THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
W.P.No.18247 OF 2020
ORDER:
The present writ petition is filed seeking to declare the impugned proceedings vide Roc.No.G1/2423/TPS- MMC/2020, dated 09.09.2020 issued by the respondent No.2 in respect of the petitioner's house bearing No.6-15/2 in plot No.35 North part situated at Venkata Sai Nagar, Jillelaguda, Saroornagar, Ranga Reddy, as illegal and void and consequently to set aside the same.
The case of the petitioner, in brief, are that she is the absolute owner and possessor of the house bearing No.6-15/2 admeasuring 70 sq.yards situated in survey Nos.59, 60, 67 & 68, Venkata Sai Nagar, Jillelaguda Village, Saroornagar Mandal, having purchased the same under registered sale deed bearing No.1020/2014, dated 23.01.2014, from one Miryala Ramu. Petitioner also got mutated her name in the municipal records. Thereafter, based on the complaint made by respondent No.3, a notice dt.27.08.2018 was issued to the petitioner stating that she has constructed the house without obtaining building permission and by encroaching the adjacent land, to which, the petitioner has submitted her explanation on 15.09.2018. Thereafter, no further action was taken. However, after the merger of Jillelguda Mnicipality with respondent No.2 Municipal Corporation, the impugned notice was issued. Again the petitioner has submitted another explanation on 26.09.2020. However, without 2 passing any orders thereon, the authorities of respondent No.2 have visited the house of the petitioner on 03.10.2020 and threatened to demolish the house, at the instance of respondent No.3. Hence, left with no other alternative, the petitioner has approached this Court by way of the present writ petition.
This Court, on 20.10.2020, while issuing notice before admission, has directed the parties to maintain status quo obtaining as on that day in all respects.
In the counter filed by Respondent No.3 along with Vacate Stay application, while rebutting the material averments of the writ petition, it has been stated that the original vendor of plot No.35 was having 303 sq.yards, out of which, respondent No.3 had purchased 250 sq. yards and therefore the left over land will be only 53 sq. yards whereas the petitioner is claiming to have purchased 70 sq. yards, which is incorrect. It is further contended that as per the sale deed of the petitioner, the property is in 'triangle' shape whereas the photographs filed by the respondent No.3 clearly reveals that the property is in 'rectangular' shape. Hence, the claim of the petitioner is contrary to the material on record and therefore prayed to dismiss the writ petition in limini.
Heard the learned counsel for the petitioner, learned Government Pleader for Municipal Administration and Urban Development for respondent No.1, learned Standing Counsel 3 for respondent No.2, and Sri Aadesh Varma, learned counsel for the respondent No.3.
As can be seen from the material on record, earlier the Municipality had issued a show-cause notice dated 27.08.2018 for which the petitioner has already submitted a detailed explanation on 15.09.2018, however, no action has been taken thereon. The stand taken by the learned counsel is that pursuant to the explanation submitted by the petitioner, the Municipality having satisfied with the explanation has not passed any orders and now after the change of the incumbent in the office of the Commissioner, the present notice is issued, which cannot be countenanced. Moreover, as per the contents of the show cause notice, the Commissioner intends to make a roving enquiry with regard to the title, possession and also the building which has been constructed way back in the year 2007 that too after taking due permission from the concerned Gram Panchayat. Therefore, the learned counsel states that the present impugned notice is a biased, malafide, and one without jurisdiction beyond the powers of the Commissioner to make an enquiry either with regard to title or encroachment and seeks indulgence of this Court to set aside the same.
Per contra, the learned counsel for respondent No.3 states that as per the documents through which the petitioner is claiming title, there is no mention of any building being in existence at the time of purchase. Moreover, the 4 photos filed by the respondent No.3 show that the building, which is in existence, as on date, is contrary to the dimensions of the plot shown in the sale deed and therefore the building has been constructed by encroaching the land of the respondent No.3. The learned counsel further states that the Commissioner has got ample power to examine as to whether the petitioner has constructed the building in question as per the sanctioned plan or not and take action as per law to remove the unauthorized structure. However, the learned counsel for respondent No.3 has fairly stated that insofar as the other allegations made in the notice either with regard to the encroachment or title of the petitioner cannot be gone into by the respondent No.2.
