Partly allowed

Y.Vivekananda v. State of Telangana and 5 others

Telangana HC7 Jun 2021WP/1412/2020

Case brief

AI extract

What is this about?

The High Court dismissed W.P. No. 1412 of 2020 due to a disputed title and survey overlapping, directing the parties to the Civil Court. Conversely, it allowed W.P. No. 2913 of 2020, holding that officials cannot interfere with lawful construction pending a civil court decree on title disputes.

What did the court decide?

Allowed W.P. No. 2913 of 2020 directing respondents not to interfere with construction unless contrary to sanctioned plan; dismissed W.P. No. 1412 of 2020 directing parties to approach Civil Court for

Y.Vivekananda Vs State of Telangana and 5 others — Property and Title | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAO

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(Special Original Jurisdiction)

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MONDAY, THE SEVENTH DAY OF JUNE TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY

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WRIT PETITION NO: 1412 AND 2913 OF 2020

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wP NO.1412 0F 2020:

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Between:

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Y.Vivekananda, S/o. late Y.V.Raghava Rao, aged about 44 years, Rio. D, No. 1'1^-1 2-383, Road No.6, Ramakrishnapuram, Hyderabad ...PETITIONER

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AND

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1 State of Telangana, rep.by its Secretary,^{Municipal Administration and Urban} Development Department, Secretariat, Hyderabad

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2 Greatei tr/unicipdl Corporation, Hyderabad,^{rep. by its Commissioner, Tank} Bund, Hyderabad

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3 Deputy Commissioner, L.B.Nagar It4unicipality, Rangareddy^{District, Hyderabad} 4 Dv. C<immissioner, Circle 3, Hayath^{Nagar, GHMC, Hyderabad} 5 D6puty Collector and Tahsrldar, Uppal Mandal,^{Rangareddy District} 6 Smt,G.Lalithamma, W/o.G.Chenna Reddy, aged^{about 63 years, R/o.D,No1'1-} 13-55412, Road No.15, Alakapuri, L.B.Nagar, Rangareddy^{,'t,r,.t:..HI383,33€*r,}

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Petition under Article 226 of the Constitution of^{lndia praying that in the} circumstances stated in the affidavit^{filed therewith,the High court may be pleased} to issue a writ of lvlandamus or any^{other appropriate writ, order or direclion} declaring the action of the Respondent^{Nos.2to 5 in not taking any action on his} representation dt. o1/06/2019^pursuant to^{the orders of this court in w.P.No.9208 of} 2019, dt. 2610412019 as illegal, arbitrary etc.,.

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lA NO: 1 OF 2020

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Petition under Section 151 CPC^{prayingthat in the circumstancesstated in} the affidavit filed in support of the^{petition,the High Court may be pleased to direct} the Respondent Nos. 2 to 5 to immediately^{stop the constructionactivity by the 6th} Respondent on the northern side^{road of the houseof the Petitionerin Plot No.36} Anandnagar colony, Bandlaguda, Uppal^{Mandal, Rangareddy District virtually} blocking entrance and major^{part of his house on the northern side pending disposal} of the above W.P.

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Counsel for the Petitioner: SRI^{V. V. L. N. SARMA}

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Counsel for Respondent No' 1:^{GP FOR MUNICIPAL ADMINISTRATION&}

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URBAN DEVELOPMENT

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Counsel for Respondent^{Nos. 2 to 4: SRI SAMPATHPRABHAKARREDDY'} SC FOR GHMC

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Counsel for Respondent^{No. 5: GP FOR REVENUE}

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counsel for Respondent^{No. 6: SRI B. CHANDRASEN REDDY, SENIOR COUNSEL} FOR M/s. CHANDRASEN^LAWOFFICE

WP NO: 2913 OF 2020

Between:

Qmt^{G. Lalithamma,Wo. Sri G. Chenna Reddy,a} ged 64 years Occ. Business, Ryo. House No. 11-13-554/2, Road No.15, Alkapuri, LB Nagar, Hyderabad. ...PETITIONER

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AND

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The State of Telangana, Rep by its Principal Secretary, Municipal and CAD Department, Secretariat, Hvderabad.

