Telangana High Court
Battula Usha vs The Principal Secretary on 12 February, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.6352 of 2023
ORDER:
This Writ Petition is filed with the following prayer:
"For the reasons stated in the accompanying affidavit, the petitioner prays the Hon'ble Court may be pleased to issue Writ, order or direction, more particularly one in the nature of Writ of mandamus, declaring the action of the Respondent Authorities more specifically Respondent Nos.3 and 4 Authorities in not demolishing the unauthorized constructions made without obtaining any building permission from the authorities over the petition scheduled properties to an extent of 150 sq. yds. in Plot No.40/Part and another 150sq.yds. i.e., in Plot No.39 100 sq. yds. and Plot No.40/Part 50 sq.yds. both are adjacent plots total admeasuring 300 sq.yds situated in Sy.No.55/అఆ At Kondapur Village, Serilingampally Mandal R.R.District, as illegal, arbitrary, highhanded and violation of Article 14 of the Constitution of India and consequently direct the Respondent authorities more specifically Respondent Nos.3 and 4 to demolish the unauthorized constructions made over the petition scheduled properties to an extent of 150 sq.yds. in Plot No.40/Part and another 150 sq.yds., i.e., in Plot No.39 100 sq. yds. and Plot No.40/Part 50 sq.yds. both are adjacent plots total admeasuring 300 sq.yds. situated in Sy.No.55/అఆ At Kondapur Village, Serilingampally Mandal, R.R. District, and pass such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case."
2. Heard learned counsel for the petitioner, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent No.1, Sri M.A.K.Mukheed, learned Standing Counsel, 2 appearing for respondent Nos.2 to 4 and Sri Prakash Chakravarthy, learned counsel appearing for respondent No.6 and perused the record.
3. Petitioner claims to be an agreement holder in respect of Plot Nos.39/Part and 40 admeasuring 100 and 200 square yards, totally admeasuring 300 square yards, in Sy.No.55/అఆ At Kondapur Village, Serilingampally Mandal, R.R.District, being possessed of them under unregistered agreement of sale from one B.Subba Laxmi, who is none other than the petitioner's mother-in-law; and that since, the said B.Subba Laxmi failed to execute registered sale deed, the petitioner had approached the Civil Court by filing a suit for specific performance, vide O.S.No.1465 of 2017 on the file of VI Additional District and Sessions Judge-cum-VI Additional Metropolitan Magistrate, Sessions Judge-cum- Family Court, Ranga Reddy District at Kukatpally, and since the civil suit filed is pending adjudication, had approached the respondents-authorities and submitted a representation claiming that the unofficial respondents, though having knowledge of pendency of the civil suit, are making unauthorized construction, without obtaining any valid permission from the 3rd respondent authority and without leaving required setbacks.
4. It is the further case of the petitioner that though she had approached the respondents-authorities and submitted application on 20.02.2023 under the Right to Information Act, 2005 (for short, 'the RTI 3 Act'), seeking a copy of the building permission and plan granted to the unofficial respondents, the petitioner was informed by the respondents- authorities, in particular the 3rd respondent authority, that the information as sought for cannot be given and that they were contemplating to issue building permission to the unofficial respondents within two days for making construction in the schedule property, and thus, the petitioner had invoked the jurisdiction of this Court under Article 226 of the Constitution of India.
5. It is the further case of the petitioner that though the authorities by the counter-affidavit claim to have issued a show cause notice dt.04.03.2023 to respondent Nos.5 and 6 by noting therein that the boundaries in respect of which the building permission had been sought, do not match with the documents, the action of the respondents- authorities in allowing the construction to proceed with is in violation of provisions of the Greater Hyderabad Municipal Corporations Act, 1955.
6. Counter-affidavit on behalf of respondent Nos.2 to 4 is filed on 21.06.2023 and a counter affidavit on behalf of respondent Nos.5 and 6 is filed on 25.07.2023.
7. Respondent Nos.2 to 4 by the counter affidavit filed, while denying the writ averments, have stated that the unofficial respondents have obtained building permission under the TS-bPASS Act, 2020, vide 4 proceedings dt.01.02.2023. The respondents by the counter affidavit have further stated that on receiving the complaint from the petitioner dt.20.02.2023, the authorities have initially issued a notice dt.04.03.2023 to which the unofficial respondents had submitted their explanation dt.16.03.2023.
8. The respondents by the counter-affidavit have contended that the unofficial respondents on submission of the explanation to the show cause notice dt.04.03.2023, had approached this Court by filing W.P.No.10878 of 2023 and this Court by order dt.20.04.2023 had directed the respondents- authorities to consider the explanation submitted by the petitioners, i.e. unofficial respondents herein, to the show cause notice dt.04.03.2023 by taking note of the contents of the said explanation and pass appropriate orders thereon in accordance with law and communicate the same to the petitioners therein within a period of four (04) weeks from the date of receipt of a copy of the order.
