Boya Narasimha Naidu vs The State Of Telangana
2021 Latest Caselaw 3759 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN

                  WRIT PETITION No.328 OF 2021

ORDER:

This writ petition is filed to declare the inaction of respondents,

particularly respondent No.2 in taking steps to prevent and stop the

illegal construction activity being carried on by respondent Nos.3 to 8 in

and over the property of the petitioner admeasuring Ac.0-09 cents or

435.6 square yards, forming part of Sy.No.148/12 Paiki, situated at

Waddepally Municipality, Jogulamba - Gadwal District, as illegal and

arbitrary and for a consequential direction to respondent No.2 to remove

all the illegal and unauthorized constructions in and over the subject

property.

2. Heard Mr. V. Ramakrishna Reddy, learned counsel for the

petitioner, Mr. N. Praveen Kumar, learned Standing Counsel appearing

on behalf of respondent No.2 and Mr. Mantha Rajendra, learned counsel

for respondent Nos.3 to 8.

3. The case of the petitioner is as under:

i) He is the absolute owner and possessor of the land admeasuring

Ac.0-09 cents or 435.6 square yards, forming part of Sy.No.148/12 Paiki,

situated at Waddepally Municipality, Jogulamba - Gadwal District. He

had purchased the same from Sri Byreddy Chiranjeevi, son of Parvatha

Reddy for a valuable consideration under a registered sale deed bearing

document No.4425 of 2010, dated 04.08.2010.

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ii) Originally, one Sri Kanaka Druga Prasad Rao, son of Swami

Rao was the absolute owner and possessor of the land admeasuring Ac.0-

15 guntas forming part of Sy.No.148/Paiki. He had sold entire extent of

Ac.0-15 guntas in favour of one Jilledudinne Venkatanna through a

registered sale deed bearing document No.497 of 1967, dated

04.04.1967.

iii) After the death of said Jilledudinne Venkatanna, his son, Sri

Boya Bazari who succeeded him, in turn had executed a registered Gift

Deed bearing document No.1438 of 1988 dated 05.03.1988 in favour of

his then minor daughter, Boya Venkateshwaramma duly conveying the

land admeasuring 207.5 square yards and 435.6 square yards respectively

out of the said extent of Ac.0-15 guntas.

iv) After attaining majority, Boya Venkateshwaramma had sold an

extent of 435.6 square yards to the vendor of petitioner herein under a

registered sale deed bearing document No.3174 of 2007, dated

07.09.2007 and, thus, the vendor of the petitioner became the absolute

owner of the subject property and thereafter the petitioner herein.

v) During the year 2010, respondent Nos.3 and 4 along with their

deceased brother - Suragouni Anjaneya Goud, who is the husband of

respondent No.5 and father of respondent Nos.6 and 8 herein, had filed a

suit bearing O.S. No.93 of 2010 on the file of learned Senior Civil Judge

at Gadwal seeking cancellation of sale deed bearing document No.4425

of 2010, dated 04.08.2010 under which the petitioner had purchased the

KL,J W.P.No.328 of 2021

subject land, and for consequential relief of permanent injunction. The

said suit was dismissed on merits vide judgment and decree dated

24.04.2017. Aggrieved by the said judgment, respondent Nos.3 to 8

preferred first appeal vide A.S. No.4 of 2019 on the file of the III

Additional District Judge, Gadwal, and the same is pending.

vi) Mr. Suragouni Gajendra Goud has also filed suit vide O.S.

No.125 of 2007 on the file of the learned Junior Civil Judge at Alampur

against the vendor of the petitioner seeking declaration of title and

consequential injunction in respect of land admeasuring Ac.0.09 cents in

Sy.No.148. The said land and the land purchased by the vendor of the

petitioner are different and distinct.

vii) Respondent No.3 also preferred an appeal under Section - 5

(5) of ROR Act before the RDO at Gadwal in ROR Appeal

No.C/710/2010 challenging the mutation proceedings granted in favour

of the vendor of the petitioner and the said appeal was allowed setting

aside the mutation proceedings issued in favour of the petitioner. As

against the said orders, the petitioner preferred a revision under Section -

9 of the ROR Act before the Joint Collector, Mahabubnagar District vide

Revision Petition No.D1/64/2011 and the same is pending.

viii) In the second week of December, 2020, respondent Nos.3 to

8 have high handedly trespassed into the subject land and have tried to

raise some temporary structures without obtaining any permission from

respondent No.2. When the petitioner approached the police, they

KL,J W.P.No.328 of 2021

refused to register any case against respondent Nos.3 to 8. The petitioner

has also made a complaint to respondent No.2 on 21.12.2020 for removal

of temporary structures, but respondent No.2 did not take any steps so

far. Therefore, the present writ petition.

