R.V.Ramana Rao vs The Peddapalli Municipality
2021 Latest Caselaw 17 Tel

       THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                         W.P.No.19049 OF 2020
ORDER:

Heard Sri O.Manohar Reddy, learned senior counsel,

appearing on behalf of Ms.C.Avani Reddy, the learned counsel

for petitioner, Sri N.Praveen Kumar, the learned Standing

Counsel, for respondent No.1, and Sri Y.Rama Rao, the

learned counsel for respondent No.2. With their consent, the

Writ Petition is disposed of at the stage of admission.

2. The present Writ Petition is filed aggrieved by the action

of the respondent No.1 in granting building permission vide

File No. and Permit No.3014/W1/2020/1134, dated

13.09.2020, in favour of respondent No.2.

3. The case of the petitioner, in brief, is that he is the

owner of the property, admeasuring 669.16 square yards,

situated in Survey Nos.342 and 343/5 of Peddapalli Town

and Mandal, Peddapalli District. According to the petitioner,

earlier, he filed a suit being O.S.No.40 of 2011 on the file of

the Junior Civil Judge, Peddapalli, seeking injunction

restraining the defendants therein from interfering with his

peaceful possession and enjoyment over the subject property.

The above suit was decreed, vide Judgment dated

19.03.2018. It is stated that during the pendency of the said

suit, respondent No.2 has purchased part of the subject

property i.e. an area admeasuring an extent of 402 square 2 AAR,J WP No.19049 of 2020

yards in Survey Nos.342 and 343/5 situated at Shanthi

Nagar Sivaru, Peddapally Town and District, under a

registered sale deed dated 09.05.2016, and thereafter made

an application for building permission before respondent

No.1-Municipality. The petitioner filed his objections before

the respondent No.1 requesting the Municipality not to grant

building permission in favour of respondent No.2. The

respondent No.2, without disclosing the factum of decree of

injunction granted by the trial Court against her vendor in

respect of the very same property, has filed W.P.No.12376 of

2020, and this Court, vide order dated 11.08.2020 has

disposed of the said writ petition directing respondent No.1 to

accept the application of the writ petitioner (respondent No.2

herein) for building permission in terms of the Memo

No.2252/M1/2017, dated 28.04.2017 issued by the Secretary

to Government, M.A & UD Department, and pass appropriate

orders, as per law. It is stated that after disposal of the said

W.P.No.12376 of 2020 on 11.08.2020, respondent No.1

sought the legal opinion on the issue of granting building

permission, and basing on the legal opinion, respondent No.1

has granted building permission in favour of respondent No.2

on 13.09.2020. Alleging that in spite of making a

representation on 29.09.2020 and submitting objections on

13.02.2020 and 25.02.2020, respondent No.1 has granted

building permission in favour of respondent No.2, the

petitioner has filed the present writ petition.

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                                                      WP No.19049 of 2020

4. This Court, on 02.11.2020, while issuing notice before

admission, has suspended the impugned building permission.

5. The counter affidavit is filed by respondent No.2 along

with the vacate stay application, denying the averments made

in the writ petition and has stated that the vendor of the

petitioner got an extent of Ac.1.00 guntas of land in Survey

Nos.342 and 343/5 of Shanthi Nagar, Peddapalli, on

07.03.2008 by way of final decree in a suit for Partition being

O.S.No.69 of 2001 on the file of the Senior Civil Judge,

Peddapalli; that respondent No.2 is not a party to the suit

O.S.No.40 of 2011 filed by the petitioner for perpetual

injunction nor she is having any notice about the same. The

perpetual injunction granted in O.S.No.40 of 2011 is not

binding on her; that she purchased an extent of 402.5 square

yards of land for a valuable consideration from her vendor,

D.Thirupathamma, who got an extent of Ac.1.00 guntas of

land in Survey Nos.342 and 343/5, by way of final decree in

O.S.No.69 of 2001. That the petitioner instead of

approaching the Civil Court for settling the title dispute has

chosen to file the Writ Petition under Article 226 of the

Constitution of India, which is impermissible. The Municipal

Commissioner after duly verifying the documents has prima

facie found that the respondent No.2 is having prima facie

title and is in possession of the subject land has granted

building permission, pursuant to the order dated 11.08.2020 4 AAR,J WP No.19049 of 2020

passed by this Court in W.P.No.12376 of 2020, and the same

cannot be faulted with. The partition suit between

D.Venkateswara Reddy and D.Thirupathamma was decreed,

and the vendors of the petitioner was allotted Ac.1.00 gts.,

towards western side of the suit schedule property whereas

the vendors of respondent No.2 was allotted eastern side part.

