Netaram Gupta And Another vs The State Of Telangana And 6 Others
2022 Latest Caselaw 3726 Tel

          THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER

                 WRIT PETITION No.1801 of 2021

ORDER:

This writ petition, under Article 226 of the Constitution of India,

is filed by the petitioners, wherein, the following prayer is made:

"...to issue Writ, order or Direction more particularly one in the nature of writ of mandamus, by declaring the inaction of the respondent Nos. 2 to 4 in not acting upon the complaint dated 12.01.2021 to demolish the illegal constructing being carried out by respondent Nos.5,6 & 7in premises bearing No.21-3-754 Chelapura, Hyderabad, without obtaining any sought of permission and further direct respondent Nos. 2 to 4 to demolish the illegal construction being carried out by respondent Nos. 5, 6 and 7 in premises bearing No. 21-3-754, Chelapura, Hyderabad, as per complaint dated 12.01.2021 and to pass such other order or orders..."

2. Heard Sri A.L.Raju, learned counsel for the petitioners, Sri

Pasham Krishna Reddy, learned Standing Counsel for GHMC

appearing for official respondent Nos.2 to 4, Sri V.Ramakrishna

Reddy, learned counsel for unofficial respondent Nos.5 to 7 and

perused the record.

3. The case of the petitioners and the submissions made on their

behalf are as follows:

"The mother of the petitioner No.1 is the absolute owner and

possessor of the premises bearing No.21-32-754/1, Chelapura,

Hyderabad. Petitioner No.2 and his other family members are the

owners and possessors of premises bearing Nos.21-3-765 and 21-3-

755, Chelapura, Hyderabad. The unofficial respondents are the

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owners and possessors of the premises bearing Nos.21-3-754,

Chelapura, Hyderabad, which is adjacent to petitioner No.1's

property and opposite to Petitioner No.2's property. Unofficial

respondents made illegal constructions in their property bearing

No.21-3-754, Chelapura, Hyderabad, by digging cellar and raising

commercial structure in the ground floor and five upper floors

without requisite permission and without leaving proper setbacks.

They also constructed walls on the load-bearing wall of petitioner

No.1's property. Unofficial respondents have also erected an

electricity transformer on the first floor of the building, which is only

two feet away from the dividing wall. Though the petitioners made

number of complaints to the authorities concerned, no action has

been taken so far. Unofficial respondents also grabbed a part of road

on the eastern side, which is passage to the house of petitioner No.1.

Due to the constructions raised by unofficial respondents on the wall

of house of petitioner No.1, the said wall became over burdened and

may collapse at any time, endangering the lives of the people

residing therein. Though the petitioner No.1 made several

complaints to various authorities, till now, nobody inspected the

subject premises. Unofficial respondents have speeded up the

construction activity and have erected shutters to the ground floor.

They have also raised five floors on the southern side wall of the

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petitioner No.1's house, which is more than 100 years old. The load-

bearing wall contain wooden logs on which, the roof is laid with lime

mortar. Hence, the structures raised on the said wall may collapse

at any time. Further, the petitioner No.2's house is located on the

southern side of the premises of the petitioner No.1. The passage to

both the premises is one and the same, which is being grabbed by

the unofficial respondents on the eastern side. Further, this Court,

on 09.07.2021, directed the official respondent No.3/Deputy

Commissioner, GHMC, to forthwith inspect the premises in question

and verify whether the constructions which are raised by unofficial

respondents from the ground level are new constructions and file a

detailed counter affidavit, duly answering whether permission was

granted, and if so, whether the building in existence is made in

violation/deviation of the sanctioned plan, what are the deviations,

whether the entire structure is new one or parts of the building are

constructed on an old structure, and also what action the official

respondents propose to take insofar as the unauthorized

constructions are concerned. The GHMC filed additional counter

affidavit without stating anything with regard to the queries raised by

this Court in the order, dated 09.07.2021. Though this Court

directed the Deputy Commissioner to visit the subject premises,

instead, the Assistant City Planner visited the subject premises, who

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threatened the petitioners to withdraw the writ petition failing which,

they would demolish the structures treating them as illegal. Further,

the GHMC, in its counter, did not mention anything about the illegal

constructions raised by the unofficial respondents. Till date, the

unofficial respondents have constructed ground + five upper floors

accommodating 100 new shops, without any parking place. The

entire structure raised by unofficial respondents is new. The GHMC

and the unofficial respondents have suppressed the material facts.

