienating the scheduled property vide elaborate order dated 29.09.2015 Subsequent to the order of injunction, registered Sale Deeds were executed by Defendant No.3 i n favour of Respondent Nos.4 and 5 vide document Nos.8240 of 2015 and 8241 of 2015, dated 26.10.2015. It was further stated that Respondent Nos.4 and 5 were impleaded in the suit vide Order dated 24.04.2018 passed I.A.No.33 of 2016 and they were arrayed as Defendants in the said suit.

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It is also stated that a criminal case was also filed against the General Power of Attorney Holder and the subsequent purchaser l e- Mr. Thukaram vide Crime No.36 of 2015 before I Town Police Station, Kurnool for the offence punishable under Section 420 read with 34 of IPC and that the Judicial Magistrate of I Class, Speciaf Mobile Court, Kurnool, after considering the evidence, held that the General Power of Attorney Holder as well as the subsequent purchaser '^found guilty for the offence punishable under

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5

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Section 420 read with 34 of IPC and they were sentenced to undergo

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simple imprisonment for a period of 3 years and also to pay a fine of Rs. 10,000/- in default.

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It is also stated that the Petitioners after returning to India in June, 2018 had noticed that Respondent Nos.4 and 5 were making constructions contrary to the injunction order passed by the trial Court. When the Petitioners approached the Municipal authorities^aboutthe order passed by the trial Court, they were informed that the building permission was issued in favour of Respondent Nos.4^and 5 vide building Permit No.1016/1544/B/Kur./OBR/2017, dated 18.01.2018 issued by Respondent No.2. As the Petitioners were diligentlypursuing the suits O.S.No.71 of 2015 and O.S.No.107^of2015and considering the conviction in C.C.No.339 of 2016 the building permission granted in favour of the Respondent Nos.4 and 5 was questioned to be illegal, this Court in I.A.No.1 of 2018 passed an interim order on 06.09.2018 directing both parties^{tomaintainstatus} quo with regard to the said premises.

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Respondent Nos.4 and 5 had filed Counter Affidavit along with an application seeking for vacating the interim order of status quo and this Court dismissed the vacate status quo application^on03.11.2020 and questioning the same, appeal is also filed.

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In the Counter Affidavit filed by Respondent No.2 it was stated that at the time of Respondent Nos.4 and 5 submitting the building plan claiming title to the property, the disputes over the property were not brought to their notice. It was further stated that a notice under Section 452(1 )(2) of the A.P. Municipalities Act, 1955 was also issued on 10.07.2018 to Respondent Nos.4 and 5 to stop construction as the same was commenced without any notice to the Respondent authorities. It is also stated that while the construction was at the initial stage, Respondents 4 and 5 were restricted to proceed further.

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It Is further stated that after confirmation of the building permit dated 30.11,2018, Respondent Nos.4 and 5 were permitted to continue to construct the building. Later, after filing W.P.No.1624 of 2020, status quo order was passed in W.P.No.31999 of 2018 and another notice was issued by the Respondent authorities on 19.09.2018 to stop construction and to maintain status quo as per the order of this Court. It was further stated that approval of the building plan in favour of Respondent Nos ■ 4 and 5 was automatically generated in DPMS system.

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It was also stated in the Counter Affidavit of Respondent^No.2 that the staff of Town Planning Office, Kurnool Municipal Corporation initiated action by locking the gate in the said building^anddirected Respondent Nos.4 and 5 not to violate the status quo order. The photographs taken on 15.10.2018 are filed along^{withtheCounter} Affidavit. It is further stated that the Respondent^{authoritieswouldtake} appropriate action subject to outcome of the Writ Petitions.

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In the Counter Affidavit filed by Respondent Nos.4 and 5 it was stated that the registered Sale Deeds executed in their favour are not vitiated and they were executed after passing^{ofconsideration.} It was stated that the Petitioners have no right, title or possession over the property until and unless the trial Court adjudicates the suit O.S.No.71 of 2015 in favour of the Petitioners.

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It is further stated that the Petitioners having filed suit O.S.No.71 of 2015 seeking for specific performance of Agreement of Sale ought to have waited till the outcome of the suit rather than filing the Writ Petitions. It is further stated that Respondent^Nos.4and5are bona fide purchasers and if the suit O.S.No.71 of 2015 is adjudicated in favour of the Petitioners, no cause survives for filing the present Writ Petitions. Respondent Nos.4 and 5 had also filed a suit O.S.No.107 of 2015 before the Principal District Judge, Kurnool

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seeking for grant of permanent injunction against the Defendants therein, who are not the parties to the Writ Petition.

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While W.P.No.31999 of 2018 is pending. Respondent Nos.4 and 5 had filed an application on 12.02.2019 for regularization of the building under Building Penalization Scheme (BPS). The said application was rejected vide Endorsement dated '14.11.2019. As there is a dispute wi with regard to the subiect sitp anri uojecr site and the registration of the property in favour of Respondent Nos.4 and 5, the building application was rejected. Hence, the present Writ Petition came to be filed.

