Appointment of Advocate Commissioner under Order XXVI Rule 9 CPC in a land-grabbing case, to note physical features and fix boundaries with the assistance of Mandal Surveyor and Revenue authorities. Held that where rival parties claim possession in different NTS numbers, local investigation is proper and necessary to elucidate the dispute. Appointment of Commissioner is a procedural aid, not collection of evidence. No prejudice caused as parties are entitled to file objections and lead evidence. Interference under Article 227 of the Constitution of India declined, as the Trial Court exercised jurisdiction within settled legal principles. Civil Revision Petition dismissed.

AP HIGH COURT AMARAVATHI 

Appointment of Advocate Commissioner under Order XXVI Rule 9 CPC in a land-grabbing case, to note physical features and fix boundaries with the assistance of Mandal Surveyor and Revenue authorities. Held that where rival parties claim possession in different NTS numbers, local investigation is proper and necessary to elucidate the dispute. Appointment of Commissioner is a procedural aid, not collection of evidence. No prejudice caused as parties are entitled to file objections and lead evidence. Interference under Article 227 of the Constitution of India declined, as the Trial Court exercised jurisdiction within settled legal principles. Civil Revision Petition dismissed.

Code of Civil Procedure, 1908 — Order XXVI Rules 9 & 10

Appointment of Advocate Commissioner — Local investigation — Scope.
Local investigation may be ordered where it is requisite or proper for elucidating matters in dispute, particularly in cases involving boundary and identity of land. Commissioner’s report is only a piece of evidence and is open to objections and rebuttal.
(Paras 16–19, 21–22)

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Land Grabbing (Prohibition) Act, 1982 — Proceedings

Dispute regarding encroachment — Rival claims with reference to different NTS numbers.
Where petitioners allege encroachment in NTS No.6 and respondents assert possession in NTS Nos.3, 4 & 5, local inspection by Advocate Commissioner with assistance of Mandal Surveyor is necessary to elucidate the dispute.
(Paras 20–22)

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Advocate Commissioner — Not for collection of evidence

Appointment of Commissioner to note physical features, measurements and boundaries does not amount to collection of evidence, but is a procedural mechanism to assist the Court in arriving at the truth.
(Paras 19–22)

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Article 227 of the Constitution of India — Scope of interference

Supervisory jurisdiction — Not appellate.
High Court will not interfere under Article 227 where the Trial Court has exercised discretion within jurisdiction, unless there is patent illegality, perversity, lack of jurisdiction, or grave miscarriage of justice.
(Paras 23–27)

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Discretion of Trial Court — Appointment of Commissioner

Once the Trial Court forms an opinion that local investigation is necessary for resolving boundary disputes, such exercise of discretion aimed at advancing substantial justice cannot be interfered with under Article 227.
(Paras 21, 23, 26–27)

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ANALYSIS OF FACTS AND LAW

I. Factual Background

• The petitioner filed LGOP No.119 of 2012 alleging land grabbing by respondent Nos.1 to 10 under the Land Grabbing (Prohibition) Act, 1982 (Para 3).

• Tahsildar’s report dated 22.03.2012 indicated encroachment and construction of dwelling structures (Para 4).

• Respondents denied land grabbing and asserted independent title under registered sale deeds, claiming their properties fall in NTS Nos.3, 4 & 5, not in NTS No.6 (Paras 5, 8).

• After petitioner’s evidence concluded, respondents’ evidence was closed as nil due to non-appearance, following which respondents filed:

  • I.A.No.1561 of 2024 to reopen evidence, and

  • I.A.No.1597 of 2024 seeking appointment of Advocate Commissioner (Paras 6–8).

• Trial Court allowed both applications. The petitioner challenged only the appointment of Advocate Commissioner (Para 12).

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II. Legal Issue

Whether the Trial Court acted illegally or without jurisdiction in appointing an Advocate Commissioner under Order XXVI Rule 9 CPC, warranting interference under Article 227 of the Constitution of India.
(Para 15)

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III. Legal Principles Applied

1. Order XXVI Rule 9 CPC empowers the Court to order local investigation where it is necessary to elucidate matters in dispute (Paras 16–19).

