Telangana High Court
Kachakayala Mallesham vs The State Of Telangana on 27 December, 2023
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.34669 of 2023
ORDER:
This Writ Petition has been filed for issuance of Writ of Mandamus declaring the action of respondents No.3 & 6, more particularly the 3rd respondent, in not considering the representation submitted by the petitioner, dt.24.05.2023 and 09.10.2023, bringing to the notice of the 3rd respondent the unauthorized and illegal construction work being carried by respondents No.7 & 8 in plot admeasuring 242 sq. yards in survey No.537/A, 538/A, 540/A and 541/A situated at Karimnagar Revenue Village of Karimnagar Mandal and District, forming part of 663 sq. yards situated in Laxminagar Locality near Old Power House, Karimnagar Revenue Mandal, belonging to the petitioner, as being illegal, arbitrary, oppose to principles of natural justice and violation of Article 300A of the Constitution of India and in abdication of powers conferred under the Telangana Municipalities Act, 2019 (for short 'the Act').
2. Heard learned counsel for the petitioner, learned Government Pleader for Municipal Administration & Urban Development Department appearing on behalf of respondents No.1 & 4, Sri K.Prabhakar Rao, learned Standing Counsel appearing on behalf of respondents No.3 & 5, learned Government Pleader for 2 Home appearing on behalf of respondent No.6, and with the consent of the counsel appearing for the parties, the Writ Petition is taken up for hearing and disposal at admission stage.
3. Having regard to the manner of disposal of the Writ Petition at the admission stage, and the lis involved in this Writ Petition, this Court is of the view that notice to unofficial respondents No.7 & 8 is not necessary for adjudication of the present Writ Petition.
4. Petitioner contends that originally land in Survey Nos.537/A, 538/A, 540/A and 541/A situated at Karimnagar Revenue Village of Karimnagar Mandal and District was jointly purchased by petitioner's father and others; that the said land was partitioned and on account of the settlement arrived at between the petitioner's father and joint owners, the petitioner's father was allotted plots bearing No.1, 18, 19, 20, 21, 22, 25 to 28; that the petitioner's father had sold some of the said plots for meeting his necessities; that, thereafter, the petitioner's father executed a Gift Settlement Deed, dt.15.03.2015, in favour of the petitioner in respect of plots bearing Nos.26 to 28 in all admeasuring 663 sq. yards.; and thus, the petitioner has become the absolute owner and is in possession of land admeasuring 663 sq. yards forming part of survey No.537/A, 538/A, 540/A and 541/A situated at Karimnagar Revenue Village of Karimnagar Mandal and District. 3
5. Petitioner further contends that the unofficial respondents without obtaining any permission for construction have started digging trenches in the aforementioned land of the petitioner, whereupon the petitioner had approached the 3rd respondent authority and submitted representation,dt.24.05.2023 and 09.10.2023 bringing to the notice of the said authority the unauthorized and illegal construction made/being made by the unofficial respondents; and that in spite of the petitioner submitted the aforesaid representations, no action is taken. Hence, the Writ Petition.
6. Per contra, learned Standing Counsel appearing on behalf of the 3rd respondent has placed before this Court, written instructions, dt.21.12.2023, under the signature of the Commissioner of the 3rd respondent-Municipality. By the aforesaid written instructions, it is stated that the 7th respondent had initially obtained certificate of registration under Section 174(1) of the Act on 29.12.2022 for construction of a building; and that subsequently, the said certificate of registration obtained by the 7th respondent was revoked.
7. Learned Standing Counsel by placing reliance on the aforesaid written instructions further submits that there have been disputes with regard to the subject property being claimed by the 4 petitioner; that the unofficial respondent No.8 had submitted a copy of the judgment in a civil suit filed by the petitioner herein, vide O.S.No.77 of 2009, wherein it has been held that the petitioner, who had instituted the aforesaid suit is not entitled for any relief, much less the equitable relief of injunction, and the suit instituted by the petitioner has been dismissed; and that therefore, the claim of the petitioner that the respondents No.7 and 8 have encroached into his property and are digging trenches, without any permission, cannot be looked into by the authorities.
8. I have taken note of the respective contentions urged.
9. Though the 3rd respondent, by the written instructions as furnished to the learned Standing Counsel, has stated that initially 7th respondent had obtained the certificate of registration on 29.12.2022, for construction of a building under Section 174(1) of the Act, and thereafter, the said certificate was revoked, the date on which the said certificate of registration was revoked, is not mentioned in the said written instructions.
10. Further, the 3rd respondent-authority, who is required to ensure that no construction is made without obtaining any valid permission from the said authority, by its written instructions, speaks about the title dispute between the petitioner and the 8th respondent, instead of informing the Court as to whether the 5 construction being made by the 8th respondent is by obtaining a valid permission/sanction or otherwise.
11. This Court in K.Pavan Raj v. The Municipal Corporation of Hyderabad 1 (following the decision of another Division Bench of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad 2) had held that the authorities while granting building permission cannot adjudicate title/boundary dispute and are required to see prima facie title and possession. However, on account of dismissal of the suit instituted by the petitioner would not make the construction being carried out without obtaining permission/sanction, a valid construction.
12. Thus, the action of the 3rd respondent in furnishing the written instructions in the above manner without addressing the issue concerned, in the considered view of this Court is highly deplorable and cannot to be countenanced.
13. Further, the non-mention in the written instructions as to the construction being made by respondents No.7 & 8 is under a valid permission/sanction from the authorities concerned or otherwise, in the considered view of this Court would only go to show that the said construction is being made without any 1 2008(1) ALD 792 2 MANU/AP/0361/2001=2001(3) ALD 600 6 permission/sanction, requiring action to be initiated by the 3rd respondent-authority.
14. Since the petitioner had submitted representation on 24.05.2023 and 09.10.2023 with regard to the alleged illegal constructions being made by the unofficial respondents No.7 & 8 without any valid permission and that it is not shown to this Court by the 3rd respondent that the said construction made by the unofficial respondents No.7 & 8 is by obtaining any valid permission/sanction from the authorities concerned under the provisions of TS-bPASS Act, 2020 read with the Telangana Municipalities Act, 2019, this Court is of the view that the 3rd respondent-authority is to be directed to take necessary action with regard to the unauthorized and illegal construction made/being made by the unofficial respondents No.7 & 8 by considering the representations submitted by the petitioner as noted above, within a period of two (02) weeks from the date of receipt of a copy of this order, by following due process of law.
15. Subject to the above directions, this Writ Petition is disposed of. No order as to costs.
16. It is made clear that this Court has not expressed any opinion on the merits of the matter.
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17. Consequently, miscellaneous petitions, if any, pending shall stand closed.
_____________________ T. VINOD KUMAR, J 27th December, 2023.
gra 8 THE HON'BLE SRI JUSTICE T. VINOD KUMAR Writ Petition No.34669 of 2023 Dt.27.12.2023 gra