Silver Line Projects Pvt. Ltd. And ... vs The Hyderabad Metropolitan ...
2022 Latest Caselaw 837 Tel

    THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

              WRIT PETITION No. 17201 of 2020
ORDER:

This Writ Petition is filed seeking to declare the action of

the respondent No.1 in entertaining the application from

respondent No.3 and issuing the proceedings in application

No.035391/SMD/ LT/U6/HMDA/16 032020, dated 18.08.2020

even though the layout was approved in favour of the petitioners

in Lr.No.10020/LO/Plg/SHZ/HMDA/2009, dated 13.01.2011,

as illegal and arbitrary.

The case of the petitioners, in brief, is that originally one

Mudavath Lachman Lambada had purchased the land

admeasuring Acs.84.24 guntas situated at Pulimamidi Village,

Kandukur Mandal, Ranga Reddy District, by means of a

registered sale deed bearing document No.375/1964, dated

18.11.1964 from one Smt.Nizamunnisa Begum. The said land

was classified as 'Dasthugarda' and his name was also recorded

in the occupant column and as on 01.11.1973, he was in

possession of the said property. Out of the said land, an extent

of Acs.40-00 of land was sold in favour of the Krishna Raju and

three others by way of three registered sale deeds bearing

document Nos.1273, 1274 and 1275 of 1989 dated 29.04.1989

and also in favour of Smt.Uma Rajeshwari vide document 2 AAR, J W.P. No.17201 of 2020

No.3763/1988 dated 19.11.1988. After the purchase of the

property, the vendors of the petitioners have made an

application before the Revenue Divisional Officer for issuance of

Occupancy Rights Certificate and the same was granted on

30.09.1993 after recording the statement of Mudavath Chinna

Lachanna, who admitted the alienation of the land in favour of

vendors of the petitioners. The 1st petitioner herein purchased

an extent of Acs.40.00 from its vendors by way of an agreement

of sale-cum-GPA with possession vide document

No.11139/2006, dated 21.07.2006. Thereafter, he sold an

extent of Acs.10-00 in favour of petitioner No.2 vide registered

sale deed No.5620/2008, dated 13.06.2008 and further sold an

extent of Acs.5-00 of land in favour of Anil Kishan on 12.06.2008

and further extent of Acs.7.20 guntas in favour of Navayuga

Engineers Company on 22.12.2006. Thereafter, the petitioners

and other purchasers have jointly made an application to

respondent No.1 for granting layout permission and vide letter

No.01/LO/HMDA/Plg/SHZ/2011, dated 13.01.2011. After

grant of layout, the petitioners have fenced the layout with a

compound wall and also sold some plots in favour of third

parties. On noticing that the compound wall was demolished,

petitioners made enquiries and found that Occupancy Right 3 AAR, J W.P. No.17201 of 2020

Certificate was issued in favour of Mudavath Shukil and others

in respect of land to an extent of Acs.12-12 guntas in survey

No.93/2 of Pullimamidi Village, Kandukur Mandal,. It is stated

by the petitioners that at the time of issuance of the certificate

by the Revenue Divisional Officer, the Mandal Revenue Officer,

based on the report of the Mandal Giridwar, has submitted a

report on 14.10.2018 stating that the possession of the

applicants was not identified and they have not shown the land

in their possession in survey No.93/2 and that the land was

divided into survey Nos.93/1 and 93/2 in the year 1971-72.

Thus, it is stated that in view of the said report, the order of the

RDO granting ORC is illegal. While so, the respondent No.3

made an application to respondent No.1 for approval of layout in

the land. In spite of filing objections before respondent No.1 on

14.09.2020, the respondent No.1 is proceeding further in the

matter. It is further averred that in respect of the very same

land in survey Nos.93/2/E to 93/2/RU of Pulimamidi Village,

Kandukur Mandal, Ranga Reddy District, the respondent No.1

had already issued proceedings dated 13.01.2011 and the same

is in force as on today. Without cancelling the said proceedings,

the respondent No.1, based on the application for approval of

layout made by respondent No.3, had issued proceedings dated 4 AAR, J W.P. No.17201 of 2020

18.08.2020, which is not legal and correct. Hence, questioning

the proceedings dated 18.08.2020, the present writ petition is

filed.

Respondent Nos.1 and 2 filed a counter to the effect that

based on the prima facie title and on the application made by

respondent No.3, a draft approval has been granted on

18.08.2020. That after the draft approval was granted, the

objections of the petitioners dated 14.09.2020 were received by

respondent Nos.1 and 2. Thereafter, the respondent authorities

have issued show-cause notice dated 08.10.2020 to respondent

No.3 asking him to submit his explanation on the objection

petition. However, no such explanation/reply is filed till date.

