Palagiri Nageswar Reddy vs The State Of Andhra Pradesh
2021 Latest Caselaw 3010 AP

                 THE HONOURABLE SRI JUSTICE D.RAMESH
        WRIT PETITION Nos.13023 of 2020 & 12833 of 2021

COMMON ORDER:

       Brief facts in W.P.No.13023 of 2020 are as follows:

       The Writ Petition is filed under Article 226 of the Constitution of

India seeking to declare the action of respondent no.7 in not conducting

any survey of the land in Sy.No.560/1 Buddayapalle village of

Chinnachowk area, Kadapa town and 6th respondent trying to approve

the apartment plan and give consent for the construction of an apartment

for the application submitted by the respondents 10 to 15 in the house

plot in an extent of 484 sq.yards/0-10cents in sy.no.560/1 of

Telecomnagar of Chinnachowk village of Kadapa city though objected by

the petitioner who is the real owner and pending civil suit/s as illegal,

arbitrary and consequently direct the respondent no.7 to conduct a

detailed survey of the subject land besides also not to give consent for

the construction of any apartment for the application submitted by the

respondents 10 to 15 in the subject house plot.

2. Brief facts in W.P.No.12833 of 2021 are as follows:

The Writ Petition is filed under Article 226 of the Constitution of

India seeking to declare the action of respondent no.6 in not conducting

any survey of the land in Sy.No.560/1 in telecomnagar of Buddayapalle

village of Chinnachowk area, Kadapa town and 5th respondent trying to

approve the plan for construction of apartments and give consent for

construction of the same on the application of the respondents 9 to 14 in

the petitioner's house plot in an extent of 484 sq.yards/0-10cents in

Sy.no.560/1 of Telecomnagar of Chinnachowk village of Kadapa city

though objected by the petitioner, who is the real owner and pending

some civil suit/s as illegal, arbitrary and consequently direct the

respondent no.6 to conduct a detailed survey of the subject house plot in

the presence of respondent no.7 and also direct the 5th respondent not to

give any type of approval of the apartment plan besides also not to give

consent for the construction of the same on the application of the

respondents 9 to 14 in the subject house plot.

3. In both the writ petitions, the writ petitioners are different but the

respondents are one and the same and the issue involved in both the writ

petitions is one and the same. Hence the two writ petitions are being

disposed of with a common order.

4. Heard both sides.

5. The petitioner in W.P.No.13023 of 2020 purchased an extent of

484sq.yards/Ac.0.10cents of land in Sy.No.560/1 of Telecomnagar,

Chinnachowk village of Kadapa city on 06.11.2015 vide registered sale

deed no.4917/2015 from one Smt. P.Venkatasubbamma and her son

P.Sreenivasulu Reddy of Chinnachowk, Kadapa city for a valuable

consideration. Similarly, the petitioner in W.P.No.12833 of 2021 Sri

Jinka Subbareddy, S/o Subba Reddy had purchased an extent of

484sq.yards/10cents in S.No.560/1 of Telecomnagar, Chinnachowk

village of Kadapa city vide registered sale deed no.4918/2015 dated

06.11.2015.

6. When the unofficial respondents herein tried to encroach the house

site and tried to construct apartments without any right, title, interest

and possession over the said property, the petitioners along with other

purchasers complained to the municipal corporation of Kadapa and as a

sequel the corporation has issued notice on 06.02.2020 to the

respondent S.K.V. Constructions stating that without prior approval of

the municipal corporation they cannot undertake any construction under

section 452 and 461 of Hyderabad Municipal Corporation Act 1965. The

assertion of S.K.V.Constructions is that it has purchased the said land

from other respondents. The petitioners have also issued legal notice on

11.02.2020 to Kadapa municipal corporation and other officials not to

grant or issue any approvals for construction of any building in favour of

S.K.V. Constructions or any other persons during the pendency of the

litigation. Infact, the petitioners along with other vendors filed a suit in

O.S.38/2019 before the Additional Senior Civil Judge's Court, Kadapa

against one Nelaturu Madusudan Reddy and Chittem Uma Sankar and the

same is pending adjudication. In fact the said Nelaturu Madusudan reddy

and Chittem Uma Sankar have also filed separate suits against the

petitioners vide O.S.197/2016 and O.S.198/2016 before the III

Additional Junior Civil Judge, Kadapa and they were disposed of and

appeals filed were also numbered as A.S.5/2020 and A.S.6/2020 and

they are pending before the I Additional District Court, Kadapa. While

the things stood thus, now the SKV Constructions has made false claim

saying that it has purchased the subject property from respondent no.11

to 15 to make construction of flats.