2. The primary duty of the Court is to arrive at the truth, and the Commissioner’s report is only evidentiary in nature (Para 19).

3. Appointment of Commissioner is justified in boundary and identity disputes, particularly when rival parties claim different survey/NTS numbers (Paras 20–22).

4. Under Article 227, High Court’s power is supervisory and cannot be exercised as an appellate power; interference is limited to jurisdictional errors or grave injustice (Paras 23–27).

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IV. Application of Law to Facts

• The dispute centered on whether respondents were in NTS No.6 (as alleged by petitioner) or in NTS Nos.3, 4 & 5 (as claimed by respondents) (Paras 21–22).

• Determination of boundaries and physical features was essential to resolve the controversy.

• The Trial Court exercised discretion to appoint Advocate Commissioner with assistance of Mandal Surveyor and Revenue authorities to ascertain boundaries with reference to Ex.A3 (Para 11).

• The petitioner retained the right to object to the report and lead rebuttal evidence, ensuring no prejudice (Para 22).

• The order did not suffer from perversity, illegality, or lack of jurisdiction (Paras 26–27).

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V. Conclusion

The Trial Court acted within its jurisdiction and in accordance with settled principles governing Order XXVI Rule 9 CPC. The appointment of Advocate Commissioner was a legitimate procedural aid. No ground existed for interference under Article 227.

RATIO DECIDENDI

Where rival parties in a land-grabbing proceeding claim possession with reference to different NTS numbers, the Trial Court is justified in appointing an Advocate Commissioner under Order XXVI Rule 9 CPC to note physical features and fix boundaries with the assistance of revenue and survey authorities. Such appointment is a procedural aid to elucidate the dispute, does not amount to collection of evidence, and does not cause prejudice as parties retain the right to object and lead rebuttal evidence. Exercise of such discretion, being within jurisdiction and in accordance with settled principles, does not warrant interference under Article 227 of the Constitution of India.

Execution Petition returned at the stage of registration on the ground that the decree holder sought damages in addition to arrears of rent. Held that the executing court has no jurisdiction to refuse registration of an execution petition by questioning entitlement under the decree. Executing court cannot go behind the decree, except where the decree is without inherent jurisdiction. Objections relating to executability can be examined only after registration of the Execution Petition. Return of E.P. held unsustainable. Civil Revision Petition allowed.

AP HIGH COURT AMARAVATHI 

Execution Petition returned at the stage of registration on the ground that the decree holder sought damages in addition to arrears of rent. Held that the executing court has no jurisdiction to refuse registration of an execution petition by questioning entitlement under the decree. Executing court cannot go behind the decree, except where the decree is without inherent jurisdiction. Objections relating to executability can be examined only after registration of the Execution Petition. Return of E.P. held unsustainable. Civil Revision Petition allowed.

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HEAD NOTE

Civil Procedure Code, 1908 — Section 47 — Execution of decree

Executing court cannot go behind the decree or question its legality or correctness. Only exception is where the decree is without inherent jurisdiction.
(Paras 8–11)

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Execution Petition — Registration stage — Jurisdiction of executing court

At the stage of registration of an Execution Petition, the executing court has no jurisdiction to raise objections regarding entitlement of the decree holder under the decree. Such objections cannot be a ground for return of the E.P.
(Paras 7, 11)

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Execution of decree — Arrears of rent and damages for use and occupation

Where the decree itself awards arrears of rent for one period and damages for use and occupation for a subsequent period, the executing court cannot question such entitlement at the stage of registration of the execution petition.
(Paras 5–7)

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Article 227 of the Constitution of India — Supervisory jurisdiction

High Court can interfere under Article 227 where the executing court commits a jurisdictional error by refusing to register an execution petition contrary to settled law.
(Paras 11, 13)

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Execution proceedings — Stage of consideration of objections

Questions relating to executability of the decree or jurisdiction of the court passing the decree can be considered only after registration of the execution petition, and not at the threshold.

