Smt. Azmath Nafees Fatima, vs The State Of Telangana
2022 Latest Caselaw 4207 Tel

      THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                   WRIT PETITION No. 23668 OF 2022

O R D E R:

This Writ Petition is filed seeking the following relief:

" ... to issue a writ, order or direction preferably a writ in the nature of writ of mandamus by declaring the impugned notice vide proceedings No. 3/15/TPS/W10/C12/KZ/GHMC/2022, dated 10.05.2022 on the property of the petitioner describing it as alleged encroachment in Safdaria Colony Park on the western side of house bearing Door No. 10-3-15/2 and 10-3-15/3 situated at Humayun Nagar, Hyderabad, TS on 13.05.2022 as illegal, arbitrary, void and abuse of powers of the Respondents No. 2 to 4 which is in contrary to law and abuse of powers abridging the statue and constitutional right of the petitioner and depriving the rights in contrary to Article 300-A of Constitution of India without following due process of law in the interests of justice."

2. Sri R.A. Atchutanand, learned counsel for the

petitioner submits that the notice dated 10.05.2022 issued by the

respondents under Sections 402 and 405 of the Hyderabad

Municipal Corporation Act, 1955 (for short, 'the Act') is impugned

in the writ petition, whereby it is stated that 'they have received

the objection petition from Azizia Welfare Association on

31.01.2022 that the petitioner has encroached Safdaria Colony

Park on Western side of house bearing Municipal No. 10-3-15/2

and 10-3-15/3, Humayun Nagar, Hyderabad. They have directed

to remove the said encroachment within 24 hours failing which the

structure would be treated as unauthorised and further action for

removal of the encroachment under Section 405 of the Act would

be taken'.

3. Sheet anchor of the submissions of the learned

counsel for the petitioner is that the respondent municipal

corporation has no authority or jurisdiction to issue the notice

dated 10.05.2022 under Sections 402 and 405 of the Act as the

respondent Corporation has suffered a judgment and decree in

O.S.No.600 of 2011 on the file of the IV Junior Civil Judge, City

Civil Court, Hyderabad, dated 29.08.2011. Learned counsel

submits that the petitioner is the absolute owner and possessor of

the property either in whole or in part bearing House No. 10-3-

14/B/13 admeasuring 350 square yards situated at Humayun

Nagar, Hyderabad and they have been in peaceful possession and

enjoyment of the property. It is submitted that the petitioner with

an intention to develop the property, approached the respondent

Corporation and made an Application on 04.10.2010 by

submitting required plans and other necessary documents for the

purpose of obtaining building permission for construction of

ground floor for residential purpose by demolishing the old

structure. It is submitted that the respondent officials have

received the said Application and they neither rejected the same

nor granted permission even after repeated requests made by the

petitioner herein. It is also submitted that since the respondent

officers have failed to pass any orders on the said Application even

after statutory period of 30 days, the petitioner having no other

alternative, decided to proceed with the construction work under

the deemed provision. It is submitted that when the respondent

Corporation is interfering with the construction activity, the

petitioner has filed O.S.No. 600 of 2011 on the file of the IV Junior

Civil Judge, City Civil Court, Hyderabad. It is submitted that the

Court below has decreed the said suit. The Court below has

categorically observed that the petitioner herein who is the plaintiff

in the suit made an Application by submitting building Application

under Ex.A2 for grant of permission, but the defendant

Corporation failed to pass any orders within the stipulated period

on her Application and the petitioner proceeded with the

construction under deemed provision by issuing notice under

Sections 437 and 440 of the Act. Since there is no written

statement from the defendant Corporation the allegations of the

plaintiff remained unchallenged and proved basing on Exs.A2 and

A3. When the Corporation failed to disapprove the building

application within the stipulated period, the applicant is entitled

for the benefit under the deemed provision and she can make

construction but should not contravene any of the provisions of

the HMC Act or building byelaws there under as the Corporation is

an authority to regulate and mandate the construction in twin

cities and therefore, it is not proper to pass an unrestrictive

injunction against it. Hence, the suit was decreed by granting

perpetual injunction restraining the defendant Corporation, its

employees, subordinates from interfering with the construction in

the suit schedule property so far as they are in accordance with

the submitted plan and provisions of the HMC Act and building

byelaws.

