Sana Radha, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 1178 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

              WRIT PETITION No.21469 of 2020

ORDER:

This Writ Petition is filed by the petitioner

questioning the rejection of a building permission dated

20.06.2020 without verifying the petitioner's site and without

considering the application that has been submitted etc., and

seeking a consequential direction to verify the documents or

to restore the building permit.

This court has heard Smt. Preethi Reddy, learned

counsel for the petitioner and Sri S.Lakshmi Narayana Reddy,

appearing for the 2 nd and 3 rd respondents along with the

learned Government Pleader for Municipal Administration

who appears for the 1 respondent.

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PETITIONER'S SUBMISSIONS:-

The petitioner submits that despite having valid title

the respondents have wrongfully rejected the building

application after initially sanctioning the same. Learned

counsel argues that the petitioner's husband is one

S.RajagopalaNarsingarao, S/o Surya Narayana Murthy. He

acquired the property through a deed of conveyance executed

in his favour on 15.09.1952, by which according to the

petitioner two bits of land in T.S.No.1671 (13 cents = 629.62

Sq.yards) and in T.S.No.1669 (12 cents = 580 Sq.yards) were

acquired. Later, in 2004 the said Sana RajagopalaNarasinga

Rao executed a registered gift deed in favour of the petitioner

bequeathing 427.77 sq.yards of land in Sy.No.1671 to the

petitioner. Claiming title through these two documents the

petitioner had applied for a building plan, which was initially

granted on 20.04.2020. Petitioner started the construction as

per the plan but thereafter a shortfall notice was issued on

07.07.2020 for stopping the further construction. It is argued

that despite clear and categorically representation dated

10.07.2020 the plan was not restored and therefore, the Writ

is filed.

Learned counsel for the petitioner argued that there

are two bits of lands in T.S.Nos.1671 and 1669. It is her

contention that the land in T.S.No.1671 has always been in

peaceful possession and enjoyment of the petitioner's family

and that the AC sheet shed in this site has been assessed to

taxes of municipality, electricity connection was also issued to

the petitioner. It is purely a private site. Learned counsel for

the petitioner submits that the tax receipts etc., which are

filed clearly show that the petitioner has been in settled

possession and enjoyment of the property. She contends that

without any basis and holding that this present site is a park

area / common area in the layout, the plan was rejected.

This contention of the GVMC-respondent is very vehemently

opposed by the learned counsel for the petitioner, who points

out that this park and the present site are not the same and

under the misconception the GVMC has wrongfully rejected

the plan.

RESPONDENTS'SUBMISSIONS:-

In reply to this, learned standing counsel for respondent

Nos.2 and 3-Municipal Corporation, relying upon his counter

affidavit, argues that the site covered by the plan is a park in

the SBI Staff Housing Cooperative Society lay out in T.P.

No.23/64. Therefore, the first and foremost submission is

that since it is a common area meant for public purpose it

cannot be used for any other purpose let alone construction

of a house.Apart from that he argues that the petitioner does

not have a valid title to the property. It is submitted that

1952 document, on which the petitioner relies, is an

unregistered document and it could not have conveyed any

title whatsoever. Therefore, he submits that any subsequent

document executed on this document cannot also convey

valid title. He states that the petitioner has no title at all to

the property. Apart from this, it is also contended that the

petitioner's husband has filed W.P.No.20458 of 2002 before

the combined High Court and sought protection from

demolition of his unauthorized sheds in T.S.No.1671. It is

argued that in the said Writ Petition the learned single Judge

also disposed off the Writ Petition holding that in T.S.No.1671

some sheds were constructed, and that the Corporation

should obtain an undertaking from the petitioner that he

would not alter the nature of the land or make constructions

without prior permission. It was also noticed that the open

space can only be used for community purpose since the

learned single Judge noticed that the shed was being used for

running an institution of fine arts. The learned single Judge

held that further permission can be declined if constructions

of permanent nature or commercial constructions are sought

to be made. As the activity being run in the sheds is for

communal purpose the learned single Judge held that no

further constructions can be made. These are highlighted by

the learned standing counsel. Last but not the least relying

upon the case law that is submitted he argues that

complicated questions of fact are present in this case and this

Court while exercising jurisdiction under Article 226 should

not enter into these areas of dispute which require an

elaborate trial. Therefore, he submits that the Writ Petition is

to be dismissed.

