Sri Venkata vs Prl.Secy., Muni.Admi. Dept.,
2021 Latest Caselaw 215 AP

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


                     W.P.No.43977 of 2017,
                    WP.No.1023 of 2018 and
                      WP.No.34209 of 2018
COMMON ORDER :

     Writ Petition No.43977 of 2017 is filed seeking a writ of

Mandamus declaring the action of the respondents in granting the

building approval on 06.10.2015 and 06.12.2017 in favour of the

respondent Nos.3 and 4 as illegal and to set aside the same and

also a further order of removing the constructions made as per the

above said approved plans of 2015 and 2017. The petitioner is a

private citizen who is questioning the grant of the approval by the

2nd respondent. Respondent Nos.3 and 4 are the un-official

respondents.

The petitioner now claims to be the owner of Ac.0.13 cents of

land in Sy.No.125/1A of Ramavarappadu Village, Vijayawada

Rural. He claims to have acquired title through a gift deed dated

31.12.1980. According to the petitioner, one Sri G.Venkataswami

occupied the land on the western side of the petitioner's property.

A suit (OS.No.329 of 2013) for declaration and for recovery of

possession is filed and the same is pending. It is also stated that

the private respondents claim to be the owners of Plot No.6 have

applied for regularization of the said plot which was granted by the

Urban Development Authority. Therefore, a suit OS.No.850 of

2013 was filed questioning the approval granted for the plot by the

Urban Development Authority. While these two suits are pending,

the 3rd respondent who has purchased plot No.6 has applied for

approval for construction of the building in the disputed land. In

spite of the dispute, according to the petitioner, the 2nd respondent

granted approval of the plan and started construction of the

building. Hence, the writ is filed in December, 2017 seeking a

prayer against the grant of the two approvals, to set aside the same

and to remove the so-called illegal constructions.

The 2nd respondent has filed a counter. According to the said

counter, plot No.6 was regularized in September, 2012 and a suit

OS.No.850 of 2013 is pending against the said regularization. This

plot was sold to respondent Nos.3 and 4, who applied for initial

permission and secured the same in October, 2015. For

construction of further floors, a second approval was sought and

was granted in December, 2017. It is clearly mentioned that after

the interim order was granted by this Court, no further

constructions were permitted to be made in the plot.

Respondent Nos.3 and 4 have filed a counter inter alia

contending that the entire area is plotted and that plots are existing

there. They point out that two comprehensive suits OS.No.850 of

2013 and OS.No.329 of 2013 for declaration of title are pending. It

is reiterated that as there are disputed questions of fact and suits

are pending before a competent civil Court, it is the civil Court

alone that can decide the issues raised.

WP.No.1023 of 2018 is filed by the petitioner against the

CRDA and the un-official respondents. The averments in this case

are also the same including the pendency of the suit OS.No.329 of

2013 for declaration of title and recovery of possession. In this

case, the building permit granted to the 3rd respondent in October,

2017 is questioned. The prayer in the writ is to set aside the

building permission that has been granted. The 3rd respondent

who has appeared has raised an issue in his counter about the title

of the petitioner and states that he is not the owner of Ac.0.13

cents of land. The respondent claims to have purchased 193.06

square yards of land on 17.02.1989. As the writ petitioner was

obstructing the usage of the property and the road, he filed a suit

OS.No.485 of 2009 for an injunction against the usage of the road.

The road was formed according to the 3rd respondent after all the

building owners executed a gift deed in favour of the Panchayat. In

the alternative, it is submitted that the suit OS.No.329 of 2013 is

pending and therefore, it is argued that a writ is not a proper

remedy.

In WP.No.34209 of 2018, the respondent in WP.No.1023 of

2018 is the writ petitioner. He is questioning the orders issued by

the CRDA by which he was directed to stop the construction. The

petitioner again submits that he purchased the property on

17.02.1989 and that the building plan is approved in October,

2017. It is pointed out that after the interim order was passed in

WP.No.1023 of 2018, no further constructions are made. He points

out that an official order dated 30.04.2018 was given by the

respondents to stop the construction. An explanation was also

submitted to the same. But a further order dated 17.09.2018 was

passed to demolish the further constructions. These are the orders

which are challenged in this writ petition.

On the other hand, the unofficial respondents herein filed a

counter stating that there is an illegal understanding between the

CRDA and petitioner that all the constructions are made after the

interim order was given; that contempt application had to be filed

because the petitioner openly flouted the orders and that the CRDA

is siding with the petitioner in this case in taking action against

him.

This is the sum and substance of the three writ petitions

which have been filed and have been heard together.

The Court has heard learned counsel appearing for the writ

petitioners in the respective writ petitions and the counsels for the

respondents.

The gist of the dispute that can be traced is the claim of the

writ petitioner in WP.No.43977 of 2017 and WP.No.1023 of 2018.

He claims to be the owner of the property. He traces his title to a

gift deed. Thereafter, it is stated that after some sales are made, he

is the owner of the property as described in items 1 of the plaint

schedule property. It is stated that plaintiffs 2 and 3 who have

acquired title from the first plaintiff are the owners of item No.2.