Learned counsel for the petitioner submits that by

virtue of the judgment and decree, the respondent corporation is

precluded from interfering with the petitioner's possession with

regard to the building or the construction and they have failed to

prefer an Appeal against the said decree and judgment. He relied

on a judgment of the Apex Court in Sree Madana Gopalaswami

Varu of Ballipadu rep. by the Executive Officer R.

Ramanujayya v. Vanga Padmaraju1, wherein, in paragraph 4, it

is held as under:

" The next contention that falls to be noticed is that the rule of res judicata is not available to the plaintiff who has obtained only an exparte decree. I do not think this contention can succeed. An exparte decree is as much a decree on merits as a decree obtained after consent. The definition of "decree" in section (2) C.P.C. equally comprehends both these classes of decrees. There is nothing in Section 11 C.P.C. which renders it inapplicable to exparte decrees. Reliance has been placed by the learned counsel for the respondents on the words "heard and finally decided"

19634 SCC Online AP 173

occurring in Section 11 C.P.C. But these words do not seem to be of assistance to him. Where summons in the suit duly issued to the defendant, but he did not take opportunity of appearing and contesting the suit and the suit was decided against him in his absence, it cannot be said that it is not a case a "heard and decided" within the meaning of Section 11 C.P.C., vide Radhamohan v. Eliza and Hilt. A decision of a Division Bench of Bombay High Court in Baldevdas v. Mahantlal points even more strongly in the same direction. It states the law as follows.

" It is perfectly clear and by now well established that an ex parte decree can operate as res judicata because an exparte decree is a decree on merits. The Court passing the decree hears the case on merits, finally decides it and passes the decree. The only difference between an ex pate decree and a decree in invitum is that when an ex parte decree is passed, the defendant is absent; but an ex parte decree is as much on merits as a decision in invitum."

Learned counsel submits that the respondent corporation has

prejudged the issue and decided that the said place is a park and

issued this notice under Sections 402 and 405 of the Act without

jurisdiction. Learned counsel further submits that as per the

Municipal Corporation of Hyderabad (Layout) Rules, 1965, Rule

10-A stipulates that "all the roads and open spaces such as parks

and play grounds earmarked in accordance with these rules in a

lay out, which is approved by the Corporation shall automatically

stand transferred to free of cost; and vest with the Corporation free

from all encumbrances. After such vesting, the Corporation shall

maintain all such open spaces or the purposes for which they have

been earmarked." Learned counsel submits that this particular

clause has been inserted by Amendment dated 16.04.1994.

Further, relying on Rule 19, it is submitted that "the roads so

developed with amenities as per specifications and sites reserved

for public purpose viz. park, playground shall be conveyed at his

cost through a registered deed to the Corporation of works and no

compensation should be claimed towards the land covered by

roads, parks and playgrounds while agreeing to construct shopping

centre and bus stops as per the layout."

According to the learned counsel, the first document

i.e. agreement of sale is dated 17.03.1964, sale deed dated

25.09.1997 and subsequent gift settlement deed is dated

28.08.2010. He submits that the predecessor-in-title of the

petitioner's husband is in possession of the property from 1967

based on an agreement of sale and he executed a sale deed in

favour of petitioner's husband, thereafter by way of a gift deed

executed by her husband, petitioner has become the owner of the

property. Learned counsel submits that by any stretch of

imagination, it cannot be held that the property belongs to the

municipal corporation and it is earmarked as park as per the

layout. He submits that lay out is of the year 1972. According to

him, amendment to Rule 10-A is of the year 1994. He submits

that there should have been a conveyance deed in favour of the

Corporation. He further submits that without any of these

formalities, the respondent Corporation cannot prejudge the issue

stating that the land is earmarked as park. Further, it is

submitted that if the Association or the municipal corporation

disputes the title of the petitioner, the remedy available to them is

to file a suit for declaration and by way of a summary proceedings

by issuing notice under Sections 402 and 405 of the Act, they

cannot evict the petitioner. He submits that the petitioner's

husband's vendor as well as the petitioner have been paying

municipal taxes, water cess etcetera which shows their

longstanding possession.