7. In fact several parties are making claim for one property and there

is a confusion regarding the identification of the property. Hence both

the petitioners have paid amount to the municipal corporation of Kadapa

to conduct survey of the land by the municipal surveyor and give a

quietus to the lis. Accordingly, they have applied by paying the amounts

vide challan dated 24.02.2020. As a sequel to the same, the municipal

corporation issued notice to the S.K.V. Constructions not to undertake

any unauthorized construction without prior approval of the corporation

vide notice dated 15.5.2020. Subsequently, the petitioners have also

made a complaint to the police on 27.5.2020. When the petitioners have

made an application for survey through mee-seva by filing challans on

25.6.2020, no action has been initiated by the authorities. Hence they

have approached the Secretary, Sachivalayam on 03.7.2020 asking the

authorities to survey the land and give a sketch and the same is also

pending. When the competent authorities have not initiated any action,

the petitioners have made a complaint to the District Collector and the

District Collector in turn informed the municipal commissioner on the

representation dated 14.7.2020 to take action as per law and

communicate the action taken report. While that being the situation, the

petitioners have filed O.S.No.342/2020 on the file of the III Additional

Junior Civil Judge, Kadapa against the respondent nos.9 to 14 seeking

declaration and injunction against them and they have also filed an I.A.

under Order XXXIX Rule 1 CPC and the same is pending. Suit is being

adjourned due to the pandemic.

8. Despite pendency of litigation and repeated requests made by the

petitioners, the authorities are contemplating to issue permission in

favour of S.K.V.Constructions for construction of apartments. If once,

the respondents constructed the building, the petitioners would get

irreparable loss and injury. Hence the writ petitions are filed.

9. Though the petitioners have filed the writ petition in the month of

August 2020 on 03.5.2021, this Court has passed the following order.

.....Although learned counsel for the petitioner submits that permission was accorded for construction of the apartment by the Municipal Corporation, learned Standing Counsel for Municipal Corporation would submit that he has to verify from the concerned authorities whether any such permission is accorded or not. Therefore, in the said facts and circumstances of the case, both the parties are directed to maintain status quo existing as on today till the next date of hearing.

