Smt. Azmath Nafees Fatima vs The State Of Telangana And 4 Others
2022 Latest Caselaw 4615 Tel

       THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                  AND
        THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


                   WRIT APPEAL No.553 OF 2022

JUDGMENT: (Per the Hon'ble Sri Justice C.V.Bhaskar Reddy)

       This writ appeal is directed against the order dated

23.08.2022 passed in W.P.No.23668 of 2022 whereby

and whereunder the learned Single Judge has dismissed

the writ petition.

2.     The appellant/writ petitioner filed the writ petition

seeking to issue a Writ of Mandamus declaring the

impugned notice vide proceedings No.3/15/TPS/W10/

C12/KZ/GHMC/2022 dated 10.05.2022 affixed on his

property, describing it as alleged encroachment, as

illegal, arbitrary and contrary to Article 300-A of the

Constitution of India.

3.     The case of the petitioner is that she is the absolute

owner and possessor of property bearing H.No.10-3-

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

Humayun Nagar, Hyderabad, having acquired the same

from her         husband, namely Mohd. Abdul Hameed,

through      a    registered     Gift    Settlement         Deed   dated
                                    2




28.08.2010.          She    submitted        an   application       on

04.10.2010 enclosing required plans and other necessary

documents and sought for building permission from the

respondent corporation. The respondent officials, having

received the said application, have not granted building

permission even after repeated requests. As the

application for building permission has not been

considered within the statutory period of 30 days, the

appellant/writ petitioner has proceeded with the

construction under the deemed provision of the

Hyderabad Municipal Corporation Act, 1955 (briefly, 'the

Act' hereinafter). It is also the case of the petitioner that

when the respondent corporation interfered with the

construction activity, she filed O.S.No.600 of 2011 on the

file of IV Junior Civil Judge, City Civil Court, Hyderabad.

The Civil Court decreed the suit vide judgment and

decree dated 29.08.2011 wherein it has been

categorically observed that the appellant/writ petitioner

has applied for building permission and the respondent

corporation has failed to pass any orders on the said

application within the statutory period and as such, the

appellant/writ petitioner has proceeded with the

construction under the deemed provision under Sections

437 and 440 of the Act. The respondent corporation

having allowed the decree passed by the Civil Court to

attain finality, with a mala fide intention has issued the

impugned notice dated 10.05.2022 under Sections 402

and 405 of the Act alleging that the appellant/writ

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 and

directed to remove the encroachment within 24 hours

failing which the structure would be treated as

unauthorised and further action would be taken for

removal of the encroachment under Section 405 of the

Act. As such, the petitioner prayed to set aside the

impugned notice.

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

respondent corporation wherein it is stated that the

appellant/writ petitioner is not the owner of the said

property nor any valid title is in existence in favour of the

husband of the petitioner and merely relying upon the

Gift Settlement Deed dated 28.08.2010 said to have been

executed by her husband, she has made false claim over

the subject property and O.S.No.600 of 2011 filed by the

appellant/writ petitioner seeking the relief of injunction

simplicitor restraining the respondent corporation from

interfering with the construction in the subject property

does not amount to title suit declaring the ownership in

favour of the appellant/writ petitioner. Further, it is

stated that the appellant/writ petitioner has made a false

claim only to grab the open space meant for public

purpose. It is also stated that the office of the

Superintending Engineer, Hyderabad Circle, Telangana

State Medical Services and Infrastructure Development

Corporation, is intending to construct Basthi Dawakhana

in the subject property and the respondent officials never

tried to interfere or demolish the subject property at any

point of time and prayed for dismissal of the writ petition.

