THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 23668 OF 2022
O R D E R:
This Writ Petition is filed seeking the following relief: " ... to issue a writ, order or direction preferably a writ in the nature of writ of mandamus by declaring the impugned notice vide proceedings No. 3/15/TPS/W10/C12/KZ/GHMC/2022, dated 10.05.2022 on the property of the petitioner describing it as alleged encroachment in Safdaria Colony Park on the western side of house bearing Door No. 10-3-15/2 and 10-3-15/3 situated at Humayun Nagar, Hyderabad, TS on 13.05.2022 as illegal, arbitrary, void and abuse of powers of the Respondents No. 2 to 4 which is in contrary to law and abuse of powers abridging the statue and constitutional right of the petitioner and depriving the rights in contrary to Article 300-A of Constitution of India without following due process of law in the interests of justice."
2. Sri R.A. Atchutanand, learned counsel for the petitioner submits that the notice dated 10.05.2022 issued by the respondents under Sections 402 and 405 of the Hyderabad Municipal Corporation Act, 1955 (for short, 'the Act') is impugned in the writ petition, whereby it is stated that 'they have received the objection petition from Azizia Welfare Association on 31.01.2022 that the petitioner has encroached Safdaria Colony Park on Western side of house bearing Municipal No. 10-3-15/2 and 10-3-15/3, Humayun Nagar, Hyderabad. They have directed to remove the said encroachment within 24 hours failing which the structure would be treated as unauthorised and further action for 2 removal of the encroachment under Section 405 of the Act would be taken'.
3. Sheet anchor of the submissions of the learned counsel for the petitioner is that the respondent municipal corporation has no authority or jurisdiction to issue the notice dated 10.05.2022 under Sections 402 and 405 of the Act as the respondent Corporation has suffered a judgment and decree in O.S.No.600 of 2011 on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad, dated 29.08.2011. Learned counsel submits that the petitioner is the absolute owner and possessor of the property either in whole or in part bearing House No. 10-3- 14/B/13 admeasuring 350 square yards situated at Humayun Nagar, Hyderabad and they have been in peaceful possession and enjoyment of the property. It is submitted that the petitioner with an intention to develop the property, approached the respondent Corporation and made an Application on 04.10.2010 by submitting required plans and other necessary documents for the purpose of obtaining building permission for construction of ground floor for residential purpose by demolishing the old structure. It is submitted that the respondent officials have received the said Application and they neither rejected the same nor granted permission even after repeated requests made by the petitioner herein. It is also submitted that since the respondent 3 officers have failed to pass any orders on the said Application even after statutory period of 30 days, the petitioner having no other alternative, decided to proceed with the construction work under the deemed provision. It is submitted that when the respondent Corporation is interfering with the construction activity, the petitioner has filed O.S.No. 600 of 2011 on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad. It is submitted that the Court below has decreed the said suit. The Court below has categorically observed that the petitioner herein who is the plaintiff in the suit made an Application by submitting building Application under Ex.A2 for grant of permission, but the defendant Corporation failed to pass any orders within the stipulated period on her Application and the petitioner proceeded with the construction under deemed provision by issuing notice under Sections 437 and 440 of the Act. Since there is no written statement from the defendant Corporation the allegations of the plaintiff remained unchallenged and proved basing on Exs.A2 and A3. When the Corporation failed to disapprove the building application within the stipulated period, the applicant is entitled for the benefit under the deemed provision and she can make construction but should not contravene any of the provisions of the HMC Act or building byelaws there under as the Corporation is an authority to regulate and mandate the construction in twin 4 cities and therefore, it is not proper to pass an unrestrictive injunction against it. Hence, the suit was decreed by granting perpetual injunction restraining the defendant Corporation, its employees, subordinates from interfering with the construction in the suit schedule property so far as they are in accordance with the submitted plan and provisions of the HMC Act and building byelaws.
Learned counsel for the petitioner submits that by virtue of the judgment and decree, the respondent corporation is precluded from interfering with the petitioner's possession with regard to the building or the construction and they have failed to prefer an Appeal against the said decree and judgment. He relied on a judgment of the Apex Court in Sree Madana Gopalaswami Varu of Ballipadu rep. by the Executive Officer R. Ramanujayya v. Vanga Padmaraju1, wherein, in paragraph 4, it is held as under:
" The next contention that falls to be noticed is that the rule of res judicata is not available to the plaintiff who has obtained only an exparte decree. I do not think this contention can succeed. An exparte decree is as much a decree on merits as a decree obtained after consent. The definition of "decree" in section (2) C.P.C. equally comprehends both these classes of decrees. There is nothing in Section 11 C.P.C. which renders it inapplicable to exparte decrees. Reliance has been placed by the learned counsel for the respondents on the words "heard and finally decided"1
19634 SCC Online AP 173 5 occurring in Section 11 C.P.C. But these words do not seem to be of assistance to him. Where summons in the suit duly issued to the defendant, but he did not take opportunity of appearing and contesting the suit and the suit was decided against him in his absence, it cannot be said that it is not a case a "heard and decided" within the meaning of Section 11 C.P.C., vide Radhamohan v. Eliza and Hilt. A decision of a Division Bench of Bombay High Court in Baldevdas v. Mahantlal points even more strongly in the same direction. It states the law as follows.
