THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
W.P.No.19049 OF 2020
ORDER:
Heard Sri O.Manohar Reddy, learned senior counsel, appearing on behalf of Ms.C.Avani Reddy, the learned counsel for petitioner, Sri N.Praveen Kumar, the learned Standing Counsel, for respondent No.1, and Sri Y.Rama Rao, the learned counsel for respondent No.2. With their consent, the Writ Petition is disposed of at the stage of admission.
2. The present Writ Petition is filed aggrieved by the action of the respondent No.1 in granting building permission vide File No. and Permit No.3014/W1/2020/1134, dated 13.09.2020, in favour of respondent No.2.
3. The case of the petitioner, in brief, is that he is the owner of the property, admeasuring 669.16 square yards, situated in Survey Nos.342 and 343/5 of Peddapalli Town and Mandal, Peddapalli District. According to the petitioner, earlier, he filed a suit being O.S.No.40 of 2011 on the file of the Junior Civil Judge, Peddapalli, seeking injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment over the subject property. The above suit was decreed, vide Judgment dated 19.03.2018. It is stated that during the pendency of the said suit, respondent No.2 has purchased part of the subject property i.e. an area admeasuring an extent of 402 square 2 AAR,J WP No.19049 of 2020 yards in Survey Nos.342 and 343/5 situated at Shanthi Nagar Sivaru, Peddapally Town and District, under a registered sale deed dated 09.05.2016, and thereafter made an application for building permission before respondent No.1-Municipality. The petitioner filed his objections before the respondent No.1 requesting the Municipality not to grant building permission in favour of respondent No.2. The respondent No.2, without disclosing the factum of decree of injunction granted by the trial Court against her vendor in respect of the very same property, has filed W.P.No.12376 of 2020, and this Court, vide order dated 11.08.2020 has disposed of the said writ petition directing respondent No.1 to accept the application of the writ petitioner (respondent No.2 herein) for building permission in terms of the Memo No.2252/M1/2017, dated 28.04.2017 issued by the Secretary to Government, M.A & UD Department, and pass appropriate orders, as per law. It is stated that after disposal of the said W.P.No.12376 of 2020 on 11.08.2020, respondent No.1 sought the legal opinion on the issue of granting building permission, and basing on the legal opinion, respondent No.1 has granted building permission in favour of respondent No.2 on 13.09.2020. Alleging that in spite of making a representation on 29.09.2020 and submitting objections on 13.02.2020 and 25.02.2020, respondent No.1 has granted building permission in favour of respondent No.2, the petitioner has filed the present writ petition.
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4. This Court, on 02.11.2020, while issuing notice before admission, has suspended the impugned building permission.
5. The counter affidavit is filed by respondent No.2 along with the vacate stay application, denying the averments made in the writ petition and has stated that the vendor of the petitioner got an extent of Ac.1.00 guntas of land in Survey Nos.342 and 343/5 of Shanthi Nagar, Peddapalli, on 07.03.2008 by way of final decree in a suit for Partition being O.S.No.69 of 2001 on the file of the Senior Civil Judge, Peddapalli; that respondent No.2 is not a party to the suit O.S.No.40 of 2011 filed by the petitioner for perpetual injunction nor she is having any notice about the same. The perpetual injunction granted in O.S.No.40 of 2011 is not binding on her; that she purchased an extent of 402.5 square yards of land for a valuable consideration from her vendor, D.Thirupathamma, who got an extent of Ac.1.00 guntas of land in Survey Nos.342 and 343/5, by way of final decree in O.S.No.69 of 2001. That the petitioner instead of approaching the Civil Court for settling the title dispute has chosen to file the Writ Petition under Article 226 of the Constitution of India, which is impermissible. The Municipal Commissioner after duly verifying the documents has prima facie found that the respondent No.2 is having prima facie title and is in possession of the subject land has granted building permission, pursuant to the order dated 11.08.2020 4 AAR,J WP No.19049 of 2020 passed by this Court in W.P.No.12376 of 2020, and the same cannot be faulted with. The partition suit between D.Venkateswara Reddy and D.Thirupathamma was decreed, and the vendors of the petitioner was allotted Ac.1.00 gts., towards western side of the suit schedule property whereas the vendors of respondent No.2 was allotted eastern side part. By suppressing all these material facts, the petitioner has obtained interim order from this Hon'ble Court and therefore it is prayed to vacate the interim order passed by this Court on 02.09.2020 and also to dismiss the writ petition.
