Telangana High Court
Battula Usha vs The Principal Secretary on 12 February, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.6352 of 2023
ORDER:
This Writ Petition is filed with the following prayer:
"For the reasons stated in the accompanying affidavit, the
petitioner prays the Hon'ble Court may be pleased to issue Writ, order
or direction, more particularly one in the nature of Writ of mandamus,
declaring the action of the Respondent Authorities more specifically
Respondent Nos.3 and 4 Authorities in not demolishing the
unauthorized constructions made without obtaining any building
permission from the authorities over the petition scheduled properties
to an extent of 150 sq. yds. in Plot No.40/Part and another 150sq.yds.
i.e., in Plot No.39 100 sq. yds. and Plot No.40/Part 50 sq.yds. both
are adjacent plots total admeasuring 300 sq.yds situated in
Sy.No.55/అఆ At Kondapur Village, Serilingampally Mandal
R.R.District, as illegal, arbitrary, highhanded and violation of Article 14
of the Constitution of India and consequently direct the Respondent
authorities more specifically Respondent Nos.3 and 4 to demolish the
unauthorized constructions made over the petition scheduled
properties to an extent of 150 sq.yds. in Plot No.40/Part and another
150 sq.yds., i.e., in Plot No.39 100 sq. yds. and Plot No.40/Part 50
sq.yds. both are adjacent plots total admeasuring 300 sq.yds. situated
in Sy.No.55/అఆ At Kondapur Village, Serilingampally Mandal, R.R.
District, and pass such other reliefs as this Hon'ble Court deems fit
and proper in the circumstances of the case."
2. Heard learned counsel for the petitioner, learned Government
Pleader for Municipal Administration and Urban Development appearing
for respondent No.1, Sri M.A.K.Mukheed, learned Standing Counsel,
appearing for respondent Nos.2 to 4 and Sri Prakash Chakravarthy,
learned counsel appearing for respondent No.6 and perused the record.
3. Petitioner claims to be an agreement holder in respect of Plot
Nos.39/Part and 40 admeasuring 100 and 200 square yards, totally
admeasuring 300 square yards, in Sy.No.55/అఆ At Kondapur Village,
Serilingampally Mandal, R.R.District, being possessed of them under
unregistered agreement of sale from one B.Subba Laxmi, who is none
other than the petitioner's mother-in-law; and that since, the said B.Subba
Laxmi failed to execute registered sale deed, the petitioner had
approached the Civil Court by filing a suit for specific performance, vide
O.S.No.1465 of 2017 on the file of VI Additional District and Sessions
Judge-cum-VI Additional Metropolitan Magistrate, Sessions Judge-cum-
Family Court, Ranga Reddy District at Kukatpally, and since the civil suit
filed is pending adjudication, had approached the respondents-authorities
and submitted a representation claiming that the unofficial respondents,
though having knowledge of pendency of the civil suit, are making
unauthorized construction, without obtaining any valid permission from
the 3rd respondent authority and without leaving required setbacks.
4. It is the further case of the petitioner that though she had
approached the respondents-authorities and submitted application on
20.02.2023 under the Right to Information Act, 2005 (for short, 'the RTI
Act'), seeking a copy of the building permission and plan granted to the
unofficial respondents, the petitioner was informed by the respondents-
authorities, in particular the 3rd respondent authority, that the information
as sought for cannot be given and that they were contemplating to issue
building permission to the unofficial respondents within two days for
making construction in the schedule property, and thus, the petitioner had
invoked the jurisdiction of this Court under Article 226 of the Constitution
of India.
5. It is the further case of the petitioner that though the authorities by
the counter-affidavit claim to have issued a show cause notice
dt.04.03.2023 to respondent Nos.5 and 6 by noting therein that the
boundaries in respect of which the building permission had been sought,
do not match with the documents, the action of the respondents-
authorities in allowing the construction to proceed with is in violation of
provisions of the Greater Hyderabad Municipal Corporations Act, 1955.
6. Counter-affidavit on behalf of respondent Nos.2 to 4 is filed on
21.06.2023 and a counter affidavit on behalf of respondent Nos.5 and 6 is
filed on 25.07.2023.
7. Respondent Nos.2 to 4 by the counter affidavit filed, while denying
the writ averments, have stated that the unofficial respondents have
obtained building permission under the TS-bPASS Act, 2020, vide
proceedings dt.01.02.2023. The respondents by the counter affidavit have
further stated that on receiving the complaint from the petitioner
dt.20.02.2023, the authorities have initially issued a notice dt.04.03.2023
to which the unofficial respondents had submitted their explanation
dt.16.03.2023.
8. The respondents by the counter-affidavit have contended that the
unofficial respondents on submission of the explanation to the show cause
notice dt.04.03.2023, had approached this Court by filing W.P.No.10878 of
2023 and this Court by order dt.20.04.2023 had directed the respondents-
authorities to consider the explanation submitted by the petitioners, i.e.
unofficial respondents herein, to the show cause notice dt.04.03.2023 by
taking note of the contents of the said explanation and pass appropriate
orders thereon in accordance with law and communicate the same to the
petitioners therein within a period of four (04) weeks from the date of
receipt of a copy of the order.