In motor accident claims under Section 166 of the Motor Vehicles Act, negligence can be inferred on the basis of FIR, inquest report and other public documents applying the standard of preponderance of probabilities, even in the absence of eye-witnesses or charge-sheet, and just compensation must be determined by applying the multiplier method with future prospects and consortium in accordance with settled Supreme Court precedents.

 AP HIGH COURT AMARAVATHI 

Motor Vehicles Act, 1988 — Ss. 166, 168, 169, 173 — Motor accident claim — Standard of proof

In a claim under Section 166 of the Motor Vehicles Act, the claimants are required to establish negligence only on the touchstone of preponderance of probabilities and not on proof beyond reasonable doubt. The strict rules of evidence applicable to criminal trials do not apply to proceedings before the Motor Accidents Claims Tribunal.
(Paras 15–20)

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Motor accident — Negligence — Proof — FIR, inquest report and MVI report

Non-examination of an eye-witness or non-filing of charge-sheet is not fatal to a motor accident claim. Certified copies of public documents such as FIR, inquest report and Motor Vehicle Inspector’s report are admissible and can form the basis to infer negligence, particularly when the driver and owner of the offending vehicle remain ex parte.
(Paras 13–17, 21–22)

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Motor accident — Tribunal’s approach — Summary enquiry

The Motor Accidents Claims Tribunal is required to adopt a holistic and pragmatic approach consistent with the summary nature of enquiry contemplated under Sections 168 and 169 of the Motor Vehicles Act and Rule 476 of the A.P. Motor Vehicles Rules. Technical flaws or absence of best evidence cannot defeat a legitimate claim.
(Paras 18–20)

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Motor accident — Insurer’s defence — Failure to examine driver/owner

Where the owner and driver of the offending vehicle remain ex parte and the insurer does not take steps to examine them, an adverse inference can be drawn, particularly when the insurer disputes only the quantum of compensation and not the occurrence of the accident.
(Paras 21–22, 32)

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Compensation — Determination — Multiplier method

Determination of compensation must follow the multiplier method as laid down in Sarla Verma, taking into account the age of the deceased, income, number of dependants, appropriate multiplier, deduction towards personal expenses and addition under conventional heads.
(Paras 23–24, 29–30)

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Compensation — Future prospects

Future prospects are to be added in accordance with the principles laid down in Pranay Sethi, even in cases of self-employed or fixed salary persons, depending upon the age of the deceased.
(Paras 24, 29)

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Compensation — Consortium

Compensation towards loss of consortium is payable not only to the spouse but also to children and parents under the heads of spousal, parental and filial consortium, as recognised in Magma General Insurance Co. Ltd. v. Nanu Ram.
(Paras 25, 30)

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Compensation — Just compensation — Power of Tribunal

The Tribunal and the Appellate Court are empowered to award just compensation, even exceeding the amount claimed, and should not be constrained by technicalities when determining compensation for loss of life.
(Paras 26, 30)

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Liability — Owner and insurer

Where negligence of the offending vehicle is established and the vehicle is admittedly insured, the owner and insurer are jointly and severally liable to pay the compensation.
(Paras 32–33)

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RATIO DECIDENDI

In motor accident claims under Section 166 of the Motor Vehicles Act, negligence can be inferred on the basis of FIR, inquest report and other public documents applying the standard of preponderance of probabilities, even in the absence of eye-witnesses or charge-sheet, and just compensation must be determined by applying the multiplier method with future prospects and consortium in accordance with settled Supreme Court precedents.