6. In the reply filed by the writ petitioner to the counter affidavit, it is stated that the vendor of respondent No.2 is a party to the suit (arrayed as defendant No.2) and the first bit of the schedule land is purchased by the respondent No.2 herein. Therefore, the contention that the decree of the Civil Court is not binding on the petitioner is not correct for the reason that the respondent No.2 purchased the property during the pendency of the suit. It is specifically contended that the respondent No.2 has suppressed the decree of the Civil Court and got an order from this Court in W.P.No.12376 of 2020 basing on which the building permission was granted. The property purchased by respondent No.2 is covered by the decree passed by the Civil Court, therefore the respondent No.2 is bound by the said decree. That the Municipality has granted the building permission without 5 AAR,J WP No.19049 of 2020 taking into consideration the objections filed by the petitioner and the decree passed by the Civil Court which has become final. Hence, prayed to allow the writ petition.
7. The learned counsel for the writ petitioner has contended that the building permission was obtained by the respondent No.2 by suppressing the judgment and decree, dated 19.03.2018 passed in O.S.No.40 of 2011, by the Civil Court in favour of the petitioner herein. Even the order dated 11.08.2020 passed by this Court in W.P.No.12376 of 2020, which is the basis for grant of building permission by respondent No.1, was also obtained by respondent No.2 by fraud, by suppressing the true facts and without disclosing the judgment dated 19.03.2018 before this Court. That the subject property of the impugned building permission is part and parcel of the suit schedule property of the Civil Suit and the vendor of the respondent No.2 is arrayed as defendant No.2 in the said Civil Suit. The contention of the respondent No.2 that the judgment and decree, dated 19.03.2018 in O.S.No.40 of 2011, passed by the Civil Court is not binding on her as she is not a party to the suit, is not available to respondent No.2. Learned counsel has further contended that in spite of the objections raised by the petitioner, respondent No.1 has granted building permission, without application of mind, and solely based on the orders passed by this Court in W.P.No.12376 of 2020, dated 11.08.2020.
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Therefore, the learned counsel prays this Court to set aside the impugned building permission granted by respondent No.1 in favour of respondent No.2.
8. Per contra, the learned Standing counsel for respondent No.1 has contended that after obtaining legal opinion in the matter and as per the direction issued by this Court in W.P.No.12376 of 2020, dated 11.08.2020, the impugned building permission has been granted by respondent No.1. That the Municipality after finding that the 2nd respondent has the prima facie title and in possession of the property has granted the Building Permission.
9. Learned counsel for respondent No.2 has contended that the impugned building permission has been granted by respondent No.1 duly taking into consideration the material produced by respondent No.2 including the order passed by this Court in W.P.No.12376 of 2020, dated 11.08.2020. The only remedy available to the petitioner is to approach the civil Court and the writ petition under Article 226 of the Constitution of India is not maintainable for the relief sought by the petitioner. Learned counsel has taken this Court to the final decree, dated 07.03.2003, passed in O.S.No.69 of 2001 to contend that the land purchased by the respondent No.2 fell to the share of the vendor of respondent No.2 and therefore the contention of the petitioner that the vendor of respondent No.2 does not have any title to the property is 7 AAR,J WP No.19049 of 2020 incorrect. That the respondent No.2 is in physical possession of the property and is constructing the building strictly in accordance with the sanctioned plan. Thus, the learned counsel has prayed this Court to dismiss the writ petition.