Respondent No.3 filed a counter affidavit along with a

vacate stay petition mainly stating that the land claimed by the

petitioners and the land claimed by respondent No.3 are

altogether different. It is further stated that the petitioners

having admitted that out of the entire extent of Acs.84-24 guntas

of land in survey No.93/2, they have purchased only Acs.40-00

guntas, they cannot make claim over the remaining land. It is

further stated that while issuing the ORC in favour of vendor of

respondent No.3, the authorities have fixed the boundaries by

issuing sketch map. It is further stated that as per the report of 5 AAR, J W.P. No.17201 of 2020

the Mandal Girdawar, Kanduku Mandal, dated 14.10.2018 in

survey No.93/2 there is an excess land of Acs.3-06 guntas over

and above the original extent of Acs.84-24 guntas. Further, the

writ petitioners have filed O.S. No.663 of 2020 on the file of VII

Additional Senior Civil Judge, Ranga Reddy District, against

respondent No.3 and his vendors for declaration of title in

respect of the land to an extent of Acs.4-00 guntas, however, no

injunction order is granted in the said suit. Respondent No.3

also denied to have received any show cause notice from the

respondent authorities, as stated by them in their counter.

Therefore, it is prayed that there are no merits in the writ

petition and the same is liable to be dismissed.

Heard Sri O. Manohar Reddy, learned Senior Counsel,

appearing for Sri S.V. Ramana, learned counsel for the

petitioners, Smt. D. Madhavi, learned Standing Counsel for

HMDA, for respondent Nos.1 and 2, and Sri Tarun G. Reddy,

learned counsel for respondent No.3.

Learned Senior counsel appearing for the petitioners has

contended that the official respondents having approved the lay

out of the petitioners way back in the year 2011, ought not have

again issued the impugned proceedings approving the lay out in

favour of the third respondent, without verifying the ground 6 AAR, J W.P. No.17201 of 2020

position. Learned counsel has further stated that the petitioners

are the owners and possessors of the land to an extent of

Acs.40-00 having purchased the same through registered sale

deeds from the original pattadars and title holders and obtained

Occupancy Rights Certificate (ORC) in respect of the said land in

the year 1993, and thereafter they have applied for lay out

approval to the HMDA in the year 2011 and the same was

granted by HMDA. After a lapse of more than 10 years, on the

application made by respondent No.3, the official respondents,

without conducting any survey or verifying the ground position,

have granted draft approval in favour of respondent No.3 vide

proceedings dated 18.08.2020 and the same is illegal. That

under the guise of the draft layout, respondent No.3 is trying to

encroach into the land of the petitioners. Hence, he prayed to

allow the writ petition setting aside the impugned proceedings

dated 18.08.2020.

Per contra, the learned counsel appearing on behalf of

respondent No.3 has stated that respondent No.3 is the owner

and possessor of the land admeasuring Acs.12-12 guntas in

survey No.93/2. That the vendors of respondent No.3 have

obtained ORC vide proceedings dated 27.05.2019 from the

Revenue Divisional Officer, Kandukur Division, and thereafter, 7 AAR, J W.P. No.17201 of 2020

the draft lay out was obtained from the HMDA. That the

petitioners after filing of the present writ petition have also filed

a suit seeking declaration to the effect that the sale deed

executed in favour of respondent No.3 be declared as null and

void and for other reliefs. That without awaiting the result of the

said suit, the prayer sought for in the present writ petition

cannot be granted. That unless and until the petitioners

succeed in the suit filed by them, no relief can be granted in the

present writ petition.

Heard and perused the material on record.

When the matter came up for admission on 14.10.2020,

this Court has granted interim suspension of the impugned

proceedings for a period of five weeks. Thereafter, the said

interim order was extended from time to time.

On 23.02.2021 after hearing the parties at length, this

Court having come to the conclusion that there is a dispute with

regard to the identity of the subject land and to find out as to

whether there is any overlapping of the land claimed by

petitioner as well as respondent No.3 with one another has

directed the HMDA to conduct survey with the help of the

Mandal Surveyor and file a report before this Court. Pursuant

thereto, HMDA has filed a memo stating that the Tahasildar has 8 AAR, J W.P. No.17201 of 2020

reported that due to the absence of sub-division sketches, it was

not possible for the authorities to conduct survey and demarcate

the survey No.93/2.