4. A counter-affidavit has been filed on behalf of the

respondent Corporation. It is stated that the vendor of the

petitioner has no title for gifting the said property and the

petitioner has created the documents only for the purpose of

grabbing the subject property which is a park meant for public

purpose. Learned Standing Counsel for the Corporation Sri N.

Ashok Kumar submits that though no Appeal is filed against the

judgment and decree in O.S.No. 600 of 2011, it is not a suit for

declaration and the Court has only considered with regard to the

deemed permission and the petitioner cannot take advantage of

the same. Further, it is submitted that the suit is of the year 2011

but the construction is made in 2022. Even assuming that as per

the decree, the petitioner is entitled to make construction as per

the deemed clause, he submits that permission is valid for a

period of three years and later, the period is extended up to six

years. He submits that even according to the petitioner, she has

made an Application seeking building permission on 04.10.2010

and the suit was decreed on 29.08.2011. According to him, even if

the date of decree is to be taken into consideration i.e. 29.08.2011,

three-year period will lapse by 2014. He submits that now the

petitioner has started making construction in the year 2022.

Learned Standing Counsel submit that Azizia Welfare Association

has filed Writ Petition No. 12210 of 2022 stating that the

municipality is constructing Basti Dawakhana / Urban Primary

Health Centre in an open space earmarked in the layout as park.

It is submitted that the said Writ Petition was disposed of by this

Court with a direction to the Municipal Corporation not to use the

park space for any other purpose. It is submitted that the subject

property of the present Writ Petition is also part of the said park

which is meant for public purpose. He submits that the

respondents have already demolished the illegal construction of

room, compound wall and gate in the subject property on

31.03.2022 and 13.04.2022. Thereafter, they have issued the

notice under Sections 402 and 405 of the Act on 10.05.2022. It is

submitted that a reply was given by the petitioner on 16.05.2022

by enclosing the interim order dated 14.05.2022 in the present

Writ Petition. Learned Standing Counsel submits that the

petitioner has encroached the park place and got constructed the

compound wall, room and gate which is not as per the alleged plan

as mentioned by the petitioner in O.S.No. 600 of 2011 and the

respondent officials are duty-bound to take necessary action

against the said illegal construction in the subject property which

is a park and meant for public purpose.

5. Along with the counter, the Corporation has also filed

the layout and also the photographs to show that earlier they have

demolished the structures raised by the petitioner. Learned

Standing Counsel submits that by order dated 15.06.2022, this

Court has issued a direction to the respondents to conduct survey

by giving notice to the petitioner and file a report before this Court.

It is submitted that the respondent Corporation after conducting

survey, has filed a report before this Court stating that 'the

petitioner is claiming title over the subject property by virtue of a

registered gift deed dated 28.08.2010 vide document No. 3107 of

2010 and the gift deed was executed by the husband of the

petitioner and the husband of the petitioner has no title of the

property to transfer the same to the petitioner. It is also stated that

they have conducted the survey on 27.06.2022 in the presence of

the petitioner by taking measurements and observed that there is

an open land surrendered by compound wall constructed by GHMC

abutting to 30' wide road and adjoining to this there is an open land

behind premises bearing H.No. 10-3-15/2 and 10-3-15/3,

Humayun Nagar, Hyderabad which is part and parcel of the park

land surrendered by compound wall with gate constructed by the

petitioner and also AC shed room has been constructed to an extent

of 167 sft. Further it is noted that at site, a room is constructed

towards south west corner of the open land has been demolished by

the GHMC. The petitioner herein has not submitted any link

documents pertaining to ownership to the respondent Corporation

for verification at the time of inspection. As per the approved layout

vide permit No. 38/33, dated 24.10.1972, the subject site is

demarcated as open space with greenery to an extent of 2000 sq.

yards out of which the petitioner herein has encroached to an extent

of 292.60 sqm/ 350 sq. yards. Further, the remaining portion of the

open space i.e. 1650 sq yards is being utilised for nursery by the

GHMC'.