" It is perfectly clear and by now well established that an ex parte decree can operate as res judicata because an exparte decree is a decree on merits. The Court passing the decree hears the case on merits, finally decides it and passes the decree. The only difference between an ex pate decree and a decree in invitum is that when an ex parte decree is passed, the defendant is absent; but an ex parte decree is as much on merits as a decision in invitum."
Learned counsel submits that the respondent corporation has prejudged the issue and decided that the said place is a park and issued this notice under Sections 402 and 405 of the Act without jurisdiction. Learned counsel further submits that as per the Municipal Corporation of Hyderabad (Layout) Rules, 1965, Rule 10-A stipulates that "all the roads and open spaces such as parks and play grounds earmarked in accordance with these rules in a lay out, which is approved by the Corporation shall automatically stand transferred to free of cost; and vest with the Corporation free from all encumbrances. After such vesting, the Corporation shall maintain all such open spaces or the purposes for which they have been earmarked." Learned counsel submits that this particular 6 clause has been inserted by Amendment dated 16.04.1994. Further, relying on Rule 19, it is submitted that "the roads so developed with amenities as per specifications and sites reserved for public purpose viz. park, playground shall be conveyed at his cost through a registered deed to the Corporation of works and no compensation should be claimed towards the land covered by roads, parks and playgrounds while agreeing to construct shopping centre and bus stops as per the layout."
According to the learned counsel, the first document i.e. agreement of sale is dated 17.03.1964, sale deed dated 25.09.1997 and subsequent gift settlement deed is dated 28.08.2010. He submits that the predecessor-in-title of the petitioner's husband is in possession of the property from 1967 based on an agreement of sale and he executed a sale deed in favour of petitioner's husband, thereafter by way of a gift deed executed by her husband, petitioner has become the owner of the property. Learned counsel submits that by any stretch of imagination, it cannot be held that the property belongs to the municipal corporation and it is earmarked as park as per the layout. He submits that lay out is of the year 1972. According to him, amendment to Rule 10-A is of the year 1994. He submits that there should have been a conveyance deed in favour of the Corporation. He further submits that without any of these 7 formalities, the respondent Corporation cannot prejudge the issue stating that the land is earmarked as park. Further, it is submitted that if the Association or the municipal corporation disputes the title of the petitioner, the remedy available to them is to file a suit for declaration and by way of a summary proceedings by issuing notice under Sections 402 and 405 of the Act, they cannot evict the petitioner. He submits that the petitioner's husband's vendor as well as the petitioner have been paying municipal taxes, water cess etcetera which shows their longstanding possession.
4. A counter-affidavit has been filed on behalf of the respondent Corporation. It is stated that the vendor of the petitioner has no title for gifting the said property and the petitioner has created the documents only for the purpose of grabbing the subject property which is a park meant for public purpose. Learned Standing Counsel for the Corporation Sri N. Ashok Kumar submits that though no Appeal is filed against the judgment and decree in O.S.No. 600 of 2011, it is not a suit for declaration and the Court has only considered with regard to the deemed permission and the petitioner cannot take advantage of the same. Further, it is submitted that the suit is of the year 2011 but the construction is made in 2022. Even assuming that as per the decree, the petitioner is entitled to make construction as per 8 the deemed clause, he submits that permission is valid for a period of three years and later, the period is extended up to six years. He submits that even according to the petitioner, she has made an Application seeking building permission on 04.10.2010 and the suit was decreed on 29.08.2011. According to him, even if the date of decree is to be taken into consideration i.e. 29.08.2011, three-year period will lapse by 2014. He submits that now the petitioner has started making construction in the year 2022. Learned Standing Counsel submit that Azizia Welfare Association has filed Writ Petition No. 12210 of 2022 stating that the municipality is constructing Basti Dawakhana / Urban Primary Health Centre in an open space earmarked in the layout as park. It is submitted that the said Writ Petition was disposed of by this Court with a direction to the Municipal Corporation not to use the park space for any other purpose. It is submitted that the subject property of the present Writ Petition is also part of the said park which is meant for public purpose. He submits that the respondents have already demolished the illegal construction of room, compound wall and gate in the subject property on 31.03.2022 and 13.04.2022. Thereafter, they have issued the notice under Sections 402 and 405 of the Act on 10.05.2022. It is submitted that a reply was given by the petitioner on 16.05.2022 by enclosing the interim order dated 14.05.2022 in the present 9 Writ Petition. Learned Standing Counsel submits that the petitioner has encroached the park place and got constructed the compound wall, room and gate which is not as per the alleged plan as mentioned by the petitioner in O.S.No. 600 of 2011 and the respondent officials are duty-bound to take necessary action against the said illegal construction in the subject property which is a park and meant for public purpose.