REJOINDER:-

In reply to this, learned counsel for the petitioner

relying upon the rejoinder affidavit filed argues that two

properties covered by the Writ Petition No.20458 of 2002 and

the present Writ Petition are not common and that the

rejoinder affidavit filed clearly shows that these are two

distinct properties. Apart from that by relying upon the

counter affidavit filed, learned counsel for the petitioner

argues that in T.S.No.1671 an extent of 629 Sq.yards is

involved out of which 427 Sq.yards is the subject matter of

the Gift Deed. She submits that in the balance extent of land

approximately 100 Sq.yards is lost in road widening and 100

Sq.yards is with the petitioner's husband, who has raised a

shed etc. Therefore, she argues that this site is distinct from

the litigation covered by the judgment of the learned single

Judge in W.P.No.20458 of 2002.

DETERMINATION:-

This Court after hearing both the learned counsel,

perusing the documents etc., considering the issues raised /

argued notices that there are quite a few facts which are

disputed and not clearly established either by the petitioner

or the respondent in this Writ.

The following are the said questions of fact -

1. The petitioner is tracing her title through (a) A

deed of conveyance executed in the year 1952 in

favour of the petitioner's husband. This document

dated 15.09.1952 is executed by the General

Power of Attorney holder of the Inamdar in

Visakhapatnam. As per this document two bits of

land are supposedly conveyed i.e., (i) Ac.0.13 cents

situated in Sy.No.1671 equivalent to 629.62

Sq.yards (ii) Ac.0-12 cents situated in Sy.No.1669

equivalent to 580 Sq.yards. This document is not

a registered document. It is styled as a deed of

conveyance. The law on the subject is fairly well

settled and does not require repetition as

conveyance of any property worth more than

Rs.100/- can only be through only a registered

instrument.(Section 17 (1)(b) of the Registration

Act 1908) The GPA holder of the Inamdar has

executed this deed in 1952. Thus, whether valid

title is conveyed under this deed and whether the

petitioner or her predecessor in title were in

possession since then are moot questions.

2. The submission of the learned counsel for the

petitioner is that both these properties are distinct

and separate. But this Court notices that there is

common boundary in between the 'A' schedule

629 Sq.yards and 'B' schedule of 580 Sq.yards

(Covered in 13 cents and 12 cents respectively).

The western boundary of the 'A' schedule is the

eastern boundary of the 'B' schedule. Therefore, it

is clear that these two properties are next to each

other. The separation as claimed is to clearly

visible.

3. This Court also finds that as per the Gift Deed

executed on 08.12.2004, the age of the petitioner's

husband is shown as 50 years. Therefore, as per

this Gift Deed he must have been born in 1954

only. However, the deed of conveyance deed dated

15.09.1952 is already executed in favour of the

petitioner's husband S. RajagopalaNarasinga Rao,

as a minor represented by his father. This is an

issue that needs explanation and evidence.

4. Similarly, in the Gift Deed, on which

the petitioner relies, this Court does not find any

reference to the Deed of Conveyance dated

15.09.1952, which is now relied upon by the

petitioner. The Gift Deed of 08.12.2004 states

that the property is classified as a Poorvarjitham

(ancestral) and Pitrarjitham (inheritance). The

reference to the 1952 document is totally missing

from this Gift Settlement Deed of 2004. The flow

of title is thus not clear and has to be established.