Learned Standing Counsel has also filed the photographs along

with the counter in support of his contention.

6. A counter affidavit along with vacate stay petition has

also been filed on behalf of the unofficial respondent. It is stated

that on 18.02.2022, few people gathered in petitioner's' locality

and when the 5th respondent association enquired, it has come to

the knowledge of the 5th respondent association that Basti

Dawakhana / Urban Primary Health Centre is being constructed

in the premises of the municipal park. It is stated that the

unofficial respondent has filed Writ Petition and initially status

quo order was granted and later the said Writ Petition was

disposed of. It is stated that again on 20.03.2022, one Mohammed

Abdul Hameed claiming to be husband of the petitioner came to

the subject municipal park along with 20 to 30 persons including

unsocial elements and constructed a wall within the park and

fixed a gate by engaging about 25-30 labourers. It is submitted

that when the people have questioned the illegal activity, she filed

Writ Petition No. 12154 of 2022 and obtained orders from this

Court under the guise of the said orders, they have encroached

upon the public park and without obtaining permission,

constructed the compound wall and a gate within the premises of

municipal park. It is submitted that the unofficial respondent has

approached the respondent Corporation and gave a representation

to Respondents No.2 to 4 dated 24.03.2022. It is submitted that in

spite of order of status quo passed in Writ Petition No. 12210 of

2022, when the petitioner is making construction, the Corporation

has not taken any action on the petitioner. It is submitted that the

title of the petitioner itself is at doubt as the petitioner is relying on

the gift deed executed by her husband and no link documents are

filed. Further, it is submitted that according to the petitioner, her

property is bearing H.No. 10-3-14/B/13, having PTI No.

1071001408 stands in the name of one Thamveer Dass Hot Chand

in the municipal records. According to the petitioner, her

husband purchased the disputed plot from Mirza Yaseen Ali on

25.09.1997 but interestingly neither her husband nor his vendor

name is mutated in the municipal records. It is also submitted

that the averment that water connection was obtained in respect

of property bearing CAN No. 0321/45366 and water consumption

charges are being paid by the petitioner is false, baseless and a

wrong statement. On this ground alone, the Writ Petition is liable

to be dismissed with exemplary costs since the document ie. Ex.P3

is having CAN No. 032145366 which is customer ledger printed on

15.10.2015 and as per the said document, consumer name is

Tanwani Das Hot Chand and premises No. 10-3-14/B/13 and

date of connection is 17.07.1985 and connection status is shown

as 'meter disconnected'. Learned counsel submits that the

petitioner could not make out a case seeking interference of this

Court under Article 226 of the Constitution of India.

7. In reply, learned counsel for the petitioner submits

that the property referred to by the unofficial respondent is not the

property which is owned by the petitioner and both are distinct

and separate. It is submitted that the petitioner has not made any

construction recently. He submits that when the respondent

barged into property on 26.02.2022, demolished the room, gate

and compound wall, then the petitioner filed Writ Petition No.

12154 of 2022.

8. Having heard the learned counsel on either side,

perused the entire material on record. The argument of the learned

counsel for the petitioner is that by judgment and decree passed

by the civil Court in O.S.No. 600 of 2011, the Court has

incidentally gone into the petitioner's title to the property and held

that the petitioner is in possession of the property and the

respondents failed to file any Appeal against the said judgment

and decree. Having failed to question the said judgment and

decree, the respondents cannot issue such a notice under Sections

402 and 405 of the Act and the same is without jurisdiction.