5. Along with the counter, the Corporation has also filed the layout and also the photographs to show that earlier they have demolished the structures raised by the petitioner. Learned Standing Counsel submits that by order dated 15.06.2022, this Court has issued a direction to the respondents to conduct survey by giving notice to the petitioner and file a report before this Court. It is submitted that the respondent Corporation after conducting survey, has filed a report before this Court stating that 'the petitioner is claiming title over the subject property by virtue of a registered gift deed dated 28.08.2010 vide document No. 3107 of 2010 and the gift deed was executed by the husband of the petitioner and the husband of the petitioner has no title of the property to transfer the same to the petitioner. It is also stated that they have conducted the survey on 27.06.2022 in the presence of the petitioner by taking measurements and observed that there is an open land surrendered by compound wall constructed by GHMC 10 abutting to 30' wide road and adjoining to this there is an open land behind premises bearing H.No. 10-3-15/2 and 10-3-15/3, Humayun Nagar, Hyderabad which is part and parcel of the park land surrendered by compound wall with gate constructed by the petitioner and also AC shed room has been constructed to an extent of 167 sft. Further it is noted that at site, a room is constructed towards south west corner of the open land has been demolished by the GHMC. The petitioner herein has not submitted any link documents pertaining to ownership to the respondent Corporation for verification at the time of inspection. As per the approved layout vide permit No. 38/33, dated 24.10.1972, the subject site is demarcated as open space with greenery to an extent of 2000 sq. yards out of which the petitioner herein has encroached to an extent of 292.60 sqm/ 350 sq. yards. Further, the remaining portion of the open space i.e. 1650 sq yards is being utilised for nursery by the GHMC'.
Learned Standing Counsel has also filed the photographs along with the counter in support of his contention.
6. A counter affidavit along with vacate stay petition has also been filed on behalf of the unofficial respondent. It is stated that on 18.02.2022, few people gathered in petitioner's' locality and when the 5th respondent association enquired, it has come to the knowledge of the 5th respondent association that Basti 11 Dawakhana / Urban Primary Health Centre is being constructed in the premises of the municipal park. It is stated that the unofficial respondent has filed Writ Petition and initially status quo order was granted and later the said Writ Petition was disposed of. It is stated that again on 20.03.2022, one Mohammed Abdul Hameed claiming to be husband of the petitioner came to the subject municipal park along with 20 to 30 persons including unsocial elements and constructed a wall within the park and fixed a gate by engaging about 25-30 labourers. It is submitted that when the people have questioned the illegal activity, she filed Writ Petition No. 12154 of 2022 and obtained orders from this Court under the guise of the said orders, they have encroached upon the public park and without obtaining permission, constructed the compound wall and a gate within the premises of municipal park. It is submitted that the unofficial respondent has approached the respondent Corporation and gave a representation to Respondents No.2 to 4 dated 24.03.2022. It is submitted that in spite of order of status quo passed in Writ Petition No. 12210 of 2022, when the petitioner is making construction, the Corporation has not taken any action on the petitioner. It is submitted that the title of the petitioner itself is at doubt as the petitioner is relying on the gift deed executed by her husband and no link documents are filed. Further, it is submitted that according to the petitioner, her 12 property is bearing H.No. 10-3-14/B/13, having PTI No. 1071001408 stands in the name of one Thamveer Dass Hot Chand in the municipal records. According to the petitioner, her husband purchased the disputed plot from Mirza Yaseen Ali on 25.09.1997 but interestingly neither her husband nor his vendor name is mutated in the municipal records. It is also submitted that the averment that water connection was obtained in respect of property bearing CAN No. 0321/45366 and water consumption charges are being paid by the petitioner is false, baseless and a wrong statement. On this ground alone, the Writ Petition is liable to be dismissed with exemplary costs since the document ie. Ex.P3 is having CAN No. 032145366 which is customer ledger printed on 15.10.2015 and as per the said document, consumer name is Tanwani Das Hot Chand and premises No. 10-3-14/B/13 and date of connection is 17.07.1985 and connection status is shown as 'meter disconnected'. Learned counsel submits that the petitioner could not make out a case seeking interference of this Court under Article 226 of the Constitution of India.
7. In reply, learned counsel for the petitioner submits that the property referred to by the unofficial respondent is not the property which is owned by the petitioner and both are distinct and separate. It is submitted that the petitioner has not made any construction recently. He submits that when the respondent 13 barged into property on 26.02.2022, demolished the room, gate and compound wall, then the petitioner filed Writ Petition No. 12154 of 2022.