Though the unofficial respondents averred in their counter that the

subject building consisting of ground + five upper floors is in

existence since the last 25 years, it is clearly stated in the three

registered Gift Deeds, through which they are claiming ownership,

that the subject premises consisted of ground + two upper floors

only. The GHMC officials, in hand and glove with unofficial

respondents, have suppressed and concealed the material facts and

misleading the Court. Though the petitioner No.1 submitted a

representation, dated 12.01.2021, to the authorities concerned, no

action has been taken so far and ultimately prayed to allow the writ

petition as prayed for.

4. The official respondent Nos.2 to 4 filed counter affidavit and

additional counter affidavit. Their case and the submissions made on

their behalf are as follows:

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"The writ petition is devoid of merit and not maintainable. The

allegations made by the petitioners against the GHMC are false,

baseless, mischievous and misconceived. The subject building of the

unofficial respondents is an old building to which, building permission

was granted for construction of ground + two floors. At present, the

said building is consisting of ground + four floors, but however, as on

today, no fresh/new constructions are being raised. The petitioners

have also constructed their buildings similar to the unofficial

respondents and all of them are using their respective share, for

commercial and residential purposes. After receiving the compliant

of petitioner No.1, the GHMC officials inspected the subject premises

and noticed that no new/fresh constructions are raised by unofficial

respondents. Further, no cellar has been dug by the unofficial

respondents in the subject premises, as alleged. GHMC is not

concerned with the erection of electric transformer. Further, there is

no encroachment of road by the unofficial respondents, as alleged.

The petitioners also made constructions without leaving setbacks and

all the business people in the area are doing business in the similar

manner. The instant writ petition might have been pressed into

service for resolving personal issues between the petitioners and the

unofficial respondents. As per the directions of this Court vide order,

dated 09.07.2021, the GHMC officials inspected the subject premises

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belonging to the unofficial respondents and enquired with the

adjacent house owners. The unofficial respondents constructed the

said house about 25 years back and it is an old building and several

repairs were made to the said building at various places. The GHMC

officials also noticed that the petitioner No.1's building, which is

adjacent to the building of unofficial respondents, was also

constructed without leaving any setback on all four sides. The stair

case of the petitioner No.1's building is projected on the road. The

building of petitioner No.2 is a three storied building with a big tin

shed on the roof top. Petitioner No.2 refused to come out from the

house to show the building plan and also boundaries. The said

building was also constructed without leaving any setbacks. Further,

the petitioner No.2 stored tobacco products in his building and he did

not allow the GHMC officials to go inside the said building. The

allegation that the unofficial respondents constructed new building

without any permission is incorrect. The unofficial respondents

obtained permission to construct ground + two floors in the subject

premises way back in the year 1995. Due to leakages and damage

to the building, they got repaired the building in all respects. When

the GHMC officials enquired with the local people, they stated that

the unofficial respondents made repairs to the existing building and

also painted the building and there is no encroachment of the public

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road. With regard to erection of shutters, the GHMC officials noticed

that the old shutters were modified/replaced by new rolling shutters.

Further, the petitioner No.2 encroached the public road and made

constructions long back. However, the unofficial respondents also

have not maintained setbacks on par with the neighbouring owners,

including the petitioners. The unofficial respondents undertook repair

works in bathrooms, outer walls, leakages in the top floor and also

the tank area. The allegation of the petitioners that the unofficial

respondents illegally constructed a new building is false and baseless.

After carrying out repair works and colouring, the subject building

may look like a new one, but the entire building is an old building.