10. Heard both sides and perused the record.
11. A perusal of the documents filed by the parties reveal that the writ petitioner has filed a suit for perpetual injunction being O.S.No.40 of 2011 on the file of the Junior Civil Judge at Peddapalli. Pending the suit for perpetual injunction in O.S.No.40 of 2011, the vendor of the respondent No.2 i.e. defendant No.2 therein remained ex parte and sold the property to respondent No.2 vide registered sale deed, dated 09.05.2016, bearing document No.2225/2016. The said suit has been decreed on 19.03.2018. One of the schedules of the property in that suit is as follows:
East : 20 feet road
West : 20 feet road
North : House of the defendant constructed
in 250 Sq.Yds., out of the suit land
South : 30 feet road
12. The vendor of the respondent No.2 i.e.,
Smt.Donthireddy Thirupathamma was arrayed as defendant No.2. The respondent No.2 has purchased the scheduled property vide registered sale deed, dated 09.05.2016, bearing document No.2225/2016. As per the recitals in the said sale deed and also the pleadings of the respondent No.2, the 8 AAR,J WP No.19049 of 2020 vendor of the 2nd respondent is claiming title to the property vide judgment and decree, dated 07.03.2003, in O.S.No.69 of 2001 on the file of the Senior Civil Judge at Peddapalli. In the said suit for partition, Smt.D.Thirupathamma was allotted ½ share in the suit schedule property i.e., Ac.1.00 out of the total Acs.2.00 guntas in Sy.Nos.342 and 343/5 situated at Shantinagar of Peddapalli.
13. Admittedly, the respondent No.2 has purchased the property in question on 09.05.2016, thereafter, she filed an application for building permission on 29.01.2020. When the said application for building permission was not processed, she filed a writ petition in August, 2020. The said writ petition was numbered as W.P.No.12376 of 2020 and was disposed of vide order dated 11.08.2020. Pursuant to the order passed by this Court in W.P.No.12376 of 2020, the Municipality obtained the Legal Opinion of its Standing Counsel and on the basis of the Legal Opinion, dated 23.08.2020, the building permission was granted on 13.09.2020. The writ petitioner has filed representations, dated 13.02.2020 and 25.02.2020, bringing to the notice of the municipal authorities to stop the illegal construction undertaken by the respondent No.2 and that there was a dispute with the title to the said property.
14. In the above factual background, the issue before this Court is whether the Municipality was correct in granting the 9 AAR,J WP No.19049 of 2020 building permission based on the registered sale deed, dated 09.05.2016, relied by the respondent No.2, without considering the objections filed by the petitioner.
15. As seen from the record, the suit schedule property in O.S.No.40 of 2011 and the schedule land mentioned in the registered sale deed relied by the 2nd respondent is one and the same. The bondaries shown in the sale deed of respondent No.2 and the one shown in the suit in O.S.No.40 of 2011 filed by petitioner tally with each other and are identical. The vendor of the 2nd respondent is a party defendant in the suit filed by the petitioner i.e., O.S.No.40 of 2011 and therefore, the contention of the 2nd respondent that the judgment and decree, dated 19.03.2018, in O.S.No.40 of 2011 on the file of the Junior Civil Judge, Peddapalli, is not binding on her is not correct and unavailable to her. The law on lis pendens is well settled.
16. Section 52 of the Transfer of Property Act, 1882, reads as follows:
"During the pendency in any Court having authority within the limits of India... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
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17. The Hon'ble Supreme Court in Sanjay Verma Vs. Manik Roy and others1, at para 12, held as under:
"The principles specified in Section 52 of the TP Act are in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendent elite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodies in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court."
18. In this particular case, the respondent No.2 has purchased the property during the pendency of O.S.No.40 of 2011 filed by the petitioner herein and cannot take the defence that she is not bound by the judgment and decree passed in O.S.No.40 of 2011, dated 19.03.2018, passed by the Junior Civil Judge, at Peddapalli. It is pertinent to extract the finding in the judgment recorded by the learned Junior Civil Judge at Peddapalli in O.S.No.40 of 2011, dated 19.03.2018.
".... Ex.A.13 shows that the defendant No.2 filed suit vide O.S.No.69 of 2001 for partition and separate possession of the land extent of Ac.200 gts., in Sy.No.342, 343/5 against 1 (2006) 13 SCC 608 11 AAR,J WP No.19049 of 2020 her son i.e., defendant No.1 and the same was decreed by declaring that they are entitled for equal share i.e., Ac.1.00 gts., each. In the said suit, the defendant No.1 was set ex parte. The wife of plaintiff No.1 and other 14 persons filed suit vide O.S.HNo.71 of 2004 for declaration and injunction against the defendants No.1 and 2 herein this case and Muriki Sappalaiah for the land in Sy.No.342, 343/5, in which the defendants No.1 and 2 have filed their written statement, in that they have stated that they got Ac.1.00 gts., of land each inf parltition suit i.e., OS.No.69/2001. The defendant No.1 filed suit in OS.No.74 of 2004 for perpetual injunction against the wife of plaintiff No.1 for the land extent of Ac.1.00 gts., in suit survey number, in which he stated that himself and his mother got land each Ac.1.00 gts., in a partition in OS.No.69/2001, the same suit was dismissed for default. But, the defendant No.1/DW1 stated in his chief examination affidavit that he succeeded the land extent of Ac.2.00 gts., in Sy.No.342, 343/5 from his father. This shows that the pleadings of the defendants No.1 and 2 in O.S.No.71 of 2004 and the pleadings of defendant No.1 in O.S.No.74/2004 appears to be false to the extent, they got land extent of Ac.1.00 gts., in the partition through Court decree in O.S.No.69/2001. As such, the entries were recorded in the name of defendant No.2 as pattedar and possessor of land extent of Ac.1.00 gts., in Sy.No.342, 343/5 under Exs.B.2, B.3 and B.6 appears to be false. It appears that the defendant No.1 cleverly filed a suit in OS.No.69 of 2001 through his mother against him by suppressing about the Exs.A.2 to A.4....
