HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.328 OF 2021
ORDER:
This writ petition is filed to declare the inaction of respondents, particularly respondent No.2 in taking steps to prevent and stop the illegal construction activity being carried on by respondent Nos.3 to 8 in and over the property of the petitioner admeasuring Ac.0-09 cents or 435.6 square yards, forming part of Sy.No.148/12 Paiki, situated at Waddepally Municipality, Jogulamba - Gadwal District, as illegal and arbitrary and for a consequential direction to respondent No.2 to remove all the illegal and unauthorized constructions in and over the subject property.
2. Heard Mr. V. Ramakrishna Reddy, learned counsel for the petitioner, Mr. N. Praveen Kumar, learned Standing Counsel appearing on behalf of respondent No.2 and Mr. Mantha Rajendra, learned counsel for respondent Nos.3 to 8.
3. The case of the petitioner is as under:
i) He is the absolute owner and possessor of the land admeasuring Ac.0-09 cents or 435.6 square yards, forming part of Sy.No.148/12 Paiki, situated at Waddepally Municipality, Jogulamba - Gadwal District. He had purchased the same from Sri Byreddy Chiranjeevi, son of Parvatha Reddy for a valuable consideration under a registered sale deed bearing document No.4425 of 2010, dated 04.08.2010.
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KL,J W.P.No.328 of 2021
ii) Originally, one Sri Kanaka Druga Prasad Rao, son of Swami Rao was the absolute owner and possessor of the land admeasuring Ac.0- 15 guntas forming part of Sy.No.148/Paiki. He had sold entire extent of Ac.0-15 guntas in favour of one Jilledudinne Venkatanna through a registered sale deed bearing document No.497 of 1967, dated 04.04.1967.
iii) After the death of said Jilledudinne Venkatanna, his son, Sri Boya Bazari who succeeded him, in turn had executed a registered Gift Deed bearing document No.1438 of 1988 dated 05.03.1988 in favour of his then minor daughter, Boya Venkateshwaramma duly conveying the land admeasuring 207.5 square yards and 435.6 square yards respectively out of the said extent of Ac.0-15 guntas.
iv) After attaining majority, Boya Venkateshwaramma had sold an extent of 435.6 square yards to the vendor of petitioner herein under a registered sale deed bearing document No.3174 of 2007, dated 07.09.2007 and, thus, the vendor of the petitioner became the absolute owner of the subject property and thereafter the petitioner herein.
v) During the year 2010, respondent Nos.3 and 4 along with their deceased brother - Suragouni Anjaneya Goud, who is the husband of respondent No.5 and father of respondent Nos.6 and 8 herein, had filed a suit bearing O.S. No.93 of 2010 on the file of learned Senior Civil Judge at Gadwal seeking cancellation of sale deed bearing document No.4425 of 2010, dated 04.08.2010 under which the petitioner had purchased the 3 KL,J W.P.No.328 of 2021 subject land, and for consequential relief of permanent injunction. The said suit was dismissed on merits vide judgment and decree dated 24.04.2017. Aggrieved by the said judgment, respondent Nos.3 to 8 preferred first appeal vide A.S. No.4 of 2019 on the file of the III Additional District Judge, Gadwal, and the same is pending.
vi) Mr. Suragouni Gajendra Goud has also filed suit vide O.S. No.125 of 2007 on the file of the learned Junior Civil Judge at Alampur against the vendor of the petitioner seeking declaration of title and consequential injunction in respect of land admeasuring Ac.0.09 cents in Sy.No.148. The said land and the land purchased by the vendor of the petitioner are different and distinct.
vii) Respondent No.3 also preferred an appeal under Section - 5 (5) of ROR Act before the RDO at Gadwal in ROR Appeal No.C/710/2010 challenging the mutation proceedings granted in favour of the vendor of the petitioner and the said appeal was allowed setting aside the mutation proceedings issued in favour of the petitioner. As against the said orders, the petitioner preferred a revision under Section - 9 of the ROR Act before the Joint Collector, Mahabubnagar District vide Revision Petition No.D1/64/2011 and the same is pending.
viii) In the second week of December, 2020, respondent Nos.3 to 8 have high handedly trespassed into the subject land and have tried to raise some temporary structures without obtaining any permission from respondent No.2. When the petitioner approached the police, they 4 KL,J W.P.No.328 of 2021 refused to register any case against respondent Nos.3 to 8. The petitioner has also made a complaint to respondent No.2 on 21.12.2020 for removal of temporary structures, but respondent No.2 did not take any steps so far. Therefore, the present writ petition.