When the GHMC officials enquired with the adjacent building owners,

they informed that due to leakages and cracks to the walls and other

problems, the entire building was renovated by filling the cracks and

also removing the taps, fixing the drainage pipe lines and chipping of

the walls. Further, in the entire locality, there is a practice of making

constructions without leaving setbacks. There is no encroachment by

the unofficial respondents into the petitioners' property, as alleged

and there are clear boundaries between the buildings. Further,

unofficial respondents did not encroach the public road, as alleged.

There is no iota of truth in the allegations made by the petitioners.

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There are no merits in the writ petition and the same is liable to be

dismissed."

5. The unofficial respondent No.5 is the father and husband of

unofficial respondent Nos.6 and 7, respectively. He swore to the

counter on his behalf and on behalf of respondent Nos.6 and 7. Their

case and the submissions made on their behalf are as follows:

"The allegations made by the petitioners are false and

frivolous. The allegation that the unofficial respondents are

proceeding with unauthorized constructions in and over premises

bearing No.21-3-754 is absolutely false and concocted. The

unofficial respondents have only carried out repairs to the existing

building substantially, by replacing the old shutters which got

damaged due to rust, apart from laying floor, repairing the cracks,

improving the front elevation, etc. The said structures were in

existence for the last three decades. The petitioners, who are not in

good terms with unofficial respondents, made a complaint to GHMC

officials with false allegations and thereafter filed the instant writ

petition, purely to wreak vengeance. The petitioners cannot use this

Court as a platform for resolving the personal disputes and gain

personally. Filing of this writ petition is nothing but an over-reaching

attempt to blackmail the unofficial respondents. The petitioners

approached this Court with unclean hands by suppressing the true

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facts and with a mala fide intention. In fact, there is no such house

bearing No.21-32-754/1, at Chelapura, Hyderabad, as stated by the

petitioners. The petitioners might be referring to House Number 21-

3-754/1 and it is denied that the mother of petitioner No.1 is the

owner of the said property since 1950. Further, admittedly, the

petitioner No.1 is not the resident of the said house and he has no

locus standi to file the present writ petition. In fact, the petitioner

No.2 is running an industry in the premises bearing Nos.21-3-765

and 21-3-755 and processing tobacco leaves and also manufacturing

tobacco related products, without requisite permission and license.

The unofficial respondents are the absolute owners and possessors of

H.No.21-3-754. There is no truth in the allegation that the unofficial

respondents have started making illegal constructions in their

premises and they have not left proper setbacks and constructed

walls on the load-bearing wall of the petitioner No.1's property.

Further, electric transformer was erected within the premises

belonging to unofficial respondents, after obtaining permission from

the electricity department. Further, the unofficial respondents

neither grabbed a part of the road on eastern side nor the approach

passage to the house of the petitioner No.1. In fact, the said

passage is intact, which has been in existence for more than six

decades. In fact, after purchasing the subject property, certain

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additional constructions were made in the year 1984 as well as in the