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Gre^ater Hyderabad IVunicifal Corporation, Lower Tank Bund, Hyderabad Rep by its Commissioner The Deputy Commissioner, Greater Hyderabad Municipal Corporation Circle No. 3, LB Nagar l\ilu nicipa lity, Hyderabad

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4 I|" 9V^{Commrssioner, Circle-3, Hayathnagar,GHtMC,Hyderabad.} 5 The.Dy. Collector and Tahsitdar, Uppal Maidl, Ranga Reddy District 6 Sri. Y. Vive-kananda, S/o. Late Y.V. Raghava Rao, Jged abdul 44 years, Rl/o. D.No.11-12-383, Road No.6, Ramakris-hnapuram, Hiderabad.

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. *.r;O;;.r^ Petition under Artrcle 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 order, Direction or writ, more particularly one in the nature of writ of l\rlandamus, to declare the action of the official respondents in demolition/removal of 4 columns along with footings and part of the basement of plot No.1 6, East part, in Sy No.36/4, admeasuring 146 sq. yards or 122-05 sq. mtrs., situated at ward No.,r2, Block No.'1 , Krishnagar Colony, Bandlaguda, Under GHMC, LB Nagar Circle, Uppal Mandal, Medchal-Malkajgiri District, is illegal, arbitrary and violative of the orders of the Honble court dt.26l0412019 in wp No.920g ol 2o1g and violative of the principles of natural justice and violative of the provisions of the GHMC Act and the rutes framed thereunder and consequen y direct the respondents to pay a sum of Rs.4,00,000/- to the petitioner towards compensation towards demolition of 4 columns along with footings and part of the basemenl on 2sto1l2o20 of the above property,

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IANO: 1OF2 020

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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 may be pleased to direct the respondents not to interfere with the possession and construction over the subject property - PIot No.16, East part, in sy.No.36/4, admeasuring 146 sq. yards or 122-oS sq mtrs., situated at ward No.12, Brock No.1, Krishnagar corony, Bandraguda, Under GHI,4c, LB Nagar circre, Uppar tr,4andar, tvredchar-Malkajgiri District in any manner, beronging to the petitioner, pending disposar of the main writ petition.

lA NO:^'l oF 2021:

Between:

AND

Y..Vivekan-anda, S/o. Late y.V. Raghava Rao, aged about 44 years, R/o. D. No. 1 1 - 1 2-383, Road No. 6, na ma"irisrrnafu;;, tivd;ffi ;;; ;.;r""rr",

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1 !mt.^{G. Lalithamma,W/o. Sri G. Chenna} Reddy, aoed 64 years Occ. Business, R/o. House No. 11-13-554/2, noaotrto.r5, nir,ipiirii"e Nusii, Ftyd.;roril' '"-"

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...WRIT PETITIONER/RESPONDENT NO. 1

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The State of Telangana, Rep by its Principal Secretary, ft/unicipal and CAD Department, Secretariat, Hyderabad.

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3, Greater Hyderabad lVunicipal Corporation, Lower^{Tank Bund, Hyderabad Rep by} its Commissioner

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The Deputy Commrssioner, Greater Hyderabad^{Municipal Corporation Circle No.} 3, LB Nagar lVlunicipality, Hyderabad

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The Dy. eommissioner, Circle-3, Hayathnagar, GHMC,^Hyderabad.

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rhe Dy. collector and rahsirdar, Uppal^{rvland.l, R8itf,S.i,11Y_?,3[L.lo=*r,} , ro u

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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 courl may be pleasedto receive} copies of the following documents viz.,

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Layout Plan in respect of Plot No.36^{in S.No.39 clearly showing existenceof} 25 ft road on the northern side;

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Registered Sale deed bearing^{document No.13489/1994dt: 1711111994 in} favour of the father of Petitioner^{herein clearly showing existenceof 25 ft road on the} northern side;

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Permission^{granted by GHtt/c to the fatherof petitioner herein to construct} the building dt:04/09/2001 ,

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on his behalf in the above^{WritPetition.}