By suppressing all these material facts, the petitioner has

obtained interim order from this Hon'ble Court and therefore

it is prayed to vacate the interim order passed by this Court

on 02.09.2020 and also to dismiss the writ petition.

6. In the reply filed by the writ petitioner to the counter

affidavit, it is stated that the vendor of respondent No.2 is a

party to the suit (arrayed as defendant No.2) and the first bit

of the schedule land is purchased by the respondent No.2

herein. Therefore, the contention that the decree of the Civil

Court is not binding on the petitioner is not correct for the

reason that the respondent No.2 purchased the property

during the pendency of the suit. It is specifically contended

that the respondent No.2 has suppressed the decree of the

Civil Court and got an order from this Court in W.P.No.12376

of 2020 basing on which the building permission was

granted. The property purchased by respondent No.2 is

covered by the decree passed by the Civil Court, therefore the

respondent No.2 is bound by the said decree. That the

Municipality has granted the building permission without 5 AAR,J WP No.19049 of 2020

taking into consideration the objections filed by the petitioner

and the decree passed by the Civil Court which has become

final. Hence, prayed to allow the writ petition.

7. The learned counsel for the writ petitioner has

contended that the building permission was obtained by the

respondent No.2 by suppressing the judgment and decree,

dated 19.03.2018 passed in O.S.No.40 of 2011, by the Civil

Court in favour of the petitioner herein. Even the order dated

11.08.2020 passed by this Court in W.P.No.12376 of 2020,

which is the basis for grant of building permission by

respondent No.1, was also obtained by respondent No.2 by

fraud, by suppressing the true facts and without disclosing

the judgment dated 19.03.2018 before this Court. That the

subject property of the impugned building permission is part

and parcel of the suit schedule property of the Civil Suit and

the vendor of the respondent No.2 is arrayed as defendant

No.2 in the said Civil Suit. The contention of the respondent

No.2 that the judgment and decree, dated 19.03.2018 in

O.S.No.40 of 2011, passed by the Civil Court is not binding

on her as she is not a party to the suit, is not available to

respondent No.2. Learned counsel has further contended

that in spite of the objections raised by the petitioner,

respondent No.1 has granted building permission, without

application of mind, and solely based on the orders passed by

this Court in W.P.No.12376 of 2020, dated 11.08.2020.

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                                                  WP No.19049 of 2020

Therefore, the learned counsel prays this Court to set aside

the impugned building permission granted by respondent

No.1 in favour of respondent No.2.

8. Per contra, the learned Standing counsel for respondent

No.1 has contended that after obtaining legal opinion in the

matter and as per the direction issued by this Court in

W.P.No.12376 of 2020, dated 11.08.2020, the impugned

building permission has been granted by respondent No.1.

That the Municipality after finding that the 2nd respondent

has the prima facie title and in possession of the property has

granted the Building Permission.

9. Learned counsel for respondent No.2 has contended

that the impugned building permission has been granted by

respondent No.1 duly taking into consideration the material

produced by respondent No.2 including the order passed by

this Court in W.P.No.12376 of 2020, dated 11.08.2020. The

only remedy available to the petitioner is to approach the civil

Court and the writ petition under Article 226 of the

Constitution of India is not maintainable for the relief sought

by the petitioner. Learned counsel has taken this Court to

the final decree, dated 07.03.2003, passed in O.S.No.69 of

2001 to contend that the land purchased by the respondent

No.2 fell to the share of the vendor of respondent No.2 and

therefore the contention of the petitioner that the vendor of

respondent No.2 does not have any title to the property is 7 AAR,J WP No.19049 of 2020

incorrect. That the respondent No.2 is in physical possession

of the property and is constructing the building strictly in

accordance with the sanctioned plan. Thus, the learned

counsel has prayed this Court to dismiss the writ petition.

10. Heard both sides and perused the record.

11. A perusal of the documents filed by the parties reveal

that the writ petitioner has filed a suit for perpetual

injunction being O.S.No.40 of 2011 on the file of the Junior

Civil Judge at Peddapalli. Pending the suit for perpetual

injunction in O.S.No.40 of 2011, the vendor of the respondent

No.2 i.e. defendant No.2 therein remained ex parte and sold

the property to respondent No.2 vide registered sale deed,

dated 09.05.2016, bearing document No.2225/2016. The

said suit has been decreed on 19.03.2018. One of the

schedules of the property in that suit is as follows:

