THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.705 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. K.Gopal, learned counsel for the
appellants; Ms. Borra Lakshmi Kanakavalli, learned
Assistant Government Pleader for Municipal
Administration and Urban Development Department
appearing for respondent No.3; Mr. M.A.K.Mukheed,
learned counsel appearing for respondents No.4 to 6; and Dr. J.Vijaya Laxmi, learned Government Pleader appearing for respondent No.7.
2. This writ appeal is directed against the order dated 01.09.2022 passed by the learned Single Judge disposing of W.P.No.38242 of 2017 filed by respondents No.1 and 2 as the writ petitioners.
3. Respondents No.1 and 2 had filed the related writ petition for quashing of building permission dated 05.09.2015 issued by respondents No.4 to 6 in favour of 2 the appellants on the ground that the building permission was obtained on the basis of fake urban land ceiling clearance certificate. Writ petitioners further sought for demolition of the constructions made on the basis of such building permission.
4. Relevant facts or rather the admitted facts culled out by the learned Single Judge as is discernible from the order dated 01.09.2022 are as follows:
"6. The admitted facts are that the petitioners have filed a suit i.e. O.S.No.619 of 2015 on the file of XIII District Judge, Ranga Reddy District at L.B.Nagar and initially an interim injunction was granted on 27.06.2015 directing the unofficial respondents not to create any third party rights in respect of the suit schedule property. The permission was granted in favour of the unofficial respondents on 05.09.2015. Thereafter, the unofficial respondents have entered appearance in the said suit on 05.11.2015."
5. Though learned counsel for the writ petitioners contended that interim injunction granted on 27.06.2015 was made absolute, learned Single Judge noted that no materials were placed before the Court in this regard. On the contrary, learned counsel representing Greater Hyderabad Municipal Corporation submitted that the interim injunction was not extended. Learned Single 3 Judge concluded that on the date of obtaining building permission appellants had not entered appearance in the suit (O.S.No.619 of 2015) and therefore they were not aware of the pending proceeding. Hence, they proceeded with the construction. On the allegation that the building permission was obtained by furnishing incorrect information, learned Single Judge found no substance in the allegation. On the other hand, it was recorded by the learned Single Judge that though the civil suit is pending, appellants have completed major portion of the construction. Thereafter, the following order came to be passed by the learned Single Judge.
"10. In the facts and circumstances, this court deems it appropriate to permit the unofficial respondents to complete the construction activity. The unofficial respondents except completing the construction shall not lease out or create any third party rights till the outcome of the suit. The respondent corporation shall also not issue occupancy certificate to the said building pending orders of the civil court and till the outcome of the suit or till the said interim orders are vacated by the civil court."
6. When the learned Single Judge recorded that there was no suppression or misfurnishing of information by the appellants while obtaining building permission and that 4 there was nothing on record to show that injunction order of the civil Court being in force, we are of the view that such blanket restriction imposed on the appellants is not justified.
7. Learned counsel for the appellants has made a statement before the Court that appellants would not create any third party rights in the building being constructed. We record the said statement.
8. That portion of the order of the learned Single Judge directing Greater Hyderabad Municipal Corporation not to issue occupancy certificate to the building being constructed during pendency of the civil suit, in our view, is uncalled for and unwarranted. At this stage we may mention that writ petitioners could very well have produced the injunction order if the same was indeed extended. Instead of approaching the civil Court for extension of injunction or availing the remedy in the event such prayer was rejected, the related writ petition came to be filed.
9. That being the position, order dated 01.09.2022 passed in W.P.No.38242 of 2017, more particularly the 5 order contained in paragraph 10 thereof, is modified to the extent that appellants may complete the construction of the building based on the building permission dated 05.09.2015, but shall not create any third party rights therein till outcome of the suit. The remaining portion of the order contained in paragraph 10 is accordingly set aside.
10. Writ appeal is disposed of.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 28.10.2022 vs