Allowed

Syed Zainul Abedin v. The Minister for Municipal Administration

Telangana HC8 Nov 2021WP/11396/2019

Case brief

AI extract

What is this about?

The Telangana High Court allowed a writ petition challenging the inaction of the Jalpally Municipality regarding an ongoing construction of a mosque on disputed land. The Court held that the construction was illegal as it lacked approved layout and necessary permissions. Directions were issued to the concerned authorities to act on complaints regarding illegal constructions.

What did the court decide?

The writ petition was allowed. The Commissioner, Jalpally Municipality, is directed to act on the representations regarding the unauthorized construction of the mosque.

Syed Zainul Abedin Vs The Minister for Municipal… — Land Acquisition | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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I\4ONDAY ,THE EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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WRIT PETI TION NO: 1 1396 0F 2019

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Between:

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Syed Zai nul Abedin, S/o Late Syed Nizamuddin, Aged 43 years, Occ Business, Rl o 1 2-2-800 I 69, Dishad Nasar, Ivehidpii,i, ini nvo"i" ora.

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...PETITIONER

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AND

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1 I!:_!1,1j$:r for, Municipat Admin istration, Government of Tetangana, Secretariat, Hyderabad.

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2 I!:-9,"_-9r,:lary for Municipat Administration, Government of Telangana, Secretariat, Hyderabad.

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The Revenue Divisional Officer, West Zone, Kandukur.

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The Commissioner, Jalpally Municipality, Jalpally, Ranga Reddy District.

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5 lt/r. M.K. Moinrlddin S/oJrrlohammed lbrahim Aged about 31 years, Occ. Business, R/o Flat No. 203, Mishk plaza, Sayeeiabad, nyOeiaOiO.^{- --}

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Mr. Shareef Abubakar Yamani, S/o Shareef Mohd. yamani Aged about 38 years, Occ. Business, R/o H.No. 2-10311, Kothapet, Salala, Bilapur Village, Saroornagar [Vlandal, Ranga Reddy District.

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M/s City Heights Builders lndia Pvt. Ltd, having its office at Ftat No. 101, 101A,201 and202,1st and,2nd Floor, Shamahiri Estate, Lakdi Ka pul, Hyderabad, rep by its [,4anaging Director Mohammed Omer Ahmed

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...RESPONDENTS

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Petition under Article 226 of lhe Constitution of lndia 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 one in the nature of writ of mandamus declaring the in action of the part of respondent no 4 in not taking action based on representation dated 22.04.2019 and 30.05.2019 as per law as illegal

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IA NO:^{1 0F 2019}

Petition under^{Section 151 CPC praying that in the circumstances stated} in the affldavit^{filed in sup-port of tn" p"tition the High Court may be pleasedto} Oir""ttnurespondentno.4,5,6andTnottom€keanyconstructio,nsin,surveyno' 146 and^{147 of BalapLlrvirru'glanJ HAanOat,Ranga Reddy District admeasuring} '19 acres 32 Guntas.

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IA NO: 1 0F²⁰²⁰

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Between:

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1 Mr.tt/.K.Moinud.]in,S/oMohammedlbrahimAgedabout3lyears,occ. H;;i;;;.:'iii;tlii^{r'ro-. ios, Mishk Plaza,saveedabad' Hvderabad'}

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2 Mr. Shareef ;;;;.'o;; bJ.f Abubakar ""Js, nro^Yamani, ii.rrrb.^{S/o z-tb3l1, Shareef Mohd' Kothapet, Salala, YamaniAged Balapur about Village'38} biiootnagar^{Mandal,Ranga Reddy District'}

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J M/sCityHeights,BuilderslndiaPvt.Ltd,havingitsofficeatFlatNo'101' iiiia lor aio loz. tst anu,^{ino Floor,Shamshiri Estate,Lakdi Ka Pul'} Hvo.llat:rolr#^{rv it. MrnibinsDirector Mohammed omerAhmed}

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...PETITIONERYRESPONDENTS^{5 TO 7}

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AND

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'1 Sved Zainul Abedin, S/o Late^{Syed Nizamuddin'Aged. 43 years'. Occ'} Hi,;r;;. R,'o r zz-aoolos,^{bisrra,lNagar, Mehidpatnarn'Hvderabad'}

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....RESPONDENTA/VRIT^PETITIONER

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The Minister^{for MunicipalAdministration,Government of Telangana'} Secretariat, HYderabad.