Administrative Law — Jurisdiction — Compliance with prior judicial directions When a Court issues a specific direction to a particular statutory authority to consider and decide a representation, only that authority is competent to pass the order. Any order passed by a different authority, even within the same department, is without jurisdiction and liable to be set aside. (Paras 24–26) Pollution Control — Water (Prevention and Control of Pollution) Act, 1974 — Consent to Operate — Decision on representation An order rejecting a representation concerning Consent to Operate, passed by an authority not designated by a prior judicial order, is vitiated for lack of jurisdiction, irrespective of the merits of the environmental compliance. (Paras 26–27)

AP HIGH COURT 

Constitution of India — Art. 226 — Maintainability of writ petition — Alternative statutory remedy

Availability of an alternative statutory remedy does not bar exercise of writ jurisdiction where the impugned order is wholly without jurisdiction. In such cases, the High Court is justified in entertaining the writ petition notwithstanding the existence of an appellate remedy.
(Paras 27–29)

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Administrative Law — Jurisdiction — Compliance with prior judicial directions

When a Court issues a specific direction to a particular statutory authority to consider and decide a representation, only that authority is competent to pass the order. Any order passed by a different authority, even within the same department, is without jurisdiction and liable to be set aside.
(Paras 24–26)

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Pollution Control — Water (Prevention and Control of Pollution) Act, 1974 — Consent to Operate — Decision on representation

An order rejecting a representation concerning Consent to Operate, passed by an authority not designated by a prior judicial order, is vitiated for lack of jurisdiction, irrespective of the merits of the environmental compliance.
(Paras 26–27)

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Judicial Review — Scope — Decision-making authority

Where the decision-making process itself is vitiated on account of lack of jurisdiction, the Court need not enter into the merits of the controversy and may confine itself to correcting the jurisdictional error.
(Para 27)

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Administrative Law — Speaking order — Duty of statutory authority

When reconsideration is directed, the competent authority must pass a reasoned and speaking order, after affording due opportunity to all affected parties.
(Para 30)

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Principles governing writ jurisdiction — Exceptions to rule of alternate remedy

The recognised exceptions to the rule of alternate remedy include cases where:
(i) fundamental rights are violated;
(ii) principles of natural justice are breached;
(iii) the order is wholly without jurisdiction; or
(iv) vires of a statute is under challenge.
(Paras 28–29)
Relied on: Radha Krishan Industries; Whirlpool Corporation

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ANALYSIS OF FACTS AND LAW

The petitioner challenged the order dated 22-01-2025 passed by the Andhra Pradesh Pollution Control Board, Regional Office, Eluru, rejecting his representation seeking cancellation of Consent to Operate (CTO) granted to the 14th respondent industrial unit.

Earlier, in W.P. No. 14036 of 2024, the High Court had specifically directed the APPCB Zonal Office, Visakhapatnam, represented by its Joint Chief Environmental Engineer, to consider and decide the petitioner’s representation dated 11-10-2023.

Contrary to that judicial direction, the representation was decided by the Regional Office, Eluru, through its Environmental Engineer. The Division Bench held that:

• once the Court had identified the competent authority, no other authority could assume that role;

• the order passed by the Regional Office was therefore ex facie without jurisdiction;

• in such a situation, the existence of an appellate remedy under the Water Act did not bar the writ petition.

The Court expressly declined to examine the substantive disputes relating to the lease deed, alleged forgery, registration requirement, or compliance with consent conditions, holding that those issues must be examined by the proper authority as per law.

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RATIO DECIDENDI

An administrative order passed by an authority other than the one specifically directed by a Court to decide a matter is without jurisdiction, and such jurisdictional defect justifies interference under Article 226 of the Constitution notwithstanding the availability of an alternative statutory remedy.

A neighbouring resident has locus standi to challenge constructions made in violation of sanctioned building plans in a residential area; however, once zoning regulations permit the construction and no legal right is infringed, procedural irregularities alone do not vitiate building permission or justify interference, and municipal action affecting property rights must comply with statutory notice requirements and principles of natural justice.