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lA NO: 2 OF 2021

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Petition under Section 151 CPC^{prayingthat in the circumstances stated in the} affidavit filed in support of^{the petition, the High court may be pleasedto reopen the} above writ Petition for the^{purpose of receivingthe documents mentioned in the} connected lA on his behalf^{in the above Writ Petition}

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Counsel for the Petitioner:^{SRI B. CHANDRASEN REDDY, SENIOR COUNSEL} FOR M/s. CHANDRASEN^{LAW OFFICES}

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Counsel for Respondent^{No. 1: GP FOR MUNICIPAL ADMINISTRATION&} URBAN DEVELOPMENT

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Counsel for Respondent^{Nos. 2 to 4: SRISAMPATHPRABHAKARREDDY,} SC FOR GHMC

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Counsel for Respondent^{No. 5: GP FOR REVENUE}

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Counsel for Respondent No.^{6: SRI V. V. L. N. SARMA}

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The Court made the following:^{COMMON ORDER}

[ - -

THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

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WRIT PETITION Nos. 1412 and 2913 of 2O2O

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COMMON ORDER:

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Since the subject matter of both these writ perition is one and the same, the writ petitions are taken up together and are being disposed of by this common order.

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W.P.No.l4\2 of 2020 is filed seeking a writ of mandamus declaring the action of the respondent Nos.2 to 5 in not taking any action on the representation of the petitioner dated 01 ,06.2019, pursuant to the order dated 26.04.2019, passed by this Court in W.P.No.9208 of 2019, as illegal and arbitrary.

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W.P.No.2913 of 2O2O is filed by the respondent No.6 in W.P.No. 1412 of 2O2O seeking a writ of mandamus declaring action of official respondents in demolishing/removing four columns along with footings and part of the basement of Plot No.16, East Part, in Survey No.36/4, admeasuring 146 Square Yards, situated at Ward No.12, Block No.1, Krishna Nagar Colony, Bandlaguda, lJppal Mandal, Medchal-Malkajgiri District, as illegal and arbitrary and violative of thc order dated 26.O4.2019 in W.P.No.9208 of 2019.

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The case o[ the petitioner in W.P.No.l41r2 ol 2O2O, in brief, is that his lather purchased a plot bearing Plot No.36, in Survey No.39, ESICtr Cooperative Building Society Limited, Bandlaguda, under a registered sale deed dated 17.11.1994 and constructed a house therein in 2001, after obtaining valid permission from the concerned authorities. It is stated that when some local people started constructing a rvall across the road in front of his house, his father gave a complaint to the respondent No.3 to take necessary action. Pursuant to the said complaint, the Municipal Authorities have demolished the wall.

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W.P.Nos.1412 and 2913 of 2020

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While so, one Yashodhara Devi, the owner of Plot No. 16, admeasuring 1000 square yards, in Survey No.36/4, Krishna Nagar Colony, Bandlaguda, filed L.G.O.P.No.47B of 2002 on the lile of rhc XIV Additional District Judge, Ranga Reddy District at L.B. Nagar, agains! the petitioner's father to declare him as land grabber and for payment of compensation. After going through the evidence produced by both the parties, the learned Tribunal dismissed the said L.G.O.P. uide order dated 12.12.2017. Aggrieved by the same, the said Yashodhara Devi filed W.P.No.5573 ol 2Ol9 and a Division Bench of this Court uide order dated 22.03.2019 has dismissed the saici writ petition.

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It is stated that during the pendency of the said L.G.O.P., the saiC Yashodhara Devi has applied for LRS and building permission and that though the petitioner's father had submitted a representation on 26 .O2.2013 bringing to the notice of the respondent No.3 about the pendency of the said case, the respondent No.3 has processed the application and gave approval for the entire extent of 1000 square yards of land, including the subject land. While so, the petitioner's father dicd on 16.O9.201,7 .