Having heard the submissions made by both the learned counsel and perused the entire material on record, this Court is of the opinion that the respondent No.2 is empowered to verify as to whether the petitioner is having a valid building permission or if any constructions are made in violation of the sanctioned plan. Admittedly, the vendor of the petitioner has obtained building permission way back in the year 2007 and made construction. Even a perusal of the photos filed by the petitioner as well as respondent No.3 shows that an old building is in existence, and no new construction is made in the subject land. Moreover, the municipality has issued a notice way back in the year 2018 and the petitioner has already submitted her explanation to 5 the said notice, but no action has been taken thereafter. Therefore, it has to be presumed that the allegations made by the respondent No.3 were found to be false by the authorities and the action was dropped. Even the respondent No.3 has kept quiet for the last two years for the reasons best known to him. If at all the respondent No.3 had any grievance with regard to the encroachment by the petitioner over the subject plot or with regard to the title over the same, his remedy is to approach the competent Civil Court and file a comprehensive civil suit for declaration and recovery of possession, but he cannot seek the help of the quasi judicial authorities for recovery of his possession over the encroached land.
This Court in catena of decisions has held that the Commissioner cannot deal with matter which involve disputed question of title.
In T. Rameshwar v. Commissioner, Municipal Corporation of Hyderabad1, this Court has held under:
"Therefore, the law as interpreted by this Court with reference to HMC Act and the Act, which requires the Commissioner to consider the objections, as and when they are raised, for grant of permission on the ground of title in a pragmatic manner taking into consideration only prima facie factors. While doing so, the Commissioner cannot assume the role of an adjudicator or arbitrator and decide the title inter se between the applicant for building permission and the objector of such building permission. If the applicant is able to show that prima facie such applicant has a right to proceed with the construction notwithstanding the pendency of any litigation by way of a suit or other proceeding subject to the applicant applying the certain conditions, the Commissioner may either grant permission or postpone the grant of permission."
1 2006 (3) ALD 337 6 In Guntuka Raja Ram v. State of Telangana2, this Court held as under:
"As the Commissioner, being not well versed with law and legal intricacies, has taken care of obtaining legal opinion from the learned standing counsel, GHMC and basing on the said legal opinion, the commissioner had come to the conclusion that there exists a serious dispute with respect to the title and enjoyment of the petitioner with respect to the land, over which the petitioner claims building permission. In such circumstances, it cannot be said that the Commissioner had erred in delegating the parties to the Civil Court, as it is not possible for the Commissioner to come to a conclusion, who has superior title, that is, either the petitioner or the implead petitioner.
In T. Rameshwar v. Commissioner, Municipal Corporation of Hyderabad and others MANU/AP/0156/ 2006: 2006 (5) ALT 582, adverting to the cases in which there exists civil disputes, this Court had quoted its earlier decision dated 24.11.2003 in W.P.No.3979 of 2003. In the said judgment, this Court had opined that "when the dispute is subjudice, it shall be the duty of the Commissioner to postpone the permission, that the public authority must respect the court decision and implement it or aid in implementing the same. .
In the very nature of the power exercised by the Commissioner and the parameters that are required to be considered in granting permission while exercising such power, the Commissioner is only required to examine the prima facie title of the applicant and if there is any doubt or any objection of serious nature is received, it may be desirable for him to obtain legal opinion to come to a conclusion as to whether the dispute in relation to title is of a serious nature and based on such legal opinion, the Commissioner may take a decision either to grant or reject the permission for construction. However, it may be cautioned that the legal opinion which the Commissioner may seek is not for coming to a conclusion between the two claimants who has superior title but only for the purpose of ascertaining as to whether there 2 2017 (4) ALD 415 7 was a serious triable dispute between the parties. In which event, the Commissioner is bound to relegate the parties to approach the civil courts for the purpose of resolving the title dispute. In other words, the order of the Commissioner either granting or rejecting permission is justifiable only to a limited extent on a narrow ground of whether the decision making process of the Commissioner vitiated and not the decision by itself."
For the afore-stated reasons and in view of the ratio laid down in the above judgments, referred supra, this Court has to necessarily hold that the impugned order is one without jurisdiction and has been issued in exercise of the powers not vested with the authority and the same is accordingly set aside. However, it is left open to the respondent No.3 to approach the competent Civil Court by filing a comprehensive Civil Suit, if he is so advised. It is also made clear that the observations made in this order are only for the purpose of deciding the writ petition and shall not be construed as giving any finding on the merits or demerits of the case. If any suit is filed by respondent No.3, the same shall be decided on its own merits, being uninfluenced by the observations made in this order.
Accordingly, the Writ Petition is disposed of. Miscellaneous petitions pending, if any, shall stand closed.
__________________________ A.ABHISHEK REDDY, J Date : 10-02-2021 sur