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The Secretary^{for trlunicipalAdministration,Government of Telangana'} Secretariat. HYderabad.

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The Revenue^{Divisional Officer,West Zone, Kandukur'}

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5.TheCommissioner,JalpallyMunicipality,Jalpally,RangaReddyDistrict

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...RESPONDENTS

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Petition under Section^{151 CPC praying that in the circumstances stated} in the affidavit filed in support^{of the petition, the High court maybe pleased to} vacate the orders in/y'.P-No.11396^{0f 2019 dated 14-6-2019and dismissthe writ} petition No.1 1396 of i?019 on the file of this^{Hon'ble court with exemplary costs}

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lA NO: 1 OF 2021

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Petition under section 15'l cPC^{praying that in the circumstances stated} in the affidavit filed ir support^{of the petition, the High courtmaybe pleased to} delete and amend thr: writ^{Petition by deleting or amendingthe cause title in the}

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t-'

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ryl .q^{lA by removing the respondent no 1 The Minister for Municipat} Administration, Government of relangana, secretariat, Hyderabad from the array of parties

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lA NO: 2 AF 2021

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Petition under section 15'l cPc praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to receive the following documents i.e., 1) copy of certificate of Registration (No.303 of 20'19) issued by the Registrar of Societies, Hyderabad (South), 2) copy of Bye laws, 3) copy of layout broucher i.e., City Heights lman Enclave and 4) copy of payment receipts of LRS along with application and same may be treated as additional material papers in w.P.No.11396 of 2019 on the file of this Hon'ble Court and dismiss the writ pettion with exemplary costs,

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Counsel for the Petitioner:SRl. D MADHAVA RAO

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Counsel for the Respondent Nos.1 & 2: GP FOR MUNtCtPAL ADMINISTRATION & URBAN DEVELOPMENT

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Counsel for the Respondent No. 3: GP FOR REVENUE

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Counsel for the Respondent No. 4: SRl. N. PRAVEEN KUMAR, SC FOR MC

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Counsel for the Respondent Nos. 5 & 6: SRl. G. SUNDARESAN

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Counsel for the Respondent No. 7: SRl. PARSA ANANTH NAGESWAR RAO

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-The Court made the following:

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HC)'BLE SITI JUSTICE K. LAKSHMAN

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WRIl' PETITION No.l I 396 ()F 20t9

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ORDER

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The present writ petition is filed to declare the inaction of respondent No.4 in not acting on the representations dated, 22.04.2019 and 30.05.2019 as illegal.

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Heard Mr. D. Madhava Rao, learned counsel for the petitioner, learned Government Pleader for Municipal Administration & Urban Development appearing on behalf of respondent No.2, learned Covernment Pleader tbr Revenue appearing on behall of respondent No.3, lr4,r'. N. Praveen Kumar, learned Standing appearing on behalf of respondent No.4, Mr. G. Sundaresan, leamed counsel appearing on behalf of respondent Nos.5 and 6 and Mr. parsa Ananth Nageswar Rao, leamed counsel for respondent No.7.

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3. Conten tions of the petitioner:

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i) The petitioner is the legal heir and grandson of one late Umme Salma, purchaser of the property admeasuring Acs.19-32 Gts. in Survey No.146 & 147 of Balapur Village and Mandal, Ranga Reddy District, (hereinafter referred to as^,subject property').

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ii) The petitioner,s grandmother was shown as a pattedar in the pahanies and re'enue records but her name was dereted later and names of third parties rvere illegally inserted in respect of the subject property. Thereliorq ir suir bearing O.S. No.l157 of 20lg was filed seeking

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KL,J IIt.P.No.l1396 of 2019

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declaration of title, cancellation of the documents and pemetual injunction with respect ofthe suit schedule property.

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iii) During the pendency of O.S. No.l157 of 2018, the unofficial respondents herein without any permission have started excavating and erected columns to construct an illegal structure i.e., a Mosque on the disputed site.