        East       : 20 feet road
        West       : 20 feet road
        North      : House of the defendant constructed
                     in 250 Sq.Yds., out of the suit land
        South      : 30 feet road


12.     The     vendor   of    the    respondent     No.2        i.e.,

Smt.Donthireddy Thirupathamma was arrayed as defendant

No.2. The respondent No.2 has purchased the scheduled

property vide registered sale deed, dated 09.05.2016, bearing

document No.2225/2016. As per the recitals in the said sale

deed and also the pleadings of the respondent No.2, the 8 AAR,J WP No.19049 of 2020

vendor of the 2nd respondent is claiming title to the property

vide judgment and decree, dated 07.03.2003, in O.S.No.69 of

2001 on the file of the Senior Civil Judge at Peddapalli. In

the said suit for partition, Smt.D.Thirupathamma was

allotted ½ share in the suit schedule property i.e., Ac.1.00 out

of the total Acs.2.00 guntas in Sy.Nos.342 and 343/5

situated at Shantinagar of Peddapalli.

13. Admittedly, the respondent No.2 has purchased the

property in question on 09.05.2016, thereafter, she filed an

application for building permission on 29.01.2020. When the

said application for building permission was not processed,

she filed a writ petition in August, 2020. The said writ

petition was numbered as W.P.No.12376 of 2020 and was

disposed of vide order dated 11.08.2020. Pursuant to the

order passed by this Court in W.P.No.12376 of 2020, the

Municipality obtained the Legal Opinion of its Standing

Counsel and on the basis of the Legal Opinion, dated

23.08.2020, the building permission was granted on

13.09.2020. The writ petitioner has filed representations,

dated 13.02.2020 and 25.02.2020, bringing to the notice of

the municipal authorities to stop the illegal construction

undertaken by the respondent No.2 and that there was a

dispute with the title to the said property.

14. In the above factual background, the issue before this

Court is whether the Municipality was correct in granting the 9 AAR,J WP No.19049 of 2020

building permission based on the registered sale deed, dated

09.05.2016, relied by the respondent No.2, without

considering the objections filed by the petitioner.

15. As seen from the record, the suit schedule property in

O.S.No.40 of 2011 and the schedule land mentioned in the

registered sale deed relied by the 2nd respondent is one and

the same. The bondaries shown in the sale deed of

respondent No.2 and the one shown in the suit in O.S.No.40

of 2011 filed by petitioner tally with each other and are

identical. The vendor of the 2nd respondent is a party

defendant in the suit filed by the petitioner i.e., O.S.No.40 of

2011 and therefore, the contention of the 2nd respondent that

the judgment and decree, dated 19.03.2018, in O.S.No.40 of

2011 on the file of the Junior Civil Judge, Peddapalli, is not

binding on her is not correct and unavailable to her. The law

on lis pendens is well settled.

16. Section 52 of the Transfer of Property Act, 1882, reads

as follows:

"During the pendency in any Court having authority within the limits of India... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."

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                                                              WP No.19049 of 2020

17. The Hon'ble Supreme Court in Sanjay Verma Vs.

Manik Roy and others1, at para 12, held as under:

"The principles specified in Section 52 of the TP Act are in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendent elite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodies in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court."

18. In this particular case, the respondent No.2 has

purchased the property during the pendency of O.S.No.40 of

2011 filed by the petitioner herein and cannot take the

defence that she is not bound by the judgment and decree

passed in O.S.No.40 of 2011, dated 19.03.2018, passed by

the Junior Civil Judge, at Peddapalli. It is pertinent to extract

the finding in the judgment recorded by the learned Junior

Civil Judge at Peddapalli in O.S.No.40 of 2011, dated

19.03.2018.

".... Ex.A.13 shows that the defendant No.2 filed suit vide O.S.No.69 of 2001 for partition and separate possession of the land extent of Ac.200 gts., in Sy.No.342, 343/5 against