10. After that the respondent no.10 in W.P.No.13023/2020 i.e. S.K.V.

Constructions filed its counter. In the counter he has denied all the

allegations made by the petitioners and it is averred that one Chittem

Uma Sankar has filed a suit O.S.No.198/2016 on the file of III Additional

Junior Civil Judge, Kadapa for permanent injunction restraining the

defendants therein from interfering with the peaceful possession and

enjoyment of the plot no.14 to an extent of Ac.0.70cents situated in

survey no.556 and 557 and the said suit was decreed on 26.9.2019

infavour of plaintiff therein and against to the petitioners herein and his

vendors. During the pendency of the suit at the instance of the

defendants therein an Advocate Commissioner was appointed in

I.A.No.710/2016 to measure the properties of both the parties with

regard to their documents with the assistance of surveyor and to file a

report. Accordingly, the commissioner was appointed and report was

also submitted. But the court below has not taken up the said report into

consideration. Because the learned Commissioner has not followed the

procedure contemplated under Civil Procedure Code and further he stated

that the S.K.V.Constructions has purchased the property from 11th

respondent plot no.6 and 7 in an extent of Ac.0.14cents in survey

no.560/1 from a rightful owner S.Padmaja under a registered sale deed

dated 30.3.2011 i.e. much prior to the sale deeds of the petitioners. He

also purchased from respondent nos.12 and 13 in an extent of

Ac.0.07cents in Sy.No.560/1 from K.Govindamma under a registered sale

deed dated 04.01.2007 and they have also purchased from respondent

nos.14 and 15 an extent of Ac.0.03 ½ cents out of 7 cents of plot no.5A

right from one G.Subbamma under two different sale deeds dated

05.01.2011 and all the plots of the respondent nos.11 to 15 are the

adjoining and they have in possession and enjoyment of respondent

no.11 to 15. Accordingly, the respondent nos.10 to 15 entered into a

Joint Development Agreement cum General Power of Attorney on

09.12.2019 with S.K.V.Constructions to construct and promote

apartments in an extent of Ac.0.28cents in Sy.No.560/1. By virtue of the

said agreement, the respondent no.10 i.e. S.K.V.Constructions had

applied for building permission and the 6th respondent also granted

building permission vide permit no.1013/0133/B/KAD/cch/2020 dated

20.6.2020. When there is a short fall of certain information with regard

to door number and ward number which was mentioned as 36 instead of

38, the 6th respondent has issued a notice on 05.7.2020 to stop the work

and later on compliance report was submitted by the respondent no.10,

the building permit was issued on 13.7.2020.

11. In fact pursuant to the application made by the petitioner on

10.3.2020 for survey of his land of Ac.0.10cents out of Ac.0.40cents in

Sy.No.560/1 of Chinachowk village and on that the Assistant City Planner

of 6th respondent has visited the plots and issued an endorsement on

12.6.2020. In the said endorsement, it is clearly stated that the total

extent in Sy.No.560/1 is Ac.4.02cents and there are no sub-divisions and

out of total extent of Ac.4.02cents, there is a layout of Telecom Building

Society over an extent of Ac.2.65cents and all the plot owners

constructed houses in their respective plots and in the remaining

Ac.1.37cents lay out was made and plots were sold and as such, there is

no extent of land available in Sy.No.560/1. In view of the said

circumstances, there is no possibility to survey the land and fix the

boundaries of Ac.0.10cents of the petitioners and finally opined that

Ac.0.28cents place is tallying with the layout i.e. the petitioners have no

evidence to show that their land is within the construction area.

12. In fact after the survey, the petitioners have approached the

competent civil court by filing a suit against respondent no.10 to 15

herein, and filed I.A. for interim injunction, the court below has not

granted any interim injunction and the same is pending for adjudication.

On their failure to get the interim order in O.S.No.342/2020, the present

speculative writ petition is filed suppressing the facts. In fact the

vendors of the petitioners also filed O.S.No.183/2013 on the file of the IV

Additional Junior Civil Judge, Kadapa against five persons seeking

permanent injunction in respect of the land they have sold to the

petitioners. The said suit was dismissed though the defendants therein

was set exparte vide judgment dated 01.7.2014. In fact in the said suit

also the Advocate Commissioner was appointed and according to the

Advocate Commissioner's report, after thorough investigation, the Mandal

Surveyor expresses his inability to identify the suit schedule property.

Basing on the said report, the IV Additional Junior Civil Judge, Kadapa

vide Judgment dated 01.7.2014 dismissed it on the ground that the

vendors of the petitioners herein are not certain about the location and

identity of the suit schedule property and that in view of the report filed

by the Commissioner it makes clear that the plaintiffs therein failed to

prove the location and identity of the suit schedule property and their

possession and accordingly dismissed the suit and that became final and

no appeal has been preferred against the said judgment. After dismissal

of the said suit filed by the vendors of the petitioners, the petitioners

have purchased the present plot in 2015.

13. The Commissioner, Kadapa Municipal Corporation has filed his

counter on 26.7.2021. He denied all the allegations made against these

respondents and he also denied more specifically about the allegations

made against this respondent and a complaint made to the District

Collector. Pursuant to the application made by one Jinka Subbareddy i.e.

one of the petitioners herein, the Commissioner has ordered for a

detailed survey of land in Sy.No.560/1 of Chinnachowk village. The Town

Surveyor visited the land in Sy.No.560/1 to an extent of Ac.4.02cents.