9. The respondents further contend that on this Court passing the above said order, the respondents-authorities have granted an opportunity of hearing to the unofficial respondents on 12.06.2023 and on the said day, the authorities have issued intimation letter to the unofficial respondents not to make further construction, as the application submitted by the unofficial respondents cannot be considered due to pendency of W.P.No.6352 of 2023 filed by the petitioner herein. By 5 placing the aforesaid intimation, it is stated that the application filed by the unofficial respondents would be considered soon after the disposal of W.P.No.6352 of 2023 by initiating further necessary action in the matter.
10. Learned Standing Counsel further submits that since, the authorities are only required to see prima facie title and possession while granting building permission, the authorities have accorded permission on 01.02.2023 by taking into consideration the sale deed executed in favour of the unofficial respondents by Smt.Sarada Devi Adusumilli, the sister-in- law of the petitioner, who is claiming the subject property under a registered gift settlement deed dt.25.02.2013 and that since, the petitioner is only claiming under an unregistered agreement of sale, the same could not be considered, more so, the unofficial respondents having obtained regularization of the subject plot on the basis of the registered sale deed in their favour under the Regularization Scheme introduced by the Government.
11. The unofficial respondent Nos.5 and 6 by their counter-affidavit filed have contended that the present writ petition as filed is not maintainable for the reason that the petitioner is only claiming under an unregistered agreement of sale/gift deed stated to have been executed by the mother-in-law of the petitioner, while title of the unofficial respondents is confirmed by way of a registered sale deed.
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12. By the said counter-affidavit, it is further contended that since, the petitioner has based her title to the subject property under unregistered agreement of sale, the claim of the petitioner cannot be accepted.
13. The unofficial respondents further contend that when one M.Satyanarayana Goud sought to lay a claim to the subject property, the unofficial respondents had filed a suit, vide O.S.No.2794 of 2019 on the file of the VII Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, and that in respect of the suit schedule A and B properties, which have been acquired by them under two sale deeds dt.29.06.2019, had obtained judgment and decree dt.19.01.2021, in their favour.
14. The unofficial respondents thus contend that they having purchased the subject property under registered sale deed, the claim of the petitioner is only on account of the appreciation in value of the property, and lacks bona fides.
15. I have taken note of the respective contentions urged.
16. Though the petitioner had contended that the construction being made by the unofficial respondents to be without permission, it is now on record that the unofficial respondents had got sale deeds executed in their favour on 29.06.2019 and had obtained building permission for construction from the respondents-authorities on 01.02.2023. 7
17. Though the respondents-authorities on receiving the complaint from the petitioner on 20.02.2023 had issued a notice dt.04.03.2023, to which the unofficial respondents have submitted an explanation on 16.03.2023, and thereafter, in compliance with the direction of this Court in W.P.No.10878 of 2023, vide order dt.20.04.2023, the respondents- authorities had conducted a hearing on 12.06.2023, however, had passed an order informing the unofficial respondents; that the building permission application submitted by them cannot be considered in view of the pendency of the present Writ Petition and that necessary action would be taken after the disposal of the same.
18. Though the respondents-authorities, while considering the application of the petitioner, had taken note of the fact of the execution of registered sale deeds in favour of the unofficial respondents and also the LRS being granted in their favour, on account of the pendency of the present Writ Petition, directed the unofficial respondents not to proceed with the construction till the disposal of the Writ Petition.
19. Despite the petitioner claiming title to the subject property on the basis of the unregistered agreement of sale stated to have been executed by her mother-in-law, it is not in dispute that the executant of the said agreement herself had executed registered gift settlement deed in favour of the daughter who in turn sold the property to unofficial respondents and executed sale deeds in their favour.
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20. It is settled position of law that merely on the basis of agreement of sale, no interest can be claimed - (see M unisham appa v/ s. M .Ram a Reddy 1 ).
21. Further, it is also settled position of law that if a registered sale deed is presented as against an agreement of sale, it is registered sale deed that would have precedence over the unregistered agreement of sale. Thus, the action of the respondents-authorities initially in issuing permission on 01.02.2023 and thereafter, directing the unofficial respondents not to proceed with the construction till the present Writ Petition is decided, in the considered view of this Court cannot be accepted as a valid action, as it is for the authorities to grant or reject permission, based on the prima facie satisfaction as to the title and possession, but, could not have kept the same pending.
22. Though the petitioner claims to have filed a suit seeking specific performance, inasmuch as no order has been passed thereon as of today, the title of the unofficial respondents cannot be said to be jeopardized for them to deal with the property. If only the petitioner is successful in the suit instituted by her against her mother-in-law, including the unofficial respondents, seeking for execution of the specific performance, then only the petitioner can lay any claim to the subject property and not before. 1 2023 SCC Online SC 1701 9 Thus, considered from any angle, the claim of the petitioner with regard to the unofficial respondents making construction without any valid permission, cannot be accepted as a valid claim for being it to be countenanced.
23. Accordingly, the Writ Petition is devoid of any merit and it is accordingly dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only) payable to the Telangana High Court Legal Services Committee, High Court Buildings, Hyderabad, within four (04) weeks from the date of receipt of a copy of this order.
24. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
__________________ T. VINOD KUMAR, J Date:12.02.2024 GJ