year 1993 by obtaining requisite permission from the municipal

authorities. Further, when the municipal authorities highhandedly

intended to demolish the structures under the guise of complaint

made by father of petitioner No.1, the elder brothers of respondent

No.5 filed a civil suit in O.S.No.4450 of 1994 on the file of VII

Assistant Judge, City Civil Court, Hyderabad, against the Municipal

Corporation and the said suit was decreed against the Municipal

Corporation. The existing structures are very old and no fresh

constructions are raised in the said property, as alleged by the

petitioners. Since the old structures received substantial cracks in the

walls and since the shutters have become very weak and got

damaged, the unofficial respondents carried out substantial repair

works even by changing the flooring of the entire building as well as

replacing some of the doors, windows and shutters, which may look

like a new building. In fact, when the unofficial respondents were

making such repairs, the petitioner No.1 approached respondent

No.5 and offered to sell his alleged share of property in H.No.21-3-

754/1 and also stated that his other family members are also willing

to sell the entire property. The unofficial respondents agreed to

purchase the said property if the same is offered at a reasonable

price and if all the family members of petitioner No.1 come forward

Dr.SA, J WP No.1801/2021

and join in execution of the agreement of sale/sale deed. Since the

petitioner No.1 demanded exorbitant price and stated that his other

family members cannot join in execution of the sale deed, the

respondent No.5 had withdrawn from the said proposal. Ultimately,

when the petitioner No.1 could not find any prospective buyer to

purchase his share of property, he finally approached respondent

No.5 in the month of January 2021 and stated that he already made

complaint to the municipal authorities regarding the repairs carried

out by unofficial respondents and threatened him that he would file

cases against the unofficial respondents, with a view to coerce the

unofficial respondents. The petitioners filed this writ petition with a

mala fide intention and by suppressing the true facts. The writ

petition is devoid of merit and is liable to be dismissed.

6. This Court has given anxious consideration to the rival

submissions and examined the record. The grievance of the

petitioners is that the unofficial respondents are making fresh/new

constructions in their premises illegally/unauthorizedly, without

requisite permission from the authorities concerned, without leaving

proper setbacks and by encroaching the public passage. It is also

alleged that the unofficial respondents have constructed wall on the

load-bearing wall of the petitioner No.1's property, which may

collapse any time due to heavy load, endangering the lives of the

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people residing in the said premises. On the other hand, it is the

contention of the unofficial respondents that they have only carried

out substantial repairs to the existing building, by replacing the old

shutters, apart from laying floor, repairing the cracks, improving the

front elevation, etc., and that after carrying out repair works and

colouring, the building may look like a new one, but the entire

building is an old building.

7. In order to ascertain the ground reality, this Court, vide order,

dated 09.07.2021, passed the following order:

In view of the same, respondent No.3-Deputy Commissioner, GHMC, is directed to forthwith inspect the premises in question and verify whether the constructions, which are raised by the unofficial respondents from the ground level, are new constructions, and file a detailed counter affidavit duly answering if any permission was granted; and if so, whether the building in existence is made in violation/deviation of the sanctioned plan; what are the deviations; whether the entire structure is new one or parts of the building are constructed on an old structure; and also what action the official respondents propose to take insofar as the unauthorized constructions are concerned, by the next date of hearing.

Post on 03.08.2021."

8. On 03.08.2021, the learned Standing Counsel for GHMC sought

time to file action taken report in compliance of the order, dated

09.07.2021, and accordingly, the matter was directed to be listed on

06.08.2021. On 06.08.2021, the official respondents filed the report

of respondent No.3-Deputy Commissioner, GHMC, along with some

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photographs before this Court, vide USR No.45060 of 2021 and

sought time to file a detailed counter affidavit. However, the said

report was dated 23.02.2021. i.e., much before the order, dated

09.07.2021, passed by this Court. Thereafter, the official respondent

Nos.2 to 4 filed additional counter affidavit on 13.08.2021, wherein,

it was categorically averred that the unofficial respondents have

constructed the subject house about 25 years back and it is an old

building and due to leakages, several repairs were made to the said

building at various places; Unofficial respondents obtained

permission to construct ground + two floors way back in the year

1995; When the GHMC officials enquired with the local people, they

stated that due to leakages and cracks to the walls and other

problems, the entire building was renovated by the unofficial

respondents by filling the cracks and also removing the taps, fixing

the drainage pipe lines and chipping of the walls and also painted the

building and there is no encroachment of the public road; The GHMC

officials also noticed that the old shutters were modified/replaced by

new rolling shutters; However, the unofficial respondents also have

not maintained setbacks on par with the neighbouring owners,

including the petitioners; The unofficial respondents undertook repair

works in bathrooms, outer walls, leakages in the top floor and also

the tank area; After carrying out repair works and colouring, the

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building may look like a new one, but the entire building is an old

building; In the entire locality, there is a practice of making

constructions without leaving setbacks; There is no encroachment

into the petitioners' property by the unofficial respondents, as alleged

and there are clear boundaries between the buildings. The

respondent Nos.5 to 7 did not encroach the public road, as alleged.