The prayer in the suit OS.No.329 of 2013 is for declaration of title,

for recovery of possession, a mandatory injunction for removal of

illegal occupation and for other reliefs. The plaint is part of the

material papers. The plaint was also amended as can be seen

from the plaint copy by adding para 16(a). It is mentioned that the

defendant No.15 has acquired 193.18 square yards of land. There

are prayers in the plaint for three items of property which are

occupied by defendant Nos.1, 2 and 3 to 6. According to the plaint,

defendants 1 to 17 are in illegal occupation of the plaintiff's

property.

As mentioned earlier, apart from this, there are two other

suits which are also pending. The fact further remains that the

plaintiff in the suit OS.No.329 of 2013 is the writ petitioner in

WP.No.43977 of 2017 and also WP.No.1023 of 2018. The building

approvals which are sought to be set aside were given in October,

2015 and December, 2017 (WP.No.43977 of 2017) and building

approval is dated 30.10.2017 for the property covered by

WP.No.1023 of 2018. In both these cases, the plaintiff will have to

establish that he is the actual owner of the property. The plaint

copies which are filed show that there are serious issues to be

tried. There are allegations of encroachment of the plots and

allegations of the encroachment into the common road also. It is

stated that the entire property of the first plaintiff has been

occupied by defendant Nos.1 to 7 in OS.No.329 of 2013. There are

serious allegations that defendant Nos.1 to 7, 10 and 11 have also

colluded with the authorities and a surveyor is not even appointed.

The suit is therefore filed for a declaration of the plaintiffs title over

200 square yards and 429.2 square yards, for a permanent

injunction and a prayer for recovery of possession of the

encroached schedule property by defendant No.1 to 6 by the

defendants and also 341.2 square yards of an unauthorized C.C.

road paved by defendant No.7. This is the scope of the suit

OS.No.329 of 2013.

In OS.No.850 of 2013 also, there are serious allegations about

the manner in which the property was acquired by the defendants

and also the sanction of the lay out approval. It is stated that

material facts are suppressed for regularization of the lay out.

Therefore, on the basis of these serious allegations, the lay out

approval which was granted/lay out regularization which has

granted was sought to be cancelled. The 3rd writ petition is about

the stoppage of further constructions. This suit O.S.No.850 of

2013 which is filed questioning the regularization has been

dismissed on 16.07.2019 with costs.

Similarly, a copy of the order passed in OS.No.485 of 2019 is

also filed. The writ petitioner Sri Ayyanna Naidu in WP.No.43997

of 2017 and WP.No.1023 of 2018 is the defendant in the suit. Sri

K.Srinivasa Rao, the petitioner in WP.No.34209 of 2018 is the

plaintiff. This suit is filed for an order restraining the respondents

from interfering with the road portion. The suit was decreed with

costs on 31.10.2018 by the V Additional Senior Civil Judge,

Vijayawada granting a permanent injunction in favour of the

plaintiffs and against the defendants 1 and 2 till the rights of the

first defendant are decided in OS.No.329 of 2013.

Therefore, as the things stand, there are two judgments of

competent civil Courts. In the second judgment which relates to

the road portion which is supposedly occupied, the learned senior

civil Judge has held after a trial that the rights of the petitioner in

the writ are seem to be established. Even as on date, there is no

clarity about the title of the petitioner to the specific bit of land

which he claims. This is a matter of evidence which can be decided

only by a competent civil Court.

In the opinion of this Court, the issues raised by the

petitioners are matters of evidence which can only be appreciated

by a Court of competent jurisdiction. Issues of fraud, collusion,

illegal occupation of property etc., have to be established.

Boundaries and extents have also got to be firmly established.

These are all matters which a writ Court cannot enter into.

Admittedly, the suit for declaration of title is still pending and the

learned senior civil Judge while dismissing OS.No.285 of 2019 has

also held that the first defendant Sri Venkata Ayyannayudu has to

establish his title in OS.No.329 of 2013. Injunction is granted till

the same was established.

In view of above and as the pleadings and documents clearly

show that a comprehensive civil suit is pending, and as there are

serious questions of fact to be established, this Court is of the

opinion that the petitioner in WP.No.43977 of 2019 and 1023 of

2018 is not entitled to any relief at this stage.

In WP.No.34209 of 2018, the prayer is with regard to an order

to stop construction. This was finalized on 17.09.2018. The

explanation submitted was not really considered in the second and

final order on 17.09.2018. A brief and cryptic order is issued. This

is contrary to the settled law on the subject which states that all

such orders should be reasoned. As the civil suit is pending and as

the issue raised about the title of the petitioner in 193.06 square

yards is also to be decided, this Court is of the opinion that the

petitioner is entitled to an order as prayed for. As the suit

OS.No.850 of 2013 has been dismissed, there cannot be an order

against the petitioner in WP.No.34209 of 2019.

Therefore, WP.Nos.43977 of 2017 and 1023 of 2018 are

dismissed and WP.No.34209 of 2018 is allowed. No order as to

costs.

As a sequel, the miscellaneous petitions if any shall stand

dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date : 20.01.2021 KLP