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It is further stated that the said Yashodhara Devi had gifted an extent of 323 square yards from out of 1000 square yards to her son by name Manthena Jaganmohan through a registered gift settlement deed. The said Jaganmohan, in turn, has sold an extent of 146 square yards of land from out of the said 323 square yards to Smt.G.Lalithamma, the respondent No.6 herein and the petitioner in W.P.No.2913 of 2020. The respondent No.6 has applied for building permission and the same was granted to her on 05.03.2018.

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AAR, J W.P.Nos 1412 and 2913 0f2020

I /

It is further stated that the respondent No.6 filed O.S.No.229 of 2019 on the file of the Court of the I Additional Junior Civil Judge, Ranga Reddy District, L.B. Nagar, against the petitioner seeking perpetual injunction, and the learned Judge has passed an ex parte injunction order on 14.03.2019. Under the guise of the said interim injunction order, the respondent No.6 started construction by encroaching the road portion on the northern side of the petitioner's property. As the said construction was blocking the ingress and egress to the petitioner's house, the petitioner gave a representation to the official respondents on 06.02.2019 to take necessary action against the respondent No.6. But, the official respondents did not take any action. Therefore, the petitioner approached this Court and filed W.P.No.9208 of 2Ol9 and this Court uide order dated 26.04.2019 has disposed of the said writ petition directing the respondent authorities to consider the complaint of the petitioner and take necessary action if the respondent No.6 has encroached the road, as alleged by the petitioner, within a period of 15 days.

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It is lurther stated that lhe respondent No.4 has addressed a letter dated 16.03.2019 to the respondent No.S requesting him to conduct survey of both Survey Nos.36/4 and 39 and fix the boundaries on ground for taking further action in the matter. But, thereafter, no action has been taken thereon. Therefore, the petitioner has submitted a detailed representation to the respondent No.3 on 01.06.2019 duly enclosing the orders passed by this Court and requesting him to take necessary action. But, so far no action has been taken thereon. Hence, the petitioner filed W.P.No.l4l2 of 2O2O.

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W.P.Nos.1412 and 2913 of 2O2O

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The case of the petitioner in W.p.No.2973 of 2O2O is that she is the owner and possessor of part of plot No. i6 in Survey No.36/4, admeasuring 146 square yards, in Krishna Nagar Colony, Bandlaguda, Uppal, and that she has also purchased another plot i.e., part of Plot No.16, admeasuring 146 square yards, in Survey No.36/4. She has purchased the said plots under two registered sale deeds dated 03.01.2018. Her predecessor- in- title, u,ho rvas holding 1000 square yards, which is part of the subject property, got regularized the said property under LRS Scheme uide proceedings dated 13. 12.2O 12.

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The grievance of the petitioner is that she has commenced the construction of residential house on 22.01.2020 by raising basement, footings and nine columns, and that on 2S.01.2020, the Municipal Officiats came to the property and ctemolished four columns with footings and the basement partly, without issuing any notice and without affording any opportunity of hearing to her.

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Insofar as W.P.No. 141,2 of 2020 is concerned, respondent Nos.2 to 4 have liled a counter affidavit denying the petilion averments and stating that when the respondent No.6 rvas making illegal constructions under the guise of the ex parte injunction order passed in O.S.No.229 of 2O19, the re spondent authorities have demolished the said illegal constructions. That pursuant to the order passed in I.A.No.2023 of 2019 in C.M.A.No.99 of 2019, the Mandal Surveyor has surveyed the land in Survey Nos.36/4 and 39, and gave a report stating that Plot No. 16 falls in Survey No.36/4. The Mandal Surveyor has also submitted a sketch map, which shows that the property of the petitioner is situated in Survey No.39, whereas the plot of respondent No.6 is situated in Survey No.36/4 and that they are adjacent to each other. That as

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AAR J WPNos 1412 and 2913 012020

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the said properties purchased by the petitioner and the respondent No.6 are from dilferent layouts and adjacent to each other, there appears to be overlapping and dispute with respect to the boundaries.

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The respondent Nos.2 to 4 have filed a counter in W.P.No.29 13 of 2O2O also. Though the respondent Nos.2 to 4 have reiterated the averments made in the counter filed in W.P.No.1412 ol 2O2O, it is specifically stated that the petitioner claims to be the owner of the subject property situated in Survey No.36/4 under registered document, but contrary to the same, the petitioner is making claim over the road portion situated in Survey No.39 and that the lands of Survey Nos.36/4 and 39 are adjacent to each other.