Learned counsel has drawn attention of this Court to the judgment

and decree passed by the Court. In the entire judgment and

decree, there was no reference with regard to prima facie title to

the property or with regard to possession of the petitioner. The

only issue that was considered by the Court is with regard to the

Application made by the petitioner seeking building permission

and the defendants have not filed written statement under Section

437 of the Act they have not passed any order rejecting the

Application of the petitioner. When once they have not rejected it,

within thirty days from the date of application, it amounts to

deemed provision. As such the petitioner is entitled to make

construction and further the respondents cannot interfere with the

construction. While passing the said judgment and decree, the

Court was conscious of the fact that it is the duty of the municipal

corporation to regulate and mandate the construction in twin

cities and therefore, it is not proper to pass unrestrictive

injunction. Then the Court had granted injunction restraining the

Corporation from interfering with the construction so far as they

are in accordance with the plan and the provisions of the Act and

building byelaws. The earlier round of WPs. that are filed and the

photographs which shows that the entire land is open and when a

Writ Petition has come up before this Court stating that some

constructions are taking place in the said park land, and the

Municipal Corporation is constructing a Basti Dawakhana /

Urban Primary Health Centre initially, this Court has granted the

order of status quo. Thereafter, basing on the submission made

on behalf of the municipal corporation that it is an open land and

they are only cleaning the said land and except that they are not

making any construction, the Writ Petition was disposed of on

30.03.2022. Basing on that, this Court can safely conclude that

there was no construction as on that date.

9. Now as far as the submission of the learned counsel

with regard to the judgment and decree, this Court is of the

considered opinion that the Court below has not dealt with either

the petitioner's right to property, title or the petitioner's

possession, but what fell for consideration is only with regard to

construction activity. If that has to be taken into consideration,

any permission that is granted, the construction has to be made

within three years from the date of permission and now, it is six

years. The petitioner made an Application on 29.08.2011 and if

three years have to be calculated, by 28.04.2014, the said period

lapsed. In the order of the civil Court, it has specifically observed

that the petitioner has to make the construction as per the

provisions of the HMC Act. It appears that the petitioner has

started construction in the month of March 2022. Learned counsel

for the petitioner denied the same. The petitioner has not filed a

scrap of paper before this Court, the plan she has annexed to the

application and presented before the respondents. The

photographs filed before this Court show that it is an open land

and on the wall of it, municipal corporation name is found. When

a person encroaches a public road or public property, no prior

notice is required under Section 405 of the Act. Even in the

survey report, it is mentioned that except a gift deed, the petitioner

has not filed any other document. If the petitioner is asserting that

she is the owner of the property, when the corporation basing on a

layout of 1972 is stating that it is earmarked for park and when

survey was conducted, the petitioner ought to have submitted the

link document /relevant document and the petitioner has failed to

submit such documents. Though it is stated that petitioner's

husband has a registered sale deed, such document is not filed

before this Court and in the gift deed also, there is no mention

about the same.

10. In the course of arguments, learned counsel for the

petitioner submitted that the source of title to the petitioner's

husband who has executed a gift deed, it is submitted, from the

original owner the vendor of petitioner's husband had an

agreement of sale with possession, he executed a sale deed in

favour of the petitioner's husband and he in turn has executed the

gift deed. It is submitted that as per Section 53-A of the Specific

Relief Act, he can protect his possession and long standing

possession cannot turn into encroachment. The petitioner, who

has come to the Court saying that she is the owner of the property,

has to place the relevant documents on record. Except relying on

the judgment and decree passed in O.S.No. 600 of 2011 and the

gift deed, there is no other document to show the ownership of the

petitioner. Whereas the GHMC relying on the layout of 1972 has

come up before this Court saying that the said land is earmarked

for park. By conducting survey or by any summary procedure,

respondent corporation cannot decide the issues that are raised by

the petitioner. Further, this Court is not convinced with the

material placed before the Court with regard to the petitioner's

possession or ownership. Further, the judgment and decree

passed by the civil Court in O.S.No. 600 of 2011 cannot preclude

the respondents from issuing the notice impugned. Hence, this

Court finds no irregularity in issuing the notice and the

respondent Corporation has jurisdiction to issue the said notice.

11. The Writ Petition is accordingly, dismissed. There

shall be no order as to costs.

12. The Miscellaneous Applications, if any shall stand

closed.

-----------------------------------

LALITHA KANNEGANTI, J 23rd August 2022

Issue CC tomorrow.

ksld