5. A counter affidavit has also been filed by the

General Secretary of respondent No.5/Association stating

that there is an open space admeasuring 2000 square

yards earmarked in the lay out for public use, situated

opposite lane to Safdaria High School and western side of

house bearing Municipal Nos.10-3-15/2 and 10-3-15/3,

Vijay Nagar Colony Road, Humayun Nagar, Hyderabad,

which is being used as Municipal Park by the residents of

the locality for the purpose of morning walk, sports

activities of children etc. The Government has allotted

the said land for the purpose of construction of Basthi

Dhawakhana/Urban Primary Health Centre in the open

space. It is also stated that the Association filed

W.P.No.12210 of 2022 and this Court has granted status

quo orders in I.A.No.1 of 2022 in W.P.No.12210 of 2022

dated 09.03.2022. Despite the said order, on 20.03.2022

the petitioner's husband in high handed manner with the

support of anti social elements constructed a compound

wall within the park under the guise of orders dated

08.03.2022 passed in W.P.No.12154 of 2022. The

appellant/writ petitioner has to prove ownership and title

over the disputed property and the property tax receipts

enclosed by her do not confer any title and as such

sought for dismissal of the writ petition.

6. After hearing the learned counsel on either side and

considering the material on record, the learned Single

Judge dismissed the writ petition vide impugned order

dated 23.08.2022, wherein it has been observed as

under:-

"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."

7. Mr. R.A. Achuthanand, learned counsel for the

appellant, submits that when the respondent corporation

tried to interfere with the very same subject property in

the year 2011, the appellant/writ petitioner was

constrained to approach the Civil Court by filing

O.S.No.600 of 2011 seeking the relief of perpetual

injunction. The Court below, after considering the

documents placed on record, particularly Gift Settlement

Deed executed in favour of the appellant/writ petitioner,

and considering the provisions of the Act whereunder the

appellant/writ petitioner made an application seeking

building permission and the petitioner has proceeded to

make constructions and basing on the evidence on

record, granted injunction restraining the respondent

corporation from interfering with the construction over

the suit schedule property and the respondent

corporation having allowed the judgment and decree to

attain finality, is not entitled to issue the impugned

notice under Sections 402 and 405 of the Act. Much

emphasis laid upon the judgment in O.S.No.600 of 2011

dated 29.08.2011.

8. On the other hand, Mr. N. Ashok Kumar, learned

Standing counsel for the Greater Hyderabad Municipal

Corporation appearing for respondent Nos.2 to 4,

contends that the vendor of the appellant/writ petitioner

has no title for gifting the subject property and the

appellant/writ petitioner has created the documents only

for the purpose of grabbing the property which is

earmarked as park for public purpose. Further, learned

Standing Counsel submits that even though no appeal

has been preferred against the judgment and decree in

O.S.No.600 of 2011, the findings recorded in injunction

suit do not have any bearing when title is in dispute. He

also submits that even assuming that the appellant/writ

petitioner is entitled to make construction as per the

deemed provision of the Act, permission under the

deemed provision is valid for a period of three years

extendable up to six years. Even according to the

petitioner, she submitted an application seeking building

permission on 04.10.2010 and the suit was decreed on

29.08.2011. The deemed provision for granting

permission is applicable for a period of six years i.e., from

the date of decree. Even if the date of decree is to be

taken into consideration i.e., 29.08.2011, the period of

six years lapses by 2017 and after expiry of the said

period, under the guise of injunction order the

appellant/writ petitioner without obtaining any valid

permission is now proceeding with the construction on

the disputed property and as such, she is not entitled for

any relief. Learned Standing Counsel also argued that

the members of respondent No.5/Association has filed

W.P.No.12210 of 2022 stating that the Municipality is

intending to construct Urban Primary Health Centre,

commonly called as Basthi Dhawakhana, in the open

space earmarked in the lay out for park and the said writ

petition was disposed of by this Court directing the

respondent corporation not to use park space for any

other purpose The subject property claimed by the

petitioners therein and the subject property claimed by

the appellant/writ petitioner herein is one and the same

which is meant for public purpose. Further, learned

Standing Counsel states that the respondent corporation

has already demolished the room, gate and compound

wall and thereafter the impugned notice has been issued

under Sections 402 read with 405 of the Act on

10.05.2022 only with a view to provide an opportunity to

the petitioner to make representation. Learned Standing

Counsel further states that the appellant/writ petitioner,

instead of submitting explanation in support of his claim,

only relying upon the findings in the injunction suit,

approached this Court seeking execution of the decree

passed by the Civil Court in writ proceedings under

Article 226 of the Constitution of India and strongly

supported the reasoning given by the learned Single

Judge and prayed for dismissal of the writ appeal

9. We have carefully considered the aforesaid

submissions of the learned counsel for the respective

parties and perused the record.