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Heard Sri B. Chandrasen Reddy, the learned Senior Counsel appearing for the petitioner in W.P.No.29 13 of 2020, Sri V.V,L.N,Sarma, the learned counsel for the petitioner in W.P,No. 1412 of 2020, the learned Government Pleader for Municipal Administration and Urban Development, and Sri Sampath Prabhakar Reddy, the learned Standing Counsel for GHMC. Perused the record.

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Admittedly, the petitioner in W.P. No. i412 of 2020 is claiming plot No.36 in survey No.39 whereas the petitioner in W.P.No.2913 of 2O2O is claiming plot No.16 in survey No.36/4. The petitioner in W.P.No.14 12 of 2O2O for reasons best known to him has not got the ex parte injunction order dated 14,O3.2019 passed in O. S. No.229 ol 2O 1 9 vacated even after lapse of more than two years. He is also aware that a survey has been conducted pursuant to the orders passed in l.A. No.2023 of 2019 in C.M.A. No.99 ol 2019 wherein it has been specifically stated that plot No.16 claimed

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W.P.Nos.1412 and 29i 3 of 2O2O

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by the petitioner in W.p. No.2913 of 2O2O is falling in survey No.36/4. The petitioner in W.p. No. 1412 of 2O2O is also well aware of the LRS proceedings issued in lavour of the predecessor_in_ interest of the petitioner in W.p. No.29 l3 of 2O2O vide proceedings No.LRS/ 13389/CR-3/East ZonelGHMC I 2OO9, dated 13. t2.2Or2, and that they have obtained building permission vide permit No.3/C3/0389612018, dated 05.03.2018, but has nor bothered to challenge the same, till date. Except making representation to the authorities to take action, the petitioner in W.p.No. l4l2 of 2O2O has not challenged either the LRS proceedings dated 13.12.2O12 or the building permission dated 05.03.2018 granted in favour of the petitioner in W.P.No29 13 of 2O2O. Once, the LRS proceedings are issued in favour of the predecessor-in-interest of the petitioner in W.P. No.2913 of 2O2O, the remedy available to the petitioner in W.P.No. 1412 of 2O2O is to seek cancellation of the said LRS proceedings or to approach the Civil Court, in case he is ciaiming any easementary rights with regard to the approach road to his plot. But, he cannot file petitions before the civic authorities for claiming any easementary rights.

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Admittedly, the plot which the petitioner in W.p. No.1412 of 2020 is claiming is under a Gram panchayat lay out and not an approved lay out ol GHMC or HMDA. As per the counter filed by respondent Nos.2 to 4 in W.P. No. 1412 of 2O2O, there is a survey dispute with regard to survey No.39. and 36/4 and there seems to be some overlapping of the plot of the petitioner in both the cases. When such is the case, neither the civic authorities nor this Court under Article 226 of the Constitution of India can go into the disputed questions of title and facts, it is for the parties to

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PAR, J W P Nos 1412 and 2913 ol2A20

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t/ V

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approach the competent Civil Court and seek necessary relief. Therefore, this Court does not find any merit in the present writ petition warranting any interference of this Court and if the petitioner in W.P.No.1412 of 2A2O is so advised, he is at Iiberty to approach the competent Civil Court and seek appropriate relief. The civic authorities cannot adjudicate the title of the parties or where there is a serious survey dispute and overlapping of the sites/plots. It is only the civil Court that can decide all these issues based on the evidence led by the parties.