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Heard Sri M.R.S. Srinivas learned counsel for the Petitioners in W.P.No.31999 of 2018 and Sri P. Veera Peddy, learned Senior Counsel representing Mr. Challa Siva Sankar I (earned counsel for the Petitioners in W.P.No.1624 of 2020 and the learned Standing Counsel appearing for Respondent Nos.4 and 5.

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In the course of arguments, Sri M.R.S. Srinivas. learned counsel would contend that the constructions were made brazenly in violation of the order of status QUO passed by this Court and the Sale Deed executed in favour of Respondent Nos.4 and 5 is also vitiated. as the same is in contravention with the order of injunction passed by the trial

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Court in I.A.No.97 of 2015. It was further contended that the interim order of injunction was an elaborate order passed by^the trial Court running into 25 pages. The contentions of the vendors of Respondent Nos.4 and 5 were taken note,and the order of injunction was passed.

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It was also contended by learned counsel for the Petitioners^that •the proposed sale in favour of Respondent Nos.4 and 5 was also referred to in the interim order of injunction and conscious of the same, the trial Court had granted injunction and the same had attained finality. Respondent Nos.4 and 5 have purchased the property under a registered Sale Deed subsequent to the order of injunction^andthe same ought to be treated as void. Therefore, the building permission granted in favour of Respondent Nos.4 and 5 is illegal and, therefore. rejection of the regularization of the building under^BPScannot be faulted with.

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Sri P. Veera Reddy, learned Senior Counsel appearing^forthe Petitioners in W.P.No.1624 of 2020 would contend that Respondent Nos.4 and 5 are bona fide purchasers and the Sale Deed though executed subsequent to the order of the injunction by the trial Court, cannot be said to be a void document, but it is only is a voidable document, and it is only subject to outcome of the^{suitsO.S.No.71} of 20.15 and O.S.No.107 of 2015. It was further contended that merely

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because a sale deed was executed in contravention with the order of injunction, the same perse cannot be treated as a void document.

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22.. It is further contended that Respondent Nos.4 and 5 have parted with substantial consideration and obtained registered Sale Deeds in their favour and bonafidely applied for building plan with an intention to enjoy the property in question. It is further contended that as on date, title to the property stands in the name of Respondent Nos.4 and 5. Therefore, issuance of building plan cannot be faulted with.

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It is the further contention of learned Senior Counsel that the Endo.rsement dated 14.11.2019 wv I vtioiywi lijr-ri i, ! W annot be sustained, as the scheme for BPS cannot be extended to the sites of this nature, since regularization would enure to the benefit of the Petitioners in the event of their claim in O.S.No.71 of 2015 is adjudicated in their favour. Therefore, no useful purpose would be served to the Petitioners in not regularizing the structure and the application for regularization/penalization should be considered only from ‘B’ point Municipal lands, rather than claims and counter-claims over the property in question.

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Having heard the respective counsel, this Court framed the following issues/ points for consideration'

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Whether the building permission given in favour^ofthe Petitioners on 18.01.2018 Is sustainable?

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Whether the rejection of BPS applications made by the Petitioners on 14.11.2019 by Respondent No. 2 is within the scope of the A.P. Municipal Corporations Act, 1955?

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The Hon’ble Supreme Court in Thomson Press (India)^Limited V. Nanak Builders and Investors Private Limited and Others 1 considered the validity of a sale deed executed in^{breachofanorder} of injunction. In the said case, the Hon’ble Supreme^{Courtheldthatthe} party committing the breach may incur the liability to be punished for the breach committed, but the sale by itself may remain valid as between the parties to the transaction subject to any directions by the Civil Courts. Paragraph No.53 is extracted below;

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“53. There is, therefore, little room for any doubt^{thatthetransferof} the suit property pendente lite Is not void ab Initio^andthatthe purchaser of any such property takes the bargain subject^tothe rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent court, we do not see any reason why the breach of any such injunction^should render the transfer whether by way of an absolute sale^orotherwise ineffective. The party committing the breach may doubtless^incur the-^kability to be punished for the breach committed by it but the

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^(2013) 5 see 397

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sa/e by itse/f may remain valid 3s between the transaction parties to the only to any directions - which the in the suit against the competent court vendor.