10. It is the case of the appellant/writ petitioner that

she is the absolute owner and possessor of house bearing

No. H.No.10-3-14/B/13, admeasuring 350 square yards,

situated at Humayun Nagar, Hyderabad, by virtue of the

registered Gift Settlement Deed dated 28.08.2010

executed by her husband and that O.S.No.600 of 2011

filed by her before the Civil Court was decreed on

29.08.2011. Except the above two documents, the

petitioner has not filed any documents in support of her

title to establish that she is lawful owner of the subject

property. The appellant/writ petitioner has instituted

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

City Civil Court, Hyderabad, seeking the relief of

injunction simplicitor against the respondent

corporation, but the same does not disclose the schedule

of the property. Further, the appellant/writ petitioner

filed W.P.No.12154 of 2022 before this Court on the very

same set of facts and in respect of the same subject

property relying upon the findings recorded in the very

same suit.

11. From the above, it is clear that the appellant/writ

petitioner, on one pretext or the other, has been

instituting repeated writ petitions before this Court

claiming the subject property without enclosing the

documents in support of her claim more particularly the

documents relating to the title of the property. There is a

serious dispute whether the subject property is forming

part of the open space earmarked for public park in the

lay out approved by the municipal corporation or the

property belongs to the appellant/writ petitioner as

claimed in the injunction suit. The appellant/writ

petitioner, instead of approaching the competent Civil

Court by filing a suit for declaration of title, only to

prevent the authorities from initiating action for removal

of illegal constructions over the subject property, has

instituted the writ petitions before this Court.

12. As contended by the learned Standing Counsel for

the respondent corporation, injunction granted in favour

of the appellant/writ petitioner in O.S.No.600 of 2011,

under the deemed provision of law, is in operation for a

period of three years from the date of decree and

thereafter for an extended period up to six years.

Admittedly, the suit for injunction filed by the

appellant/writ petitioner before the Civil court was

decreed on 29.08.2011. Even if the extended period up to

six years is taken into consideration, the period

prescribed for deemed provision lapsed in the year 2017.

After expiry of the said period, if the appellant/writ

petitioner wants to proceed with the construction, she

has to necessarily submit an application seeking building

permission under Sections 428 and 433 of the Act and in

the absence of making application, the appellant/writ

petitioner is not entitled to the benefit of deemed

provision under Section 437 of the Act. Therefore, if any

construction made in contravention of the provisions of

the Act, without obtaining building permission, is illegal

and the respondent corporation is entitled to remove the

same following the procedure prescribed under the Act.

The appellant/writ petitioner has also not placed any

material before this Court to draw inference that she has

issued a prior intimation notice to the Municipal

Commissioner informing that in view of not granting

building permission she is proceeding with the

construction strictly adhering to the building regulations

and rules made under the Act. In the absence of such

notice being issued by the appellant/writ petitioner, she

is not entitled to proceed with the construction under the

deemed provision of law. Further, as per findings

recorded by the learned Single Judge, subject property of

the writ petition is demarcated as open space vide permit

No.38/33 dated 24.10.1972 to an extent of 2000 square

yards and out of the same, an extent of 292.60 sqm/350

square yards is encroached by the appellant/writ

petitioner by raising illegal constructions and the

remaining extent of 1650 square yards is being utilised

for nursery by the municipal corporation. In this

background of the case, we are unable to agree with the

contentions of the learned counsel for the appellant/writ

petitioner and interfere with the order passed by the

learned Single Judge. Therefore, the writ appeal deserves

to be dismissed.

13. The writ appeal is accordingly dismissed.

Miscellaneous applications, pending if any, shall

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

______________________________________ UJJAL BHUYAN, CJ

______________________________________ C.V.BHASKAR REDDY, J 14.09.2022 JSU