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iv) 1-he disputed property is the subject matter of the abovernentioned suit and it is agricultural rand. No layout has bee, granted. The construction is being canied out without any permission.

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v) The respondents have failed to place on record any proceedings which show that the land has been converted from agricuitural to non_ agricultural land. Further, for construction of a religious structure permission has to be obtained from the District colrector and the concemed Municipal Authorities. No such permissions were obtained in the present case.

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vi) No structure can be erected without any permission or approved layout, much less a religious structure like a Mosque. If the Mosque is constructed on the disputed property it wilr become a public structure and will cause law and order problerns.

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vii) Respondent Nos.5 to 7 have placed on record that the land in question is part ofan unapproved layout and the applications were filed

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KL,J tr.P.No. t 1396 of 2019

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before the HMDA for layout regularization which are still pending. Therefore, the construction was being done without any layout.

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viii) Representations were made to the official respondents on 22.04.2019 and 30.05.2019 but no action is being taken to stop the illegal constructlon.

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Contentions of resr)ondent No.7

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i) Respondent No.7 claim that it had purchased the subjecr property vide registered sale deed bearing document No.25914 of 2016 dated 04.10.2016 executed by Amatul Saleha and seven orhers represented by their GPA holder M.K. Moinuddin (respondent No.5 herein). Since then, possession is being enjoyed by it without any hindrance from anybody.

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ii) The petitioner has filed a frivolous suit in O.S. No.1l57 of 2018 after a lapse of thirty years as late Umme Salma had already died in r988.

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iii) 1'he subject land was sold as small plots when respondent No.7 purchased it, theretbre the character of land had arready converted flonr agricultural Iand ro non-agricultural land.

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iv) Mere filing of O.S. No.l157 of 20lg will not create any rights. The petitioner has no legar right over the subject land and cannot craim

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-)-

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KL,,J tl/.P.No.l 1396 of 2019

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stoppage of construction activity over land owned & possessed by respondent No.7.

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v) In O.S. No.1157 of 2018, the petitioner herein had hled an I.A. No.1787 of 2018 for temporary injunction restraining respondent No.7 from alienating the subject property. The said I.A. was dismissed on 12.06.2019 alter a keen contest by both the parties. Aggrieved by the said order, the petitioner herein preferred C.M.A. No.634 of 2019 before this Court. lnitially, a stay was granted on 26.06.20 19, howcver, after hearing both the parties the said C.M.A.No.634 of 20 l9 was dismissed on 21.01.2020 and the interim order was vacated. The said C.M.A. No.634 of 2019 was challenged before the Hon'ble Suprerne Courl tl.rrough an SLP (C) No.2032 of 2021 and the same was dismissed on 13.08.2021.

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vi) Respondent No.7 is carrying on construction on its own property and it has rights to make such construction and such rights are to be protected under Articles - 14, 19 and 300-4. The matter is pending before the official respondents, the relief sought by the petitioner cannot be adjudicated under Article - 226.

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vii) The rights ol respondent No.7 are crystal clear and the application for layout regularization of the plots is pending belore the HMDA authorities since 2017. This Coun in W.P. No.35932 of 2018 ordered the HMDA to consider their representation dated 22.05.2017 for

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w r *,. t t:oo o$iirt

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layout regurarization within a period of eight weeks, but the issue is sti, pending.

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viii) The petitioner herein obtained an interim order frorn this Court in I.A. No. I of 2019 on 14.06.2019in the presenr writ petition by suppressing material facts and approached this Court with unclean hands. Pursuant to the interim order, all the construction activity was stopped and a'the materiar is rying on the road which is causing irreparabre ross. The Court may dismiss the writ petition and vacate the interim order.

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Analyst li an dfi ndi n of rh eCou rt

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i) The above said rivar contentions of the parties would revear that there is a serious <lispute regarding the title ofthe subject properfy and a civir suit vide o's' No'r 157 0f 20rg seeking decraration, canceration of documents and injunction is pending with regard to the same. However, the question before this Court is whether respondent No.7 is carrying on any construction activity unauthorisedly - -'r without " rtrru,L re qulslte sanctions and permissions.