5. This court also finds that the petitioner's

claim to title for land in Sy.No.1671 is only for 629

Sq.yards. In Writ Petition No.20458 of 2002 the

claim of the petitioner therein is for the land

measuring 600 Sq.yards in T.S.No.1671 along

with some sheds, which were constructed

thereon. The writ petitioner in this writ claims

that they are in possession of the site by virtue of

a Gift Deed executed on 21.10.1987 (Document

No.6003 of 1987) by the State Bank of India Staff

Cooperative Housing Society Ltd. In this property

temporary structures were put up for organizing

training for the purpose of Khadi and Village

products. Therefore, as per the averments in the

Writ, approximately 1255 Sq.yards of land have

been gifted to the petitioner's society (petitioner in

Writ Petition No.20458 of 2002). The Learned

Single Judge after hearing the parties came to a

conclusion that if there is any permanent

structure other than compound wall the same

should not be demolished and may be considered

for levying compound fee. A further undertaking

should be obtained from the petitioner that this

will not alter the nature of the land in to

commercial activity and would not make any

constructions without obtaining the proper

approval of the Corporation. Learned single Judge

also noticed that according to the layout the open

space only for communal purpose. In the

conclusion the Learned Single Judge held that the

present respondent could decline permission for

any additional or further constructions of a

permanent or commercial construction, since the

present activity is being undertaken by the Writ

petitioner for the benefit of the community at

large.

This Court is unable to appreciate the contention

that there is absolutely no commonality between

the property covered by the present building plan

and the property covered by the dispute in

W.P.No.20458 of 2002. As can be seen, the

petitioner in W.P.No.20458 of 2002 was claiming

the right to property in Sy.No.1671 only. It is also

mentioned that an additional affidavit has been

filed by the society. As per the same three open

sites were left in the layout developed by the State

Bank of India Staff Cooperative House SocietyLtd.

In the one site the Municipal Corporation

constructed a park, community centre and

municipal commercial complex. In the second

open site, which was taken over by the Municipal

Corporation, the office of the local Sanitary

Inspector was constructed. The third open site is

retained by the society and an open well was dug

for community use and later a pump set etc., was

constructed. The house building society

constructed an office room there. A portion of this

third site was encroached. Therefore, to protect

the same from further encroachment etc., it is

mentioned that the housing society has gifted the

land to Kala Kendra Institute of Fine Arts.

In the rejoinder that is filed it is mentioned that

1255 sq.yards of land was donated to Kala Kendra

by way of Gift Deed dated 09.11.1987. The

registration of the said document is still said to be

pending. Therefore, it is not very clear that the

requisite formalities of valid gift viz., a Deed of

registration and handing over possession are both

completed. Apart from this in the order passed in

W.P.No.20458 of 2002 it is mentioned that the Gift

Deed bearing No.6003 was executed on

21.10.1987 but in the rejoinder affidavit filed the

Deed of the Gift mentioned is dated 09.11.1987. It

is also stated that out of 1255 Sq.yards of land

only 450 Sq.yards of site left out,and the

petitioner was using for non-commercial purpose.

6. The contention of the learned counsel for the

respondents that this is a vacant site as per the

lay out plan is also not strictly borne out by the

record filed by the respondent. The plan that they

have filed along with the counter does not clearly

establish the identity of the land. However, the

fact remains that the other issues raised by the

respondents viz., whether the valid title is

conveyed or not as the 1952 document is

unregistered etc., whether the property in

W.P.No.20458 of 2002 and the present property

are not one and the same etc., need to be

established.

This Court cannot also state simply that since there

are disputed questions of fact it will not enter into the areas

of controversy. This Court has a duty to spell out what are

the disputed questions of fact, which need to be established

and adjudicated. Therefore, the issues that are spelt out are

for the limited purpose of pointing out the matters which in

the opinion of the Court need to be proved in a Civil Court

through proper pleading and evidence. In the opinion of this

Court, these are all the matters of pleading and evidence,

which are best addressed and decided in a regular civil suit.

In the opinion of this Court, a civil suit is the proper and

efficacious remedy for this case and not a Writ. Disputed

question cannot be decided in the Writ. Only instances are

given. This order will not limit the rights of parties. Whatever

issues are touched upon by this Court in the preceding

paragraphs are points which in the opinion of this Court need

to be proved by establishing the same in the course of a

regular trial. It is reiterated that this court has not finally

pronounced on the merits of the issues.

Therefore, this Court holds that the petitioner is not

entitled to any relief in this Writ Petition. It is left open to the

petitioner to establish her rights in a Competent Court of

Law. In case such proceeding is instituted, the respondent

Municipal Corporation can also raise all the appropriate

defenses.

With the above observations the Writ Petition is

dismissed. There shall be no order as to costs.

Consequently, the Miscellaneous Applications

pending, if any, shall stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:26.02.2021.

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