Telangana High Court
Venkata Sumalatha vs State Of Telangana on 6 June, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.13988 OF 2024
ORDER:
This Writ Petition is filed for issuance of a writ of mandamus to declare the action of the respondent Nos.2 to 4 in demolishing the compound wall and in interfering and attempting to demolish the building on the subject property without issuing any notice or affording an opportunity for hearing and without following any procedure contemplated under law, as being illegal, arbitrary and unconstitutional and with a consequential direction to respondents not to interfere with peaceful possession and enjoyment of the petitioner with the subject property without following due process of law.
2. Heard learned Counsel for the petitioner, learned Government Pleader for Municipal Administration & Urban Development appearing for respondent No.1, Sri M.A.K. Mukheed, learned Standing Counsel appearing on behalf of respondent Nos.2 and 3, Sri V. Narasimha Goud, learned Standing Counsel appearing on behalf of respondent No.4, and with the consent of parties, the Writ Petition is taken up for hearing and disposal at the stage of admission. 2
3. The case of the petitioner, in brief, is that she is the absolute owner and possessor of plot No.573/C, admeasuring 187 square yards in Sy. No.150, Ward No.11, situated at Hafeezpet village, Serilingampally Mandal, Ranga Reddy District having purchased the same under registered sale deed dated 06.07.2009 from her vendor, who in turn had purchased the same under registered sale deed dated 07.07.2005.
4. Petitioner further contends that originally the land admeasuring Ac.20.18 gts. in Sy. No.150 of Hafeezpet village belonged to M/s. The Deephi Sree Co-operative House Building Society and the said society had made the same into layout of plots and the subject plot has been sold to Smt. K. Radhika, under registered sale deed dated 05.11.2023 who in turn sold the same to the petitioner vendor from whom the petitioner has purchased.
5. Petitioner further contends that the petitioner's vendor Mr. N. Samrat on purchasing the plot under registered sale deed dated 07.07.2005 had obtained building permission from the respondent Municipal authorities, vide building permission dated 12.11.2007 for construction of residential building consisting of ground + one upper floor with a constructed area 3 of 51.08 square meters each in the ground floor and first floor and made construction.
6. Petitioner further contends that the subject property thereafter was purchased by the petitioner from the said Sri N. Samrat and made further construction of one additional floor thereon.
7. Petitioner further contends that since, the date of purchase of the aforesaid subject property by the petitioner in the year 2009, the petitioner has been in possession and enjoyment of the same.
8. Petitioner further contends that the 4th respondent without issuing any notice had resorted to demolition of the compound wall of the petitioner's property on 29.05.2024 by deploying its men and machinery in a high handed manner.
9. Petitioner further contends that on purchasing the aforesaid property, she had obtained water and electricity connections for the said property which has also been assigned door number by the 2nd respondent authority and, as such, the action of the 4th respondent in demolishing the compound wall, without putting the petitioner on notice and without following due process of law is highly arbitrary and illegal. 4
10. Per contra, Sri V. Narasimha Goud, learned Standing Counsel appearing on behalf of respondent No.4 submits that the subject property being claimed by the petitioner as plot No.573/C, admeasuring 187 square yards as falling in Sy. No.150, Ward No.11 of Hafeezpet village, Serilingampally Mandal, Ranga Reddy District, actually falls in Sy. Nos.100 and 101 of Miyapur village; and that the said land is a Government land as per records.
11. Learned Standing Counsel further submits that since, the petitioner had made construction by encroaching into the land of the 4th respondent claiming the same as falling in Sy. No.150, the authorities have issued notice in Form-A dated 18.05.2024 to show cause within ten days from the date of receipt of notice as to why the petitioner should not be evicted therefrom.
12. Learned Standing Counsel further submits that the aforesaid notice on being refused to be received by the petitioner was served by affixture on 20.05.2024.
13. Learned Standing Counsel further submits that since, the authorities did not receive any reply to the said notice issued in Form-A, the authorities are proceeding with the demolition work, however have only demolished the part of the compound 5 wall of the subject property, since the petitioner had approached this Court by filing the Writ Petition thereon.
14. Learned Standing Counsel appearing on behalf of respondent Nos.2 and 3 on the other hand submits that since, the sale deed under which the petitioner had purchased the subject property reflects of she having purchased open plot after dismantling the erecting house, fresh permission for construction has to be obtained by the petitioner.
15. Learned Standing Counsel further submits that since, it has now been brought to the notice of the authorities that the said construction made by the petitioner to be unauthorized and illegal construction by encroaching into land in Sy. No.100 and 101 of Miyapur village, while claiming the same as in Sy. No.150 of Hafeezpet village, the authorities would look into the matter and take further action.
16. Learned Standing Counsel further submits that in so far as the role of the Municipal authorities while granting building permission is concerned, the respondent authorities to consider the prima facie title and possession and cannot adjudicate the civil dispute.
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17. Learned Standing Counsel further submits that in the event of the authorities receiving any communication from the 4th respondent authority or from the 1st respondent authority as to the subject plot in respect of which the construction has been made by the petitioner, the authorities would cause verification as to whether any permission exists or not and thereafter take further action in accordance with law.
18. I have taken note of the respective contentions urged.
19. Though the petitioner claims to have purchased an existing house from his vendor Sri. N. Samrat, a perusal of the sale deed and the stamp duty and registration charges paid thereon would indicate that the petitioner had purchased the dismantled house bearing Municipal No.5-573/C of plot No.573/C in Sy. No.150, admeasuring 187 square yards situated at "Deepthi Sree Nagar", Hafeezpet village, Serilingampaly Mandal, GHMC Serilingampally under the registered sale deed dated 06.07.2009.