4. Contentions on behalf of the petitioner:
i) Learned counsel for the petitioner reiterating the contents of the writ affidavit would further submit that there are civil cases are pending between the petitioner and the unofficial respondents; that without obtaining any permission from respondent No.2, the unofficial respondents are making constructions on the subject land; and that despite giving a complaint to respondent No.2, no steps have been taken for removal of such illegal structures.
5. Contentions of behalf of the respondents:
i) Referring to the interim orders dated 07.04.2021 passed by this Court, Learned Standing Counsel appearing on behalf of respondent No.2 would submit that respondent No.2 had issued a notice dated 16.04.2021 to respondent No.3 for removal of iron tin sheds that were erected without permission. Respondent No.3 submitted his reply to the said notice. Since respondent No.3 failed to comply with the said notice, respondent No.2 again issued a notice dated 28.06.2021 informing him about the seizing of the iron tin sheds erected illegally in Sy.No.148/Paiki and accordingly directed him not to commence any further activities over the said land without getting further orders from this Court. In view of 5 KL,J W.P.No.328 of 2021 the same, respondent No.2 has complied with the interim order dated 07.04.2021.
ii) Referring to the contents of the counter affidavit filed by respondent Nos.3 to 8, learned counsel for respondent Nos.3 to 8 would submit that the petitioner herein is only claiming that the land in Sy.No.148/12 paiki situated in Waddepally Municipality based on a created document No.4425 of 2010, dated 04.08.2010 with a new survey number which is not in existence. He is creating litigation despite the decree passed by the Court below in O.S. No.125 of 2007 stating that respondent No.3 is the absolute owner and possessor of the land admeasuring Ac.0-09 cents in Sy.No.148 paiki having purchased the same vide registered document in the year 1987. A house number 8-83 was also allotted by the Gram Panchayat, Waddepally during 2007 and 2011. Except a single created document No.4425 of 2010, no other document available with the petitioner to prove his title and that the survey number which was mentioned does not exist in Waddepally Municipality.
iii) With the above said submissions, the learned counsel sought to dismiss the writ petition.
6. Analysis and finding of the Court:
i) The aforesaid rival contentions would reveal that there are civil disputes pending between the petitioner and the unofficial respondents. In view of the same, this Court cannot decide title/rights of the parties under Article - 226 of the Constitution of India. The issue, therefore, to 6 KL,J W.P.No.328 of 2021 be decided is whether the unofficial respondents are making construction without obtaining permission from respondent No.2?
ii) It is main contention of the learned counsel for the petitioner that the unofficial respondents are making structures un-authorizedly without obtaining permission from respondent No.2 Municipality. A perusal of the entire material including the notice dated 28.06.2021 issued by respondent No.2 would reveal that the unofficial respondents have erected the iron tin sheds unauthorizedly without obtaining permission. During the course of arguments, learned counsel for respondent Nos.3 to 8 has fairly conceded that there was no permission from respondent No.2 municipality to make structures in the subject property. In the counter filed by respondent Nos.3 to 8, there is no mention about any permission obtained by them from respondent No.2. As discussed supra, respondent No.2 has already acted upon the representation / complaint dated 21.12.2020 submitted by the petitioner herein by issuing notice dated 28.06.2021, seizing the unauthorized construction. He has filed copy of the said notice along with photographs. In view of the same, the unofficial respondents shall not proceed with the erection of temporary structures without obtaining any permission from respondent No.2.
7. Conclusion:
i) The present Writ Petition is accordingly disposed of directing respondent No.2 to consider the representation dated 21.12.2020 submitted by the petitioner and take further action in accordance with law 7 KL,J W.P.No.328 of 2021 pursuant to the notice dated 28.06.2021 by putting the petitioner as well as unofficial respondents on notice and affording them an opportunity of hearing, within a period of four (04) weeks from the date of receipt of a copy of this order. However, liberty is granted to the parties to decide the title over the subject property in a Court of law. Liberty is also granted to respondent Nos.2 to 8 to make constructions after obtaining the permission from respondent No.2. It is made clear that this Court has not expressed any opinion with regard to the title of the parties.
ii) However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 25th November, 2021 Mgr