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ii) Respondent No.7 in its counter has stated that the layout permissions were sought trom HMDA but the same are pending since 20)7. However, the receipts of LRS applications filed by respondent Nos'S to 7 revears that the applications for layout regurarizations were made after the filing of the present writ petition. Vide letter dated 24.08.2021, respondent \ No.7 requested the District Collector, Ranga

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kL / tt l ',t I I 3{.t6 ,i lt lt)

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Reddy Districr ro accord pennission t0 c0nstruct mosque i.e,, Masjid F HJashmi in Sy.Nos. 146 and 147 of Balapur Villagc, Ranga Reddy District. The same is pending. Thus, respondent No.7 had submitted the said application during pendency of the present writ petition. The said fact clearly shows that the impugned construction^{activity wasbeing} carried out without any layout^{approvalfrom HMDA and without any} permission from the District Collector.

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iii) It is trite law that any^{construction done withoutobtainingthe} required permissions and^{sanctionsis itlegal. Such constructionsare} liable to be demolished.^{RespondentNo.7 cannot proceedwith the} construction on the^{groundthat it has a valid title. Even if a personhas a} valid title, all the necessary^{permissions/sanctionsfor constructionhave} to be obtained.

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iv) The^{presentcase is yet another exampleof inaction of the} concerned authority^{to take action on complaints received.It is relevant} to note that it is^{a statutory duty of the concemedmunicipalityto act on} complaints/representations^{regardingillegal constructions. section - 17 4} (5) of the TelanganaMunicipalities^{Act,2019 imposesa duty to act on} illegal constructions.^{The relevant portionis extracted below:}

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5 Citizens shall^{be encouraed to brin} to the notice of munici nalitv^{anddistrictcollector} ca ses^rr herc unauthorized co^{nstructionor construction in violation} ofor in excess of Der^{missionsrin amannerprcscribed,} The identity of^{such infonners shall be kept confidential'}

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KL,J ll/.P.Nct.l 1396 of 20 t9

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---..-

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All such cases shall be exa m ined within a week from such in formation a nd ano roDri ate actio n initia ted. lhe inlbrmant shall be incentivized , in all such cases where the infomration furnished by him is found to be comecr.,,

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v) It is also apt to refer to the provisions of Secrion _ 7 (6) and l0 (6) of the Telangana State Building permission Approval and Self Certiflcation System (TS_bpASS) Act,2020,which are as under:

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"7 (6) Citizens shall be encouraged to bring to the notice of Municipality and District Collector cases where unauthorized construction or construction in violation of or in excess of permissions, in the manner prescribed. The identity of such informers shall be kept confidential. All such cases shall be exam ined within a week from such in for m ation and ADI) ro ria te action initi ated. The nformanl shall be incentivized in all such cases where the inlbmation lurnished by him is found to be correct.,,

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"lo ro ) ,V henever:l contD Iaint 0r caseisb rough tby an\ Ci tizen re a rdi ng thc unil uthorized constru ction or construc!ions in dev iation to the silnc tio n ed pl an, it shall be exa MI ned w ithin a lyeek from its recein t and nece ssa r\ a ctio n initi ated."

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vi) I'he municipalities and officials are sleeping over such complaints and are breaching their statutory duties. It is needless to say that the inaction of the concemed authorities is adding to the huge pendency before this Court.

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ru.4 l{. P.No. 396 of 20t9 \

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vii) The Hon'ble Supreme court in shanti sports crub v. union of Indiar expressed its dispreasure over iregar constructions and the inaction of the authorities to check the same. The relevant paragraph is extracted below:

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In the last four decades, almost all cities, big or small , have seen unplanned growth. In the 2lst century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and evervo ne has been paying heavy price for the sarne. Economically affluent neople and th ose havi n su ort of the oliticala nd exec utM ADD aratu sof the Stat e have constru cted b uildi n

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The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building IS used for a purpose other than the one specified in the relevant statute or the master plan, etc.. such constructions put unbearable burden on the public facilities/amenities i ike water, electricity, sewerage, etc. apart lrom creating chaos on tlre '(200a) 15 scc 705

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KL,J lt/ P .\u.I t 396 of 20t9