1 (2006) 13 SCC 608 11 AAR,J WP No.19049 of 2020

her son i.e., defendant No.1 and the same was decreed by declaring that they are entitled for equal share i.e., Ac.1.00 gts., each. In the said suit, the defendant No.1 was set ex parte. The wife of plaintiff No.1 and other 14 persons filed suit vide O.S.HNo.71 of 2004 for declaration and injunction against the defendants No.1 and 2 herein this case and Muriki Sappalaiah for the land in Sy.No.342, 343/5, in which the defendants No.1 and 2 have filed their written statement, in that they have stated that they got Ac.1.00 gts., of land each inf parltition suit i.e., OS.No.69/2001. The defendant No.1 filed suit in OS.No.74 of 2004 for perpetual injunction against the wife of plaintiff No.1 for the land extent of Ac.1.00 gts., in suit survey number, in which he stated that himself and his mother got land each Ac.1.00 gts., in a partition in OS.No.69/2001, the same suit was dismissed for default. But, the defendant No.1/DW1 stated in his chief examination affidavit that he succeeded the land extent of Ac.2.00 gts., in Sy.No.342, 343/5 from his father. This shows that the pleadings of the defendants No.1 and 2 in O.S.No.71 of 2004 and the pleadings of defendant No.1 in O.S.No.74/2004 appears to be false to the extent, they got land extent of Ac.1.00 gts., in the partition through Court decree in O.S.No.69/2001. As such, the entries were recorded in the name of defendant No.2 as pattedar and possessor of land extent of Ac.1.00 gts., in Sy.No.342, 343/5 under Exs.B.2, B.3 and B.6 appears to be false. It appears that the defendant No.1 cleverly filed a suit in OS.No.69 of 2001 through his mother against him by suppressing about the Exs.A.2 to A.4....

In the result, the suit is decreed by granting perpetual injunction restraining the defendants, their family members, agents and workmen etc., from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. In the circumstances of the case, there is no order as to costs."

19. In view of the above finding recorded by the Civil Court,

the 2nd respondent cannot take shelter under the judgment

and decree passed in O.S.No.69/2001, dated 07.03.2003, 12 AAR,J WP No.19049 of 2020

passed by the Senior Civil Judge, at Peddapalli, to contend

that the vendor has the necessary title and right to alienate

the subject property.

20. Though the Counsel for respondent No.2 and the

Standing Counsel for respondent No.1 have vehemently

argued that based on the order passed in W.P.No.12376 of

2020, dated 11.08.2020, the authorities have granted

Building Permission. Therefore, the same cannot be faulted

with. It is pertinent to extract the operative portion of the

order, dated 11.08.2020, passed in W.P.No.12376 of 2020 to

find out as to whether this High Court has given such an

order as contended by the learned counsel for respondent

No.2:

"Accordingly, the writ petition is disposed of, directing the Respondent Municipality to accept the Application of the petitioner for building permission in terms of the Memo No.2252/M1/2017, dated 28.04.2017, issued by the Secretary to Government, MA & UD Department, and pass appropriate order, as per law. No costs."

21. A reading of the above order makes it abundantly clear

that the Municipality was only directed to accept the

application and pass appropriate order. The order does not in

any manner directed the Municipality to sanction the building

permission. As on the day, the application for building

permission was considered, the objections of the petitioner

were pending before the authority, but there is absolutely no

whisper or reference in the impugned Building Permission as 13 AAR,J WP No.19049 of 2020

to whether the said objections were considered or not. The

Municipality as well as the 2nd respondent were well aware of

the objections filed by the petitioner, as is evident from the

fact that the application for Building Permission was kept

pending from 29.01.2020 for a period of more than eight

months. The Municipality has acted only after the order in

W.P.No.12376 of 2020, dated 11.08.2020, was passed.

22. The authorities were bound to consider the objections

filed by the petitioner against granting of the Building

Permission, instead of disposing of the said objections by a

separate reasoned order, they chose to ignore the same and

granted permission without reference to the said objections.

Therefore, this Court has to necessarily hold that the building

permission granted by the Municipality without considering

the objections of the petitioner is bad, arbitrary and against

the principles of natural justice and equity.

23. In view of the above stated facts and circumstances, the

writ petition is partly allowed and the Building Permission,

dated 13.09.2020, granted in favour of respondent No.2 is set

aside. The matter is remanded back to the Commissioner to

consider the application for Building Permission, afresh, duly

taking into consideration the objections filed by the petitioner

herein. It is needless to state that the prayer for demolition of

the building sought by the petitioner cannot be granted as

admittedly the 2nd respondent has constructed the building 14 AAR,J WP No.19049 of 2020

under Building Permit Orders, dated 13.09.2020, and

therefore, the same cannot be considered as an unauthorized

building.

24. Till such time, the Municipal Commissioner passes the

order on the application of the 2nd respondent, afresh, the

respondent No.2 is restrained from making any further

construction in the subject land.

25. Any observations made in this Writ Petition are for the

purpose of disposing of the present writ petition and should

not be construed as giving any finding on the title of the

party. The authorities are directed to pass the order

independently and uninfluenced by the above observations.

The miscellaneous petitions pending, if any, shall stand

closed. There shall be no order as to costs.

_________________________ A.ABHISHEK REDDY, J Date : 05-01-2021.

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