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It'r K. Pauan RaJ u, M.C.H. Rep, by its Commissionerr, this

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Court, at para20, has held under:

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A carelful reaclitg of the prouisiorls of tle Act and the BAelorus does not indtcate tlutl tlle Cotunisstorter is entpowered lo etlenait o tille dispute and adildicote the sor,le before dispostrg of the applicatiotr for grant oJ buildtrg perrlLrssio,.. lldeed, both the prouisiols olt Secliors 428 and 429 aru) cLause (u) oJ Bveleu 4.2 enui-sage f.Iing of copies of title dee<ls^qnd there is no prouision uttder which the Commissioner can reject grant of building permit on the ground of title clispute. As held in Hgderabad Potteries (1 supra), if anA objection regarding title is receiued, the Commissioner is requtred to be pima facie sqtisfed. about the applicant's title to the properly and his lawful possession of the same and he cannot decid.e tttle dispute because that ts neither one of the duties assigned to him nor he is prouided with such an adjudicatory mechanism. A person setting up a riuq.l cldim of title, is free to approoch the court of competent^jurbdiction and seek appropiate relief in thdt regard, If the appltcattons lor building permissions a.re rejected merely on the ground of thtrd. parties rabirlg d.isputes of title, that may result in serious hardship to the owtlers of the propenies where friuolous, speculatiue and vexatious clo'ims tnaA be made bA third parties bA setting up title. Therefore, whereuer tlle Commissioner b, prima facie, satisf.ed about the legal title ol the applicant and his lawfut possessiorr, he is bound to consider the application fot building pernrrssiorr on n€nts, Ieattng tlp objector free to approach arr appropnole courl af Law."

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'^zoos 1r;A.p.L.J.2^(HC)

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W.P.Nos 1412 and 2913 of 202C

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ln Jagamma u. State of Karnata.ka2, a three-Judge Bench

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of Karnataka High Court has held as under:-

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"Commissioner has no jurisdiction to decide the title dispute between the parties in respect of immovable property/properties. It is the exclusive domain of the competent Civil Court to adjudicate the dispute/title in respect of the immovable property/properties and ultimately if any decree to be passed by the competent Civil Court will be binding on the parties as well as the revenue authorities in the State,

¶110

Insofar as W.P. No.29 l3 of 2O2O is concerned, the case of the petitioner herein is that the official respondents without putting her on notice, have demolished 4 columns along with footings and part of the basement in plot No.16. Admittedly, in this case, the LRS proceedings are issued in lavour ol the predecessor-i n-intere st of the petitioner herein way back in the year 2Ol2 and, necessary municipal building permission has also been granted on 05.03.20 18.

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This Court as well as the Hon'ble Supreme Court, on number of occasions, have held that as long as the municipal permission accorded by the competent authorities is in subsistence, the official respondents cannot take any action, except when it is lound that the construction being made is in deviation of the sanctioned plan. Moreover, the petitioner herein has already approached the Civil Court and obtained ex porle injunction order against the petitioner in W.P. No.1412 of 2020 and therefore the action of the oificial respondents in taking action against the petitioner herein u,ithout putting her on notice and calling for an explanation is unwarranted and the same is illegal, opposed to the principles of natural justice and also the provisions of the Greater Hyderabad Municipal

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'2o2o^{sc:OnLine Kar 211}

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rV\K, J W P Nos 1412 and 2913 of 2020

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Corporation Act, 1955. The authorities are mandated to put the petitioner on notice before taking any action. Moreover, once the LRS proceedings are issued by the competent authority, the title and all rights will vest with the person in whose favour the LRS proceedings are issued and the respondent authorities cannot raise any title dispute over the said site. If any third party claims any right in respect of the property, it is for that party to take necessary action for cancellation of the LRS proceedings but the civic authorities cannot interfere with the petitioner's possession.

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For the afore-stated reasons, W.P. No,29 13 of 2O2O is allowed and the official respondents are directed not to interfere with the construction being made by the petitioner herein unless it is found that she is making the construction contrary to the sanctioned plan, in which case, the official respondents are free to take necessary action, strictly in accordance with the procedure contemplated under the GHMC Act.

¶119

Accordingly, W.P. No.1412 of 2O2O is dismissed and W.P. No.2913 of 2O2O is allowed.

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Miscellaneous petitions pending in these writ petitions, if

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any, shall stand closed. There shall be no order as to costs.

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SD/- I.NAGALAKSHMI ASSISTANT REGISTRAR

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//TRUE COPY//

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SECTION OFFICER