The Town Surveyor visited the said land along with Jinka Subbareddy and

verified his documents and found that in the sale deed it has mentioned

only Ac.0.10cents out of Ac.0.40cents in Sy.No.560/1, when there is an

extent of Ac.4.02cents in Sy.No.560/1. No sub-division took place for

the said land. The alleged Ac.0.10cents named by J.Subba Reddy is not

in his possession, as out of Ac.4.02cents, Ac.2.65cents covered by

telecomnagar with residential houses. Out of the remaining

Ac.1.37cents, private layouts were held by dividing the land into different

plots and some of the plot purchasers raised constructions. In view of

the same, they are unable to identify the Ac.0.10 cents of land of the

petitioners.

14. The S.K.V.Constructions has uploaded its plan for sanction by

making necessary payments through his application dated 01.02.2020

on-line. Accordingly, after physical verification, building permit was

sanctioned vide permit no.1013/10133/B/KAD/cch/2020 dated

20.6.2020. Later on with certain short falls notice has been issued on

05.7.2020 and subsequently after rectifying the mistakes, again the work

order was issued on 27.7.2020 again when the respondents were found

that the respondent no.10 i.e. S.K.V. Constructions has not paid the

vacant land tax for the proposal site. Hence on 09.10.2020 this

respondent ordered to stop work and directed the respondent no.10 to

14 to pay the complete vacant land tax through online and comply the

short fall. Finally this respondent has issued stop work order on

09.7.2021 as directed in view of the pendency of the litigation before the

Hon'ble High Court. Finally in the counter he has stated that by virtue of

endorsement there is a due direction in favour of respondent no.10 since

there was any restrictive orders from any court of law, the respondents

have considered the application and issued permission as per rules.

15. Learned Counsel Sri S.S.Bhat has mainly relied on the documents

filed along with the writ petition i.e. sale deeds dated 06.11.2015 and he

has specifically stated that both the writ petitioners purchased

Ac.0.10cents of land each in Sy.No.560/1 out of Ac.0.40cents and he has

further submitted that before said purchase they have also verified

revenue documents as per the documents furnished by the Tahsildar on

05.8.2015 forms which are as per ROR, the land in Sy.No.560/1 of an

extent of Ac.9.02cents of Chinnachowk village of Kadapa city was in the

name of vendors of the petitioners. As per the adangals dated

06.11.2015 shows the name of the Gummalla Subba Reddy who is the

petitioners vendors vendor and after verifying the revenue records, the

petitioners have purchased the said property and they are bonafide

purchasers in view of the discrepancy in location/identification of the

land, the petitioners have submitted request to the 6th respondent Town

Planner, Kadapa to survey the land in S.No.560/1 of Chinnachowk village

and sub divide the same and hand over to the petitioners. Pending

application for survey, the respondent no.10 had contemplated to

construct the apartments in the land of the petitioners, he made

representation to the Kadapa Municipal Corporation and also issued legal

notice on 11.02.2020 requesting not to grant any building permissions to

the third parties including S.K.V.Constructions. Considering the

representation made by the petitioner, the Commissioner of Kadapa

Municipal Corporation has issued notice on 06.02.2020 under section

452(1) and 461(1) of H.M.C.Act wherein they have specifically alleged

that the S.K.V.Constructions are making constructions unauthorizedly

and the earth work started for foundation without the clear approval of

the Kadapa Municipal Corporation. Though the notice was issued by the

municipal corporation for unauthorized constructions, respondent no.10

is proceeding with the construction. Left with no option, the petitioners

have also made a complaint to the police on 27.5.2020 and he also made

one more application for survey through mee-seva and finally he made a

representation to the Commissioner, Municipal Corporation, Kadapa

bringing all the facts to his notice vide his representation dated

10.7.2020 and requested to take appropriate action against the

respondent no.10 for his unauthorized constructions. He further submits

that despite his repeated requests when the Commissioner of Municipal

Corporation has not initiated any action against the respondent no.10, he

made a complaint to the District Collector vide his letter dated

14.7.2020. Responding to the same, the District Collector has requested

to take action against the municipal surveyor and do justice in this

matter. However he submits that taking all into consideration, the

Director, Town Planning Corporation, A.P.Registration Department has

issued proceedings on 20.7.2020 to stop the work. The stop work order

has been issued by the Director, Town and Country Planning, A.P.,

Municipal Commissioner has no authority to review the said orders and in

view of the pendency of the application made by the petitioner for survey

and requested to give a direction to the 6th respondent in W.P.No.12833

of 2021 i.e. Surveyor of Town Planning, Kadapa Municipality to survey

the land in Sy.No.560/1 of Chinnachowk Village and demarcate the

petitioners lands, till such time the respondents are directed not to make

any constructions in the subject land.