AP HIGH COURT AMARAVATHI

Constitution of India — Art. 226 — Writ jurisdiction — Common order in connected writ petitions

Where multiple writ petitions arise out of inter-related disputes concerning the same property, same parties and overlapping issues, the High Court is justified in hearing them together and disposing them by a common order.
(Para 1)

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Municipal Law — Illegal constructions — Locus standi of neighbouring residents

Residents of the locality have locus standi to question illegal constructions which disrupt the character of a residential area and violate sanctioned building plans, as such constructions invade their personal and legal interests.
(Paras 18–19)
Relied on: Sri K. Ramdas Shenoy v. Town Municipal Council, Udipi

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Municipal Law — Building permission — Challenge by third party

A building permit can be questioned by a third party only on limited grounds, namely:
(i) claim of title or legal right over the property, or
(ii) violation of zoning regulations.
In the absence of infringement of any legal right, a neighbour lacks locus standi to challenge the grant of building permission.
(Paras 21–22)

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Town Planning — Residential permission — Construction contrary to sanctioned plan

Where a building is sanctioned for residential use, but the material on record including photographs, inspection reports and construction features indicate that a commercial structure was constructed from inception, the action amounts to construction contrary to the sanctioned plan.
(Paras 29–30)

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Municipal Law — Subsequent zoning change — Effect

Subsequent change of land use from residential zone to commercial zone under a revised master plan permits issuance of fresh building permission for commercial use, provided the construction conforms to the applicable rules and zoning regulations.
(Paras 28, 32)

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Municipal Law — Building permit — Procedural irregularity

A distinction must be drawn between procedural irregularity and substantive illegality. Mere procedural deviations in granting permission do not vitiate the sanction in the absence of infringement of a legal right.
(Para 22)

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Municipal Law — Occupancy Certificate

When a building conforms to zoning regulations and building rules prevailing at the relevant time, and no deviations are pointed out, there is no justification to withhold issuance of Occupancy Certificate.
(Paras 32–33)

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Municipal Corporations Act — Demolition / closure orders — Principles of natural justice

Orders directing closure of premises or removal of alleged unauthorised constructions, passed without issuance of statutory show-cause notice, violate procedural safeguards and are liable to be set aside, with liberty to the authority to proceed afresh in accordance with law.
(Para 35)

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Equitable jurisdiction — Costs

Where parties make misleading pleadings and suppress material facts, yet the construction ultimately conforms to zoning regulations, the Court may take a balanced approach by imposing exemplary costs instead of directing demolition.
(Paras 30–31)

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ANALYSIS OF FACTS AND LAW

The batch of writ petitions arose from long-standing neighbourhood disputes relating to construction activities in Bhimavaram Municipality, involving allegations of:

• construction of a commercial building under the guise of a residential plan,

• grant of fresh commercial permission after change of zoning,

• refusal to issue Occupancy Certificate, and

• action taken by the Municipality against the complainant himself for unauthorised commercial activity.

The Court first addressed locus standi, holding that neighbours have a right to challenge constructions that violate sanctioned plans in a residential area (W.P. No.15425 of 2023), but do not have locus to challenge a building permit granted in accordance with zoning regulations merely on procedural grounds (W.P. No.17367 of 2024).

On facts, relying on photographs, inspection reports and pleadings, the Court concluded that the structure was commercial in nature from inception, contrary to the original residential permission. However, the Court also noted:

• subsequent change of zoning to commercial under the master plan dated 17-01-2024,

• grant of commercial building permission by EUDA on 28-06-2024, and

• absence of any violation of current zoning regulations.

Balancing equities, the Court refrained from ordering demolition, imposed costs of ₹50,000 on the builders for misleading pleadings, and permitted consideration of Occupancy Certificate.

With respect to municipal action against the complainant’s own property (bar and restaurant), the Court found procedural violations, set aside the closure order, and directed fresh proceedings after issuance of statutory notice.

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RATIO DECIDENDI

A neighbouring resident has locus standi to challenge constructions made in violation of sanctioned building plans in a residential area; however, once zoning regulations permit the construction and no legal right is infringed, procedural irregularities alone do not vitiate building permission or justify interference, and municipal action affecting property rights must comply with statutory notice requirements and principles of natural justice.