8. Having heard the learned counsel on either side, perused the entire material on record. The argument of the learned counsel for the petitioner is that by judgment and decree passed by the civil Court in O.S.No. 600 of 2011, the Court has incidentally gone into the petitioner's title to the property and held that the petitioner is in possession of the property and the respondents failed to file any Appeal against the said judgment and decree. Having failed to question the said judgment and decree, the respondents cannot issue such a notice under Sections 402 and 405 of the Act and the same is without jurisdiction. Learned counsel has drawn attention of this Court to the judgment and decree passed by the Court. In the entire judgment and decree, there was no reference with regard to prima facie title to the property or with regard to possession of the petitioner. The only issue that was considered by the Court is with regard to the Application made by the petitioner seeking building permission and the defendants have not filed written statement under Section 437 of the Act they have not passed any order rejecting the Application of the petitioner. When once they have not rejected it, within thirty days from the date of application, it amounts to 14 deemed provision. As such the petitioner is entitled to make construction and further the respondents cannot interfere with the construction. While passing the said judgment and decree, the Court was conscious of the fact that it is the duty of the municipal corporation to regulate and mandate the construction in twin cities and therefore, it is not proper to pass unrestrictive injunction. Then the Court had granted injunction restraining the Corporation from interfering with the construction so far as they are in accordance with the plan and the provisions of the Act and building byelaws. The earlier round of WPs. that are filed and the photographs which shows that the entire land is open and when a Writ Petition has come up before this Court stating that some constructions are taking place in the said park land, and the Municipal Corporation is constructing a Basti Dawakhana / Urban Primary Health Centre initially, this Court has granted the order of status quo. Thereafter, basing on the submission made on behalf of the municipal corporation that it is an open land and they are only cleaning the said land and except that they are not making any construction, the Writ Petition was disposed of on 30.03.2022. Basing on that, this Court can safely conclude that there was no construction as on that date.
9. Now as far as the submission of the learned counsel with regard to the judgment and decree, this Court is of the 15 considered opinion that the Court below has not dealt with either the petitioner's right to property, title or the petitioner's possession, but what fell for consideration is only with regard to construction activity. If that has to be taken into consideration, any permission that is granted, the construction has to be made within three years from the date of permission and now, it is six years. The petitioner made an Application on 29.08.2011 and if three years have to be calculated, by 28.04.2014, the said period lapsed. In the order of the civil Court, it has specifically observed that the petitioner has to make the construction as per the provisions of the HMC Act. It appears that the petitioner has started construction in the month of March 2022. Learned counsel for the petitioner denied the same. The petitioner has not filed a scrap of paper before this Court, the plan she has annexed to the application and presented before the respondents. The photographs filed before this Court show that it is an open land and on the wall of it, municipal corporation name is found. When a person encroaches a public road or public property, no prior notice is required under Section 405 of the Act. Even in the survey report, it is mentioned that except a gift deed, the petitioner has not filed any other document. If the petitioner is asserting that she is the owner of the property, when the corporation basing on a layout of 1972 is stating that it is earmarked for park and when 16 survey was conducted, the petitioner ought to have submitted the link document /relevant document and the petitioner has failed to submit such documents. Though it is stated that petitioner's husband has a registered sale deed, such document is not filed before this Court and in the gift deed also, there is no mention about the same.
10. In the course of arguments, learned counsel for the petitioner submitted that the source of title to the petitioner's husband who has executed a gift deed, it is submitted, from the original owner the vendor of petitioner's husband had an agreement of sale with possession, he executed a sale deed in favour of the petitioner's husband and he in turn has executed the gift deed. It is submitted that as per Section 53-A of the Specific Relief Act, he can protect his possession and long standing possession cannot turn into encroachment. The petitioner, who has come to the Court saying that she is the owner of the property, has to place the relevant documents on record. Except relying on the judgment and decree passed in O.S.No. 600 of 2011 and the gift deed, there is no other document to show the ownership of the petitioner. Whereas the GHMC relying on the layout of 1972 has come up before this Court saying that the said land is earmarked for park. By conducting survey or by any summary procedure, respondent corporation cannot decide the issues that are raised by 17 the petitioner. Further, this Court is not convinced with the material placed before the Court with regard to the petitioner's possession or ownership. Further, the judgment and decree passed by the civil Court in O.S.No. 600 of 2011 cannot preclude the respondents from issuing the notice impugned. Hence, this Court finds no irregularity in issuing the notice and the respondent Corporation has jurisdiction to issue the said notice.
11. The Writ Petition is accordingly, dismissed. There shall be no order as to costs.
12. The Miscellaneous Applications, if any shall stand closed.
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LALITHA KANNEGANTI, J 23rd August 2022 Issue CC tomorrow.
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