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roads. lhe pollution caused due to tralfic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the societv, who cannot allbrd the luxurv ol' air-conditioned cars, are the worst victims of pollution. They sulfer from skin diseases of dill-erenr t1,pes. asthrna, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Govemment has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Co rt has from time to time ta ken co gnlzan ce of build ings co nstructed jn violation of munic ipa I and other la rvs and emD hasised that no conlDro mise shoul dbe made rvith thc town Jrllrnlri n(, sche me:rnd no relie f should be sive n to the violator of the tow'n lan nin schcntc. etc. on the srou nd tha t hc has sp cnt substantial am ount on constru ction of the bui ldings. etc,K. Rirmadas Shenoy v. Tou,n Municipal Council. Udipi [(1e71) 2 SCC s06] . C.N Khajuria (Dr.) v. DDA t(1995) 5 SCC 762J t!1.1. Buil<tsrs (p) Lrd. v. Radhe,v Shvanr Sahu [(¹⁹⁹⁶⁾ 6 SCC 464] , Friends Colony Development Comnrirree v. Stare of Orissa [(2004) 8 SCC 733], M.C. Mehta v. Union oflndia [(2006) 3 SCC 399] and S.N. Chandrashekar v. Stare of Kamataka t(2006) 3 SCC 2081 .

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viii) Therefore, this court feels that the fo,owing directions are to be issued to all the Municipal corporations/Iv{uniciparities in the State of Telangana:

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a) The concerned authority should act on complaints regarding illegal constructions within seven (7) days of receiving such complaints;

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KL,J ,t/.P.No.l 1396 of 2019

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b)On receiving complaints/reprrjsentations regarding illegal constructions, it is the duty of the concerned Municipal Corporation/Municipality to verily whether any permission was obtained lor the irnpugned construction;

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c) If permission was obtaincd the sarne is to be communicated to the complainant;

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d) If no permission was obtained, action is to be i,itiated under the Telangana Municipalities Act, 2Ol9/ GHMC Act, 1955 / TS_ bPASS Act,2020 and the same needs to be communicated to the complainanq and

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e) If construction is being canied out by deviating the sanction plan, the concemed authority shall take action by following due procedure laid down under law.

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Conclusion

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i) It is clear from the facts ol the case that respondent No.7 proceeded with the construction without obtaining an approved layout and construction permissions. Therefo'e, the present writ petition is allowed and respondent No.4 is directed to take necessary action by considering the representations dated 2Z.O4.2}lg and 30.05.2019 submitted by the petitioner. However, liberty is granted to the parties to decide the title dispute by approaching competent civil court including in O.S. No.1 157 of 2018.

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ii) The present writ petition is accordingly disposed ol

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KL,J l.l/. P. N o. I I 3 96 ol 2 0 I 9

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iii) In the circlurstances of the case, there shall be no order as to

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costs.

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As a sequel, the miscellaneous petitions, if any, pending in the writ

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petition shall stand closed.

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SD/.T.TIRUMALA^DEVI ASSISTANT^REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

1 TheMinisterforMunicipalAdministration,GovernmentofTelangana' Secretariat,^HYderabad.

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2 il; a;;t;i"ty'^{for MunicipalAdministration'Government of Telangana'} Secretariat,^HYderabad.

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3 The Prl.SecretarY^{for MuniciPal Administration, Government of Telangana,} Secretariat,^HYderabad

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+. if'," neuunue'Divisional^{Officer,West Zone' Kandukur'} S. fn. Corrissioner,^{Jalpally Municipality' Jalpally'RangaReddy District'} o rn. c.,.issioner'^{GHMc, Govt of Telangana Secretariat Hyderabad} ; o.; cc to sri^{D Madhava Rao,Advocate topucl one cc to Sri. , Advocate} (oPUC)

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a bne Ci to^{Sri. N. PraveenKumar, SC for MC (OPUC)}

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S On" CC^{to Sri.G. Sundaresan,Advocate [OPUCI}

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iO O." CC^{to Sri. Parsa Ananth NageswarRao' Advocate (OPUC)} 1 1 . Two ccs^{to the cp tor r,rrunic,paiAdministration& UrbanDevelopment , High} Court for the^{State of Telangana'(OUT)}

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