After going through the pleadings and also the documents

filed by both the parties, it is found that the land of the

petitioners is abutting the road passing from Pulimamidi Village

to Maheshwaram, as seen from the maps enclosed to the

registered sale deeds dated 27.12.2006, 12.06.2008 and

13.06.2008 relied by the petitioners, whereas as per the layout

permission granted to respondent No.3 and the site map

annexed thereto, the land claimed by respondent No.3 is not

abutting the road passing from Pulimamidi Village to

Maheshwaram, but is located behind the lands claimed by the

petitioners herein. The question as to whether the land claimed

by respondent No.3 is overlapping into the land of the petitioners

or not is a matter which has to be gone into either by the Civil

Court or HMDA before the draft lay out is finalized. This Court

exercising the power under Article 226 of the Constitution of

India cannot go into the disputed questions of fact, as held by

the Hon'ble Supreme Court in the following judgments:

                                   9                                AAR, J
                                                     W.P. No.17201 of 2020

In Lord Shiva Birajman in H.B. Yogalaya vs. State of

U.P.1, the Hon'ble Supreme Court has held that a disputed

question of fact should not be adjudicated upon in the absence

of sufficient pleadings on those facts.

In Indian Bank vs. Satyam Fibers (India) Pvt. Ltd.,2,

the Hon'ble Supreme Court has held that where the judgment,

decree or order has been obtained by allegedly committing fraud

on the Court, it is obliged to decide the question regarding fraud

by recording evidence and in appropriate cases it can recall its

decree or order.

In Sanjay Kumar Jha vs. Prakash Chandra

Chaudhary [CA No.11857-11859 of 2018 SC], the Hon'ble

Supreme Court has held that it is well settled that in

proceedings under Article 226 of the Constitution of India the

High Court does not adjudicate upon affidavits, disputed

question of fact. In general, therefore, a disputed question of

fact is not investigated in a proceeding under Article 226,

particularly where an alternative remedy is available for

example :

 The merits of rival claims to property or a disputed question of title;

1   (2004) 13 SCC 518
2   (1996) 5 SCC 550
                                   10                               AAR, J
                                                     W.P. No.17201 of 2020

 Claim arising out of breach of contract or tort;  Where the petition rests on allegations of malice in fact;  Whether a person is a 'foreigner' within the meaning of the Foreigners Act, 1946, or whether the petitioner was causal labourer or not

Therefore, this Court is not inclined to allow the prayer

sought for in the present writ petition seeking cancellation of the

draft layout issued in favour of the respondent No.3. As it is

stated in the counter filed by respondent Nos.1 and 2 that the

authorities concerned have already issued notice to respondent

No.3, it would be apt for this Court to direct respondent Nos.1

and 2 to verify the exact location of the land claimed by the

petitioners as well as respondent No.3. It is also to be noted that

the petitioners are claiming that only in respect of Acs.40-00

guntas approval has been given vide proceedings dated

13.01.2011 and the same is abutting the road from Pulimamidi

Village to Maheshwaram.

The other contentions raised with regard to the ORCs

issued in favour of the vendors of the petitioner as well as

respondent No.3 are concerned, the same is not the subject

matter of challenge in the present writ petition and it is left open

to the parties to agitate their rights before appropriate Forum in

accordance with law.

                                 11                                 AAR, J
                                                     W.P. No.17201 of 2020

That insofar as the suit filed by petitioners for cancellation

of the sale deed is concerned, the same is the subject matter of

O.S. No.663 of 2020 on the file of VII Additional Senior Civil

Judge, Rangareddy District, and till such time the said suit is

decreed in favour of the petitioners, the sale deeds executed in

favour of respondent No.3 are valid, more so, when the ORC

issued in favour of the vendor of respondent No.3 is still in

subsistence and not cancelled till date.

That insofar as the allegation of the petitioners that

respondent No.3 taking advantage of the draft approval is

interfering with the possession of the petitioners is concerned, it

is a disputed question of fact and the petitioners are free to file

an appropriate application in the pending suit seeking an

appropriate relief to protect their possession and it is not for this

Court to decide as to whether the petitioners are in possession

or respondent No.3 is in possession of the subject lands.

Therefore, HMDA is directed to verify and demarcate the

land claimed by the petitioners as approved vide proceedings in

Lr.No.10020/LO/Plg./SHZ/HMDA/2009, dated 13.01.2011, and

the land claimed by respondent No.3 as per the draft approval,

dated 18.08.2020. If the HMDA comes to a conclusion that

there is no overlapping of the land claimed by respondent No.3 12 AAR, J W.P. No.17201 of 2020

with that of the land of the petitioner, the final approval shall be

issued in accordance with law. The HMDA is directed to

complete the enquiry and pass necessary orders, as

expeditiously as possible, preferably, within a period of eight

weeks from the date of receipt of a copy of this order.

With the above directions, the writ petition is disposed of.

However, it is made clear that any observations made in this

order are only for the purpose of disposing of the present writ

petition. The HMDA, quasi judicial authority, and Civil Court

will decide the issue pending before them independently

uninfluenced by the observations made in the present writ

petition.

Miscellaneous petitions pending in this writ petition, if

any, shall stand closed. There shall be no order as to costs.

________________________ A.ABHISHEK REDDY, J Date : 22-02-2022.

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