9. The respondents further contend that on this Court passing the
above said order, the respondents-authorities have granted an opportunity
of hearing to the unofficial respondents on 12.06.2023 and on the said
day, the authorities have issued intimation letter to the unofficial
respondents not to make further construction, as the application
submitted by the unofficial respondents cannot be considered due to
pendency of W.P.No.6352 of 2023 filed by the petitioner herein. By
placing the aforesaid intimation, it is stated that the application filed by
the unofficial respondents would be considered soon after the disposal of
W.P.No.6352 of 2023 by initiating further necessary action in the matter.
10. Learned Standing Counsel further submits that since, the
authorities are only required to see prima facie title and possession while
granting building permission, the authorities have accorded permission on
01.02.2023 by taking into consideration the sale deed executed in favour
of the unofficial respondents by Smt.Sarada Devi Adusumilli, the sister-in-
law of the petitioner, who is claiming the subject property under a
registered gift settlement deed dt.25.02.2013 and that since, the
petitioner is only claiming under an unregistered agreement of sale, the
same could not be considered, more so, the unofficial respondents having
obtained regularization of the subject plot on the basis of the registered
sale deed in their favour under the Regularization Scheme introduced by
the Government.
11. The unofficial respondent Nos.5 and 6 by their counter-affidavit
filed have contended that the present writ petition as filed is not
maintainable for the reason that the petitioner is only claiming under an
unregistered agreement of sale/gift deed stated to have been executed by
the mother-in-law of the petitioner, while title of the unofficial respondents
is confirmed by way of a registered sale deed.
12. By the said counter-affidavit, it is further contended that since, the
petitioner has based her title to the subject property under unregistered
agreement of sale, the claim of the petitioner cannot be accepted.
13. The unofficial respondents further contend that when one
M.Satyanarayana Goud sought to lay a claim to the subject property, the
unofficial respondents had filed a suit, vide O.S.No.2794 of 2019 on the
file of the VII Additional Senior Civil Judge, Ranga Reddy District at
L.B.Nagar, and that in respect of the suit schedule A and B properties,
which have been acquired by them under two sale deeds dt.29.06.2019,
had obtained judgment and decree dt.19.01.2021, in their favour.
14. The unofficial respondents thus contend that they having
purchased the subject property under registered sale deed, the claim of
the petitioner is only on account of the appreciation in value of the
property, and lacks bona fides.
15. I have taken note of the respective contentions urged.
16. Though the petitioner had contended that the construction being
made by the unofficial respondents to be without permission, it is now on
record that the unofficial respondents had got sale deeds executed in their
favour on 29.06.2019 and had obtained building permission for
construction from the respondents-authorities on 01.02.2023.
17. Though the respondents-authorities on receiving the complaint
from the petitioner on 20.02.2023 had issued a notice dt.04.03.2023, to
which the unofficial respondents have submitted an explanation on
16.03.2023, and thereafter, in compliance with the direction of this Court
in W.P.No.10878 of 2023, vide order dt.20.04.2023, the respondents-
authorities had conducted a hearing on 12.06.2023, however, had passed
an order informing the unofficial respondents; that the building permission
application submitted by them cannot be considered in view of the
pendency of the present Writ Petition and that necessary action would be
taken after the disposal of the same.
18. Though the respondents-authorities, while considering the
application of the petitioner, had taken note of the fact of the execution of
registered sale deeds in favour of the unofficial respondents and also the
LRS being granted in their favour, on account of the pendency of the
present Writ Petition, directed the unofficial respondents not to proceed
with the construction till the disposal of the Writ Petition.
19. Despite the petitioner claiming title to the subject property on the
basis of the unregistered agreement of sale stated to have been executed
by her mother-in-law, it is not in dispute that the executant of the said
agreement herself had executed registered gift settlement deed in favour
of the daughter who in turn sold the property to unofficial respondents
and executed sale deeds in their favour.
20. It is settled position of law that merely on the basis of agreement
of sale, no interest can be claimed - (see M unisham appa v/ s. M .Ram a
Reddy 1 ).
21. Further, it is also settled position of law that if a registered sale
deed is presented as against an agreement of sale, it is registered sale
deed that would have precedence over the unregistered agreement of
sale. Thus, the action of the respondents-authorities initially in issuing
permission on 01.02.2023 and thereafter, directing the unofficial
respondents not to proceed with the construction till the present Writ
Petition is decided, in the considered view of this Court cannot be
accepted as a valid action, as it is for the authorities to grant or reject
permission, based on the prima facie satisfaction as to the title and
possession, but, could not have kept the same pending.
22. Though the petitioner claims to have filed a suit seeking specific
performance, inasmuch as no order has been passed thereon as of today,
the title of the unofficial respondents cannot be said to be jeopardized for
them to deal with the property. If only the petitioner is successful in the
suit instituted by her against her mother-in-law, including the unofficial
respondents, seeking for execution of the specific performance, then only
the petitioner can lay any claim to the subject property and not before.
2023 SCC Online SC 1701
Thus, considered from any angle, the claim of the petitioner with regard
to the unofficial respondents making construction without any valid
permission, cannot be accepted as a valid claim for being it to be
countenanced.
23. Accordingly, the Writ Petition is devoid of any merit and it is
accordingly dismissed with costs of Rs.10,000/- (Rupees Ten Thousand
only) payable to the Telangana High Court Legal Services Committee, High
Court Buildings, Hyderabad, within four (04) weeks from the date of
receipt of a copy of this order.
24. Miscellaneous petitions, if any, pending in this writ petition shall
stand closed.
__________________
T. VINOD KUMAR, J
Date:12.02.2024
GJ
