validity of jurisdiction
Querist :
Anonymous
(Querist) 16 October 2010
This query is : Resolved
when a case is pending in high court and a contempt case is also pending can the pettitoner approach the lower court and get a status quo?
J K Agrawal
(Expert) 17 October 2010
Depends upon facts and relief sought
Querist :
Anonymous
(Querist) 17 October 2010
sir,
The facts of the case are that we are residing in a flat and are one of the owners. One Mrs & Mr.V.S.Rao who are co-owners of an flat who are having a duplex apartment wanted to extend their duplex house by extending into the common area and they approached the association of flat owners on 31st january 2010 asking for their permission.
After several delibrations some of the owners objected to it. But they started constructing the illegal and unauthroised structure on 5th Feb 2010. We approached the Ghmc and complained to them about the illegal construction.
The Ghmc issued a notice U/s.452A of HMC act on 9th Feb 2010 to stop further construction. They did not heed to the notice and we gave further complaints to the Ghmc but no further action was taken, as they are close to one of the ministers and the minister has asked the Ghmc not to intervene. The minister also came to our flats and tried to influence some of the owners.
So, some of us approached the Hon'ble High Court of Andhra Pradesh and asked the court to intervene and stop further construction and demolish the constructed portion. The Hon'ble High Court on 5th March issued a stay to stop further construction and asked the official rspondents the GHMC to see to that no further construction is made pending disposal of the writ petition. An wire order was also given to them on the same day.
But, Mrs & Mr.V.S.Rao ignored the order and continued the work and our representations to the Ghmc that there is a violation of the court orders was not attended to.
So, we filed a contempt case against Mrs & Mr.V.S.Rao and the Ghmc.
Meanwhile, Mrs & Mr.V.S.Rao applied for regularisation of the illegaly constructed structure under U/s 455/A of HMC act 1955.
But the Ghmc rejected the proposal as it does no satisfy the rules in force anditimated it to them on 21st May 2010. As Mrs & Mr.V.S.Rao did not comply to removing the illegal structure the Ghmc issued a notice U/S 636 of HMC act 1955 to them on 1st June 2010.
Mrs & Mr.V.S.Rao then approached the Hon'ble Junior civil judge,city civil courts against the GHMC by hiding the facts and obtained a stay order against the demolition. The standing counsel of the Ghmc got it vacated on 2nd July 2010 after submitting the relevant matterial papers.
On 5th July 2010 when the contempt case came for hearing before the Hon'ble High Court of Andhra Pradesh, Mrs & Mr.V.S.Rao denied that they have constructed after the court order but the Ghmc represented by the Asst. City Planner in their counter affadavit submitted that there was a violation of the orders and that they would immediatley get the illegal and unauthroised construction demolished. The Hon'ble judge posted the case for further hearing on 26th July 2010.
Again in the first week of July 2010, Mrs & Mr.V.S.Rao approached the IIIrd Addl. Chief judge, city civil courts seeking a status Quo against the orders of the VIth Junior civil judge who has vacated the stay in favour of the Ghmc. The IIIrd Addl. chief judge issued the staus Quo.
The Ghmc standing counsel are either not concerned or able to get the status quo vacated till date. Everytime it comes for hearing the case is getting posted for another date for reasons best known to the judge.
When we ask our lawyers whom we have engaged to argue in the High Court to move a motion they say that the High Court is not taking up any motions on a contempt case.
When we approached the Zonal Commissioner GHMC, he is advising us to get implicated int he case which is under the IIIrd Addl. chief Judge, city civil courts and also to put a further contempt case against Mrs & Mr.V.S.Rao for seeking relief in the lower court when the matter is pending in the High Court.
Is it no the duty of the standing counsel of the Ghmc to get the status quo vacated. We are perplexed by the attitude of the Ghmc who have given it in writting in the Hon'ble High Court that they would demolish the illegal construction and the subsequent actions of their standing counsel.
Please advice.
thank you