16. Reply to the said contentions, Sri C.Prakash Reddy, learned

Counsel appearing on behalf of the 10th respondent S.K.V. Constructions

has vehemently argued and stated that present writ petition is filed by

the petitioners are in abusive process of courts. Initially they have filed a

suit in an appropriate court for injunction against the respondent nos.10

to 15 herein and it is not in dispute that they have also filed an I.A. for

injunction when the courts below has not granted any interim orders, the

petitioners have chosen to file this writ petition. Even according to the

averments of the writ petition, it is clear that the petitioners are not in a

position to locate and identify the property.

17. The respondent no.10 i.e. S.K.V.Constructions has made an

application after entering into an agreement with respondent nos.10 to

15, S.K.V. Constructions made an application to the Municipal

Corporation, Kadapa for grant of permission to construct flats and after

physical verification, the said application was considered and permission

was granted by the Kadapa Municipal Corporation vide its permit dated

June 2020. In fact after notice certain short falls, the respondents have

passed a stop order construction on 27.7.2020. Infact in the said order

they have clearly mentioned that door number and ward number

mentioned as 36 instead of 38 in which LTP are not shown extra

purposes site in master plan. So when there is a variation with regard to

door numbers they have issued stop work and subsequently if furnished

the relevant details they have further granted the permission for

construction.

18. Learned Counsel has relied on the judgment and decree in

O.S.No.183/2013 dated 01.7.2014 filed by the vendors of the petitioners

wherein he relied on the finding in para no.8 and 9 are relevant for the

present litigation.

.....Except the certified copies of documents creating charge in favour of Devuni Kadapa Primary Agricultural Cooperative Society, pattadar passbook and title deed, the plaintiffs have not placed any material to show that Gummalla Subbareddy acquired the suit schedule property from his ancestors.

During the pendency of the suit at the instance of plaintiffs a court commissioner was appointed for the purpose of taking measurements of the suit schedule property with the help of Mandal Surveyor. On issuing the notice, the court commissioner visited the suit schedule property and filed his report along with his rough sketch. He also submitted a report filed by the Mandal surveyor with surveyor sketch. Upon perusal of the reports filed by the court commissioner and the Mandal surveyor it makes clear that they could not locate the suit schedule property, but they could locate the entire survey number 560/1 with an extent of Ac.2.10cents......

He stated that though in the said suit, the respondents were made

exparte, but the trial court has dismissed the suit that the plaintiffs filed

to prove the location and identity of the suit schedule property for grant

of permanent injunction in respect of the specific property shown in the

plaint schedule. Therefore, the plaintiffs failed to prove the location and

identity of the suit schedule property, their possession over the schedule

property as on the date of filing of the suit they are not entitled for

permanent injunction. The vendors of the petitioners have filed the suit

in the year 2013 and in the said suit, the Advocate-Commissioner was

appointed at the instance of the plaintiffs therein and on the report filed

by the Commissioner the suit is dismissed only on the ground that the

identification of the properties by the plaintiffs in the year 2014. When

the vendors of the petitioners are not in a position to locate or identify

the properties, the petitioners have purchased in the year 2015 and they

cannot claim that the property of respondent nos.10 to 15 is the subject

property of their sale deeds. Not only this, they have also filed suits

against the vendors vendor against some third parties and the said suit

was also dismissed as against the same appeals filed and the same are

pending adjudication. In view of the findings of the IV Additional Junior

Civil Judge, Kadapa in O.S.No.183/2013, the petitioners have no right to

claim the property of the respondents 10 to 15. In fact the main

contention of the petitioners in the present writ petition is that he made

an application for survey and the municipal surveyor has not conducted

any survey and requesting to conduct survey and identify the property.