9. Though the petitioners alleged that the unofficial respondents

dug cellar and raised commercial structure in the ground floor and

five upper floors without requisite permission, however, according to

the GHMC officials, nothing was noticed as such upon their inspection

of the subject premises. The petitioners also alleged that the

unofficial respondents constructed walls on the load-bearing wall of

the petitioner No.1's property, but in the counter affidavit, it was

categorically averred that there are clear boundaries between the

buildings. Further, it was alleged by the petitioners that the

unofficial respondents grabbed the public passage and made

constructions, but according to the GHMC officials, the unofficial

respondents neither grabbed a part of the road on eastern side nor

the approach passage to the house of the petitioner No.1. Further,

the right, title and ownership of the unofficial respondents over the

subject premises cannot be decided in this writ petition filed under

Article 226 of the Constitution of India. Though the petitioners

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alleged that the GHMC officials, in hand and glove with the unofficial

respondents, are misleading the Court, there is no material to

substantiate the said submission.

10. Here, it is pertinent to state that the additional counter

affidavit, dated 13.08.2021, is sworn by the Assistant City Planner,

Circle No.9 (S.Z.), GHMC. When a responsible government official

submits some facts to the Court by way of sworn affidavit, the

statements contained therein have to be treated as truthful

representation of the facts, unless proved otherwise, inasmuch as

the said official would be well aware of the consequences for filing

false affidavits under oath. Under these circumstances, the

submissions made by the learned Standing Counsel for GHMC and

the averments in the counter and additional counter filed by official

respondents are taken on record. Further, the photographs filed

along the additional counter affidavit show that the GHMC officials

visited the subject premises. In addition to these, there are many

other factual aspects involved in this writ petition, which cannot be

adverted to under Article 226 of the Constitution of India. In a

recent judgment in Shubhas Jain Vs. Rajeshwari Shivam and

others1, the Hon'ble Apex Court observed that the High Court

exercising its extraordinary writ jurisdiction under Article 226 of the

Decided on 20.07.2021 by the Hon'ble Supreme Court of India in Civil Appeal No.2848 of 2021

Dr.SA, J WP No.1801/2021

Constitution of India, does not adjudicate hotly disputed questions of

facts. Further, it is settled law that if, in a petition filed under Article

226 of the Constitution of India, complicated questions of fact, which

require a regular and full-fledged trial are involved, it is but prudent

that the Court should refrain itself from entertaining such petition

and relegate the party to the normal remedy to obtain redress in a

suit.

11. Further, it is categorically averred in the additional counter

affidavit filed by the official respondents that during inspection, it

was observed that both the petitioners also made constructions

without leaving setbacks on all the four sides and that the stair case

of the petitioner No.1's building is projected on the road and that all

the business people in the area are doing business in the similar

manner and that the instant writ petition might have been pressed

into service for resolving personal issues between the petitioners and

the unofficial respondents, who are not in good terms with each

other. Here, it is apt to state that a person who seeks equity must

come to Court with clean hands. He who comes to a Court with

unclean hands cannot plead equity nor would the Court be justified

in exercising equity jurisdiction in his favour. The process of the

Court cannot be abused for oblique considerations. In any event, a

person cannot use a Court as a platform to wreak vengeance against

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his rival. Personal vendetta will not compel the Court to initiate

action.

12. In view of the foregoing discussion, this Court does not see

any reason to accede to the request of petitioners. The writ petition

is devoid of merit and is liable to be dismissed

13. Accordingly, the writ petition is dismissed. It is needless to

state that if the petitioners are aggrieved by any encroachment of

their property or any damage that is being caused by the acts of the

unofficial respondent Nos.5 to 7, it is open to them to work out the

remedies before competent civil Court.

Miscellaneous petitions, if any, pending in this writ petition,

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

____________________ Dr. SHAMEEM AKTHER, J

15th July, 2022 Bvv