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These issues were again considered in Balwantbai ^omabhai Bhattdari ^°n,abhai Contractor (Deceased), Rap. ByLRs and otters" where sale deeds

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the undertaking given by the defendants executed in violation of to the contrary were annulled. In this Judgement, the Hon’ble Supreme Court took note of judgments on similar fact scenarios in De//?/ Development Authority v. Skipper Construction Co. (P) Ltfj ^ Vidur Impex & Traders (P) Ltd. V. Tosh Apartments (P) Ltd. ^ and Jehai Tanti v. Rageshwar Singh^ the Full —'.on uf Madras Hi 3h Court in Centuary Flour Mills Ltd. V. s. Suppaiah^ and the Calcutta High Court in Sujjf Pal V. Prabir Kumar Sun' os well as Judgements where contra vi view was taken i. a. Thomson Press (India) Limited V. Alanak Builders and Investors Private Limited and Others and held that Section 52 of the Transfer of Property Act, 1882 does not render 0 pendente lite transfer void, yet the Court while exercising contempt jurisdiction may be justified to pass directions

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^ (2023) 17 see 545 ^ 1996 see Online Se 75 J (2012) 8 see 384 ,(2013)14 see 689 7 Online Mad 73 1985 see Online Cal 146

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either for reversal of the transactions in question by declaring the said transactions to be void or proceed to pass appropriate directions to the authorities concerned to ensure that the contumacious conduct on the part of the contemner does not continue to enure to the advantage of the contemner or anyone claiming under him. Paragraph No.89 thereof is extracted below;

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’89. Thus, although Section 52 of the 1882 Act does not render a transfer pendente lite void, yet the court while exercising contempt jurisdiction may be justified to pass directions either^{forreversalof} the transactions in question by declaring the said^{transactionstobe} void or proceed to pass appropriate directions to the authorities j-s y-v /~J 4 •>~i <->• -it-x.—vlU ^ .a jr /^rr/MC7U LU uiatt the CufitUnlai ious conduct Of i//t? jJafL U! the contemner does not continue to enure to the advantage^ofthe contemner or anyone claiming under him. ”

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Coming back to this case, undisputedly, the sale deed^infavour of the Petitioners was executed after the trial Court passed an order of injunction restraining the Defendants from alienating the property in O.S.No.71 of 2015. The title to the property stood passed on to the Petitioners and the Sale Deed is not in question. It^{isinformedtothe} Court that no application was filed seeking to punish for violating the order of injunction under Order 39 Rule 2(a) CPC.

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It IS to be noted that the filing of application under Order 39 Rule 2(a) CPC is optional, as the punishment contemplated for breach of injunction is attachment of the property of the contemnor and also order the contemnor to civil prison for a period up to three (3) months. For ordering to civil pri prison, the Plaintiff would have to make payment in the Civil Court. The Plaintiff having not filed any application under Order 39 Rule 2(a) CPC in the civil Court, cannot raise contentions in these Writ Petitions.

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Apart from that, in the present case, this Court is only concerned with the Municipal laws and the application filed under BPS Even assuming that the 'Petitioners are not entitled for the reliefs => s they are beneficiaries of the breach of injunction and sale deed i IS assumed to be cancelled, still there ISi no bar/injunction for the erstwhile owner i.e. vendor of the Petitioners to proceed with construction or seek for regularisation as the order of ini injunction was only against sale of property.

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As regards the guidelines for Regulation and Penalization of Buildings Constructed in deviation to the sanctioned plan. Rules were framed vide G.O.Ms.No 14, Municipal Administration and Urban Development (M) Department, dated 04.01.2019 under Section 455-AA of the Municipal Corporations Act, 1955. The Rules

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were titled as “The Andhra Pradesh Regulation and Penalization^of Buildings Constructed Unauthorizedly and In Deviation to the Sanctioned Plan Rules, 2019”. The Rule 7 thereof specifies^sitesfor which the Penalization Rules would not apply. As per Section 7(i) one of the grounds for refusal to sanction building regularization is where the sites are under legal litigation/disputes regarding ownership of the site/building.

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It is on the basis of this Rule, the impugned order was passed refusing BPS application of the Petitioners. A reading of Rule 7(i) of the Rules would disclose non-applicability of the Rules^wherethere is dispute regarding ownership. In this case, there is no dispute regarding ownership, as the suit filed by the Respondents is for specific performance. The very nature of the suit is in recognition of ownership rights of the Defendants in the suit and the Agreement of Sale said to have been executed by them. In that context,^there is no dispute of title perse in specific performance suits.

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In the absence of any dispute of title to the property, the refusal to consider the BPS application of the Petitioners appears to be misconceived. Therefore, the Endorsement issued by Respondent No.2 vide RoC.No.208661/2019/G3, dated 14.11.2019 is liable to be set-aside.

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For the foregoing reasons, (i) The W.P.No.1624 of 2020 is allowed and the Respondent authority shall re-consider the application of the Petitioners for BPS in terms of The Andhra Pradesh Regulation and Penalization of Buildings Constructed Unauthorizedly and In Deviation to the Sanctioned Plan Rules, 2019.

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(ii) The W.P.No.31999 of 2018 is dismissed. (iii) No order as to costs.

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