20. Though the petitioner had claimed that the vendor had obtained building permission from the respondent authority, vide proceedings dated 12.11.2007 for construction of building consisting of ground + one upper floor, the documents annexed 7 to the writ petitioner indicates that the existing building consists of ground + two upper floors. Further, since, the petitioner had purchased the property with dismantled house in the shape of open plot, in the considered view of this Court, the petitioner cannot claim of having purchased the plot with the building therein.
21. Further, in the absence of petitioner showing to this Court of she having obtained any building permission from the respondent authorities for construction of the existing building consisting of ground + two floors, this Court is of the view that the said building being claimed by the petitioner as existing from the date of her purchase of the subject property cannot be held to be valid claim. However, it is to be noted that the respondent Nos.2 and 3 admittedly have not initiated any action as of date.
22. Further, the present Writ Petition is filed alleging that the 4th respondent has resorted to demolition of the compound wall without issuing any notice to the petitioner. Though the learned Standing Counsel appearing on behalf of the 4th respondent has placed before this Court a copy of the notice in Form-A dated 18.05.2024 and had stated that the aforesaid notice has been served by affixture; and that since the petitioner is an 8 encroacher on to the land in Sy. Nos.100 and 101 of Miyapur village, he has refused to receive the same. However, a perusal of the copy of the notice as placed before this Court does not indicate that the authorities have followed the procedure prescribed for serving notice by affixture which requires the authentication of affixture in the presence of respectable persons of the area. Further, it is also to be noted this Court in numerous cases had held that the mode of service by affixture would have to be resorted to only as a last resort after the authorities exhausting the steps for effecting service of notice either in person or by registered post and cannot resort to service by affixture as the first mode of service. Since, it is not shown to this Court that the said service of notice by the authorities is by following procedure prescribed for affixture, the claim of the 4th respondent of the said notice having been served on the petitioner by affixture and her failure to submit explanation within 10 days time cannot be accepted as a valid defence for sustaining the action of the respondent authority.
23. It is trite law that even an encroacher/trespasser is required to be evicted by following due process of law. A Division Bench of this Court (to which I was a member), in M/s.Visweswara Infrastructure Pvt. Ltd. And others v. The 9 Telangana State Industrial Infrastructure Corporation and others 1 following the dicta laid down by the Hon'ble Supreme Court in Yeshwant Singh v. Jagdish Singh 2 wherein the Apex Court held that - "person in possession cannot be dispossessed except in accordance with law." It further held:
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court".
24. Since in the facts of the case, even assuming that the petitioner is an encroacher in the land belonging to the 4th respondent in Sy. Nos.100 and 101 of Miyapur village claiming it to be forming part of the land in Sy. No.150 of Hafeezpet village, the authorities are required to follow due process of law i.e., issuing notice, considering the explanation if any submitted before taking any further action in the matter. As this Court has now held that the subject notice in Form-A as not having been served on the petitioner in the manner known to law, this Court is of the further view that the 4th respondent authority cannot resort to any demolition of the subject property of the petitioner until and unless the authorities follow due process of law.
1 Judgment dt.24-08-2023 in W.A.No.697 of 2023 2 AIR 1968 SC 620 10
25. As the endorsement made on the notice in Form-A states that the petitioner has rejected/denied to take notice whereby the authorities have resorted to serving the notice by affixture, however, as the husband of the petitioner who is present in the Court is willing to accept the notice in Form-A dated 18.05.2004 to enabling him to file an explanation thereto within the period indicated therein, and accordingly, accepted a copy of notice from the learned Standing Counsel in the Court today.
26. Since the notice as issued by the 4th respondent is being served on the petitioner today and a time of ten days is provided thereunder, this Court is of the view that the respondent authorities cannot resort to further demolition of the subject property of the petitioner till the petitioner offers her explanation to the same and the authorities taking further action by considering the explanation if any submitted by the petitioner.
27. Insofar as the claim of the petitioner of the subject property being situated in Sy. No.150 as against the claim of the 4th respondent that the subject property forms part of Sy. Nos.100 and 101 of Miyapur village, this Court is of the view that the said issue can be resolved only by localization of the subject property by getting the same surveyed by the authorities 11 of Survey and Land Records. Since, the 4th respondent authority is claiming the petitioner having encroached into the land belonging to the 4th respondent in Sy. Nos.100 and 101 of Miyapur village, claiming it to be forming part of Sy. No.150 of Hafeezpet village, this Court is of the view that the 4th respondent authority shall take steps to get the subject land surveyed with the concerned authorities within a period of three months from today, after putting the petitioner and all other concerned parties on notice. Upon the said survey as directed by this Court is undertaken, if it is found that the subject property of the petitioner is located in Sy. No.150 of Hafeezspet village and not in Sy. No.100 and 101 of Miyapur village, the respondent authority shall be liable for damages for the demolition that the authorities have resorted to on 29.05.2024. On the contrary, if it is found the subject land to be Sy. No.100 and 101 of Miyapur village, the 4th respondent shall take steps to evict the encroachers like petitioner by following due process of law.
28. Subject to the above observation and direction, the Writ Petition is disposed of. No costs.
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As a sequel, miscellaneous petitions pending if any shall stand closed.
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Date: 06.06.2024 T. VINOD KUMAR, J
MRKR