4. Contentions on behalf of the petitioner:

i) Learned counsel for the petitioner reiterating the contents of the

writ affidavit would further submit that there are civil cases are pending

between the petitioner and the unofficial respondents; that without

obtaining any permission from respondent No.2, the unofficial

respondents are making constructions on the subject land; and that

despite giving a complaint to respondent No.2, no steps have been taken

for removal of such illegal structures.

5. Contentions of behalf of the respondents:

i) Referring to the interim orders dated 07.04.2021 passed by this

Court, Learned Standing Counsel appearing on behalf of respondent No.2

would submit that respondent No.2 had issued a notice dated 16.04.2021

to respondent No.3 for removal of iron tin sheds that were erected

without permission. Respondent No.3 submitted his reply to the said

notice. Since respondent No.3 failed to comply with the said notice,

respondent No.2 again issued a notice dated 28.06.2021 informing him

about the seizing of the iron tin sheds erected illegally in Sy.No.148/Paiki

and accordingly directed him not to commence any further activities over

the said land without getting further orders from this Court. In view of

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the same, respondent No.2 has complied with the interim order dated

07.04.2021.

ii) Referring to the contents of the counter affidavit filed by

respondent Nos.3 to 8, learned counsel for respondent Nos.3 to 8 would

submit that the petitioner herein is only claiming that the land in

Sy.No.148/12 paiki situated in Waddepally Municipality based on a

created document No.4425 of 2010, dated 04.08.2010 with a new survey

number which is not in existence. He is creating litigation despite the

decree passed by the Court below in O.S. No.125 of 2007 stating that

respondent No.3 is the absolute owner and possessor of the land

admeasuring Ac.0-09 cents in Sy.No.148 paiki having purchased the

same vide registered document in the year 1987. A house number 8-83

was also allotted by the Gram Panchayat, Waddepally during 2007 and

2011. Except a single created document No.4425 of 2010, no other

document available with the petitioner to prove his title and that the

survey number which was mentioned does not exist in Waddepally

Municipality.

iii) With the above said submissions, the learned counsel sought to

dismiss the writ petition.

6. Analysis and finding of the Court:

i) The aforesaid rival contentions would reveal that there are civil

disputes pending between the petitioner and the unofficial respondents.

In view of the same, this Court cannot decide title/rights of the parties

under Article - 226 of the Constitution of India. The issue, therefore, to

KL,J W.P.No.328 of 2021

be decided is whether the unofficial respondents are making construction

without obtaining permission from respondent No.2?

ii) It is main contention of the learned counsel for the petitioner

that the unofficial respondents are making structures un-authorizedly

without obtaining permission from respondent No.2 Municipality. A

perusal of the entire material including the notice dated 28.06.2021

issued by respondent No.2 would reveal that the unofficial respondents

have erected the iron tin sheds unauthorizedly without obtaining

permission. During the course of arguments, learned counsel for

respondent Nos.3 to 8 has fairly conceded that there was no permission

from respondent No.2 municipality to make structures in the subject

property. In the counter filed by respondent Nos.3 to 8, there is no

mention about any permission obtained by them from respondent No.2.

As discussed supra, respondent No.2 has already acted upon the

representation / complaint dated 21.12.2020 submitted by the petitioner

herein by issuing notice dated 28.06.2021, seizing the unauthorized

construction. He has filed copy of the said notice along with

photographs. In view of the same, the unofficial respondents shall not

proceed with the erection of temporary structures without obtaining any

permission from respondent No.2.

7. Conclusion:

i) The present Writ Petition is accordingly disposed of directing

respondent No.2 to consider the representation dated 21.12.2020

submitted by the petitioner and take further action in accordance with law

KL,J W.P.No.328 of 2021

pursuant to the notice dated 28.06.2021 by putting the petitioner as well

as unofficial respondents on notice and affording them an opportunity of

hearing, within a period of four (04) weeks from the date of receipt of a

copy of this order. However, liberty is granted to the parties to decide

the title over the subject property in a Court of law. Liberty is also

granted to respondent Nos.2 to 8 to make constructions after obtaining

the permission from respondent No.2. It is made clear that this Court has

not expressed any opinion with regard to the title of the parties.

ii) However, in the circumstances of the case, there shall be no

order as to costs.

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

petition shall stand closed.

_________________ K. LAKSHMAN, J 25th November, 2021 Mgr