In the result, the suit is decreed by granting perpetual injunction restraining the defendants, their family members, agents and workmen etc., from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. In the circumstances of the case, there is no order as to costs."
19. In view of the above finding recorded by the Civil Court, the 2nd respondent cannot take shelter under the judgment and decree passed in O.S.No.69/2001, dated 07.03.2003, 12 AAR,J WP No.19049 of 2020 passed by the Senior Civil Judge, at Peddapalli, to contend that the vendor has the necessary title and right to alienate the subject property.
20. Though the Counsel for respondent No.2 and the Standing Counsel for respondent No.1 have vehemently argued that based on the order passed in W.P.No.12376 of 2020, dated 11.08.2020, the authorities have granted Building Permission. Therefore, the same cannot be faulted with. It is pertinent to extract the operative portion of the order, dated 11.08.2020, passed in W.P.No.12376 of 2020 to find out as to whether this High Court has given such an order as contended by the learned counsel for respondent No.2:
"Accordingly, the writ petition is disposed of, directing the Respondent Municipality to accept the Application of the petitioner for building permission in terms of the Memo No.2252/M1/2017, dated 28.04.2017, issued by the Secretary to Government, MA & UD Department, and pass appropriate order, as per law. No costs."
21. A reading of the above order makes it abundantly clear that the Municipality was only directed to accept the application and pass appropriate order. The order does not in any manner directed the Municipality to sanction the building permission. As on the day, the application for building permission was considered, the objections of the petitioner were pending before the authority, but there is absolutely no whisper or reference in the impugned Building Permission as 13 AAR,J WP No.19049 of 2020 to whether the said objections were considered or not. The Municipality as well as the 2nd respondent were well aware of the objections filed by the petitioner, as is evident from the fact that the application for Building Permission was kept pending from 29.01.2020 for a period of more than eight months. The Municipality has acted only after the order in W.P.No.12376 of 2020, dated 11.08.2020, was passed.
22. The authorities were bound to consider the objections filed by the petitioner against granting of the Building Permission, instead of disposing of the said objections by a separate reasoned order, they chose to ignore the same and granted permission without reference to the said objections. Therefore, this Court has to necessarily hold that the building permission granted by the Municipality without considering the objections of the petitioner is bad, arbitrary and against the principles of natural justice and equity.
23. In view of the above stated facts and circumstances, the writ petition is partly allowed and the Building Permission, dated 13.09.2020, granted in favour of respondent No.2 is set aside. The matter is remanded back to the Commissioner to consider the application for Building Permission, afresh, duly taking into consideration the objections filed by the petitioner herein. It is needless to state that the prayer for demolition of the building sought by the petitioner cannot be granted as admittedly the 2nd respondent has constructed the building 14 AAR,J WP No.19049 of 2020 under Building Permit Orders, dated 13.09.2020, and therefore, the same cannot be considered as an unauthorized building.
24. Till such time, the Municipal Commissioner passes the order on the application of the 2nd respondent, afresh, the respondent No.2 is restrained from making any further construction in the subject land.
25. Any observations made in this Writ Petition are for the purpose of disposing of the present writ petition and should not be construed as giving any finding on the title of the party. The authorities are directed to pass the order independently and uninfluenced by the above observations.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
_________________________ A.ABHISHEK REDDY, J Date : 05-01-2021.
va/sur/smr