Telangana High Court
Kachakayala Mallesham vs The State Of Telangana on 27 December, 2023
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.34669 of 2023
ORDER:
This Writ Petition has been filed for issuance of Writ of
Mandamus declaring the action of respondents No.3 & 6, more
particularly the 3rd respondent, in not considering the
representation submitted by the petitioner, dt.24.05.2023 and
09.10.2023, bringing to the notice of the 3rd respondent the
unauthorized and illegal construction work being carried by
respondents No.7 & 8 in plot admeasuring 242 sq. yards in survey
No.537/A, 538/A, 540/A and 541/A situated at Karimnagar
Revenue Village of Karimnagar Mandal and District, forming part of
663 sq. yards situated in Laxminagar Locality near Old Power
House, Karimnagar Revenue Mandal, belonging to the petitioner,
as being illegal, arbitrary, oppose to principles of natural justice
and violation of Article 300A of the Constitution of India and in
abdication of powers conferred under the Telangana Municipalities
Act, 2019 (for short 'the Act').
2. Heard learned counsel for the petitioner, learned
Government Pleader for Municipal Administration & Urban
Development Department appearing on behalf of respondents No.1
& 4, Sri K.Prabhakar Rao, learned Standing Counsel appearing on
behalf of respondents No.3 & 5, learned Government Pleader for
Home appearing on behalf of respondent No.6, and with the
consent of the counsel appearing for the parties, the Writ Petition
is taken up for hearing and disposal at admission stage.
3. Having regard to the manner of disposal of the Writ Petition
at the admission stage, and the lis involved in this Writ Petition,
this Court is of the view that notice to unofficial respondents No.7
& 8 is not necessary for adjudication of the present Writ Petition.
4. Petitioner contends that originally land in Survey Nos.537/A,
538/A, 540/A and 541/A situated at Karimnagar Revenue Village
of Karimnagar Mandal and District was jointly purchased by
petitioner's father and others; that the said land was partitioned
and on account of the settlement arrived at between the
petitioner's father and joint owners, the petitioner's father was
allotted plots bearing No.1, 18, 19, 20, 21, 22, 25 to 28; that the
petitioner's father had sold some of the said plots for meeting his
necessities; that, thereafter, the petitioner's father executed a Gift
Settlement Deed, dt.15.03.2015, in favour of the petitioner in
respect of plots bearing Nos.26 to 28 in all admeasuring 663 sq.
yards.; and thus, the petitioner has become the absolute owner
and is in possession of land admeasuring 663 sq. yards forming
part of survey No.537/A, 538/A, 540/A and 541/A situated at
Karimnagar Revenue Village of Karimnagar Mandal and District.
5. Petitioner further contends that the unofficial respondents
without obtaining any permission for construction have started
digging trenches in the aforementioned land of the petitioner,
whereupon the petitioner had approached the 3rd
respondent authority and submitted representation,dt.24.05.2023
and 09.10.2023 bringing to the notice of the said authority the
unauthorized and illegal construction made/being made by the
unofficial respondents; and that in spite of the petitioner submitted
the aforesaid representations, no action is taken. Hence, the Writ
Petition.
6. Per contra, learned Standing Counsel appearing on behalf of
the 3rd respondent has placed before this Court, written
instructions, dt.21.12.2023, under the signature of the
Commissioner of the 3rd respondent-Municipality. By the aforesaid
written instructions, it is stated that the 7th respondent had
initially obtained certificate of registration under Section 174(1) of
the Act on 29.12.2022 for construction of a building; and that
subsequently, the said certificate of registration obtained by the 7th
respondent was revoked.
7. Learned Standing Counsel by placing reliance on the
aforesaid written instructions further submits that there have been
disputes with regard to the subject property being claimed by the
petitioner; that the unofficial respondent No.8 had submitted a
copy of the judgment in a civil suit filed by the petitioner herein,
vide O.S.No.77 of 2009, wherein it has been held that the
petitioner, who had instituted the aforesaid suit is not entitled for
any relief, much less the equitable relief of injunction, and the suit
instituted by the petitioner has been dismissed; and that therefore,
the claim of the petitioner that the respondents No.7 and 8 have
encroached into his property and are digging trenches, without any
permission, cannot be looked into by the authorities.
8. I have taken note of the respective contentions urged.
9. Though the 3rd respondent, by the written instructions as
furnished to the learned Standing Counsel, has stated that initially
7th respondent had obtained the certificate of registration on
29.12.2022, for construction of a building under Section 174(1) of
the Act, and thereafter, the said certificate was revoked, the date
on which the said certificate of registration was revoked, is not
mentioned in the said written instructions.
10. Further, the 3rd respondent-authority, who is required to
ensure that no construction is made without obtaining any valid
permission from the said authority, by its written instructions,
speaks about the title dispute between the petitioner and the 8th
respondent, instead of informing the Court as to whether the
construction being made by the 8th respondent is by obtaining a
valid permission/sanction or otherwise.
11. This Court in K.Pavan Raj v. The Municipal Corporation of
Hyderabad 1 (following the decision of another Division Bench of
this Court in Hyderabad Potteries Private Limited v. Collector,
Hyderabad 2) had held that the authorities while granting building
permission cannot adjudicate title/boundary dispute and are
required to see prima facie title and possession. However, on
account of dismissal of the suit instituted by the petitioner would
not make the construction being carried out without obtaining
permission/sanction, a valid construction.
12. Thus, the action of the 3rd respondent in furnishing the
written instructions in the above manner without addressing the
issue concerned, in the considered view of this Court is highly
deplorable and cannot to be countenanced.
13. Further, the non-mention in the written instructions as to
the construction being made by respondents No.7 & 8 is under a
valid permission/sanction from the authorities concerned or
otherwise, in the considered view of this Court would only go to
show that the said construction is being made without any
2008(1) ALD 792
MANU/AP/0361/2001=2001(3) ALD 600
permission/sanction, requiring action to be initiated by the 3rd
respondent-authority.
14. Since the petitioner had submitted representation on
24.05.2023 and 09.10.2023 with regard to the alleged illegal
constructions being made by the unofficial respondents No.7 & 8
without any valid permission and that it is not shown to this Court
by the 3rd respondent that the said construction made by the
unofficial respondents No.7 & 8 is by obtaining any valid
permission/sanction from the authorities concerned under the
provisions of TS-bPASS Act, 2020 read with the Telangana
Municipalities Act, 2019, this Court is of the view that the 3rd
respondent-authority is to be directed to take necessary action
with regard to the unauthorized and illegal construction
made/being made by the unofficial respondents No.7 & 8 by
considering the representations submitted by the petitioner as
noted above, within a period of two (02) weeks from the date of
receipt of a copy of this order, by following due process of law.
15. Subject to the above directions, this Writ Petition is disposed
of. No order as to costs.
16. It is made clear that this Court has not expressed any
opinion on the merits of the matter.
17. Consequently, miscellaneous petitions, if any, pending shall
stand closed.
_____________________
T. VINOD KUMAR, J
27th December, 2023.
gra
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.34669 of 2023
Dt.27.12.2023
gra