In view of the counter filed by the respondent no.6, it is clear that

pursuant to the application made by the petitioners i.e. more specifically

Jinka Subbareddy, the municipal surveyor has visited the land in

Sy.No.560/1 of Chinnachowk village along with Jinka Subbareddy and

surveyed the land and inview of the present status of the land he has

expressed his inability, accordingly proceedings were also issued to him.

In view of the said circumstances, the writ petition itself is infructuous.

No cause of action survives. In view of the pendency of the suits filed by

the petitioners against the respondents 10 to 15 herein when they could

not be able to obtain the interim orders therein they filed the present

petition with a malafide intention. In view of the same requested the

court to dismiss the writ petition for abusing process of law.

19. Sri S.S.Bhat, learned Counsel has relied on the judgments reported

in between T.rameshwar vs. Commissioner, Municipal Corporation of

Hyderabad and others1 and Smt. Muramalla Padmavathi vs. The State of

Andhra Pradesh, rep. by its Principal Secretary, Hyderabad and 4 others2.

On perusing the said two judgments, this Court is of the opinion that the

said judgments are not relevant to the present facts of the case.

20. Learned Standing Counsel appearing on behalf of the respondents

has submits that in fact the petitioners have made a representation to

the respondents immediately they have issued notice to the respondent

no.10 under section 452 and 465 of H.M.C.Act 1965. After physical

verification of the site on the report submitted by the concerned officers,

the application of respondent no.10 was considered and permission was

granted on 20.7.2020. After noticing certain short falls, the Director,

Town Planning has issued an order to stop the construction on

27.7.2020. Subsequently after complying the said objections further

permission was granted and in fact this respondent is taking action

against the 10th respondent for each and every failure. Only after

complying or rectifying the shortfalls, respondent no.10 was permitted to

proceed with the construction. Further interim directions granted by this

Court on 03.5.2021, again they have issued notice for stop construction.

21. Learned Counsel further submits that the prayer in the writ petition

has became infructuous. In fact pursuant to the representation made by

the petitioners, the Surveyor of Town Planning, Kadapa Municipal

(2006) 3 ALD 337

(2016) 3 ALD 650

Corporation has conducted physical verification along with Zinka

Subbareddy and given an endorsement after taking the factual position

into consideration that it is not possible to survey the said land in view of

the existence of telecom residential colony and also the existing houses.

Despite the endorsement given by the competent authority, the

petitioners are making repeated complaints against the respondents and

also putting pressure on the respondents not to make any constructions

in the said area and not to grant any permits in the said area. In view of

the above, he requested to dismiss the writ petition.

22. Considering the submissions made by both the Counsel and on

perusal of the record, this Court is of the opinion that the issue involved

in the present writ petitions are location/identification of the land which

requires evidence and the same can be done only on appreciation of

evidence by the competent civil courts which is having jurisdiction. On

perusal of the decree passed by the IV Additional Junior Civil Judge,

Kadapa in O.S.No.183/2012 it is made clear that the vendor of the

petitioners herein are not in a position to locate or identify the property.

Hence the said suit was dismissed. When the vendors of the petitioners

themselves are not in a position to locate/identify the plots and after

dismissal of the suit, these petitioners have purchased the property, that

itself shows that even at the time of sale transaction, they are not in a

position to identify the particular piece of land.

23. In view of the above and as per the pleadings and documents

clearly shows that a comprehensive civil suit is pending and when there

is a factual dispute, this Court cannot interfere in the said aspects as per

the rulings of the Apex Court in various judgments. Considering the

pendency of the civil suit filed by the petitioners before the IV Additional

Junior Civil Judge's Court, Kadapa, this Court is not inclined to interfere

with the facts of both the writ petitions.

24. Accordingly, both the writ petitions are dismissed. Interim order

granted in the writ petitions stand vacated. No costs.

As a sequel thereto, the miscellaneous petitions, if any, pending in

both the Writ Petitions shall stand closed.

________________ JUSTICE D. RAMESH

Date: 12.8.2021 RD

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION Nos.13023 of 2020 & 12833 of 2021

Dated 12.8.2021

RD