Telangana High Court
Venkata Sumalatha vs State Of Telangana on 6 June, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.13988 OF 2024
ORDER:
This Writ Petition is filed for issuance of a writ of
mandamus to declare the action of the respondent Nos.2 to 4 in
demolishing the compound wall and in interfering and
attempting to demolish the building on the subject property
without issuing any notice or affording an opportunity for
hearing and without following any procedure contemplated
under law, as being illegal, arbitrary and unconstitutional and
with a consequential direction to respondents not to interfere
with peaceful possession and enjoyment of the petitioner with
the subject property without following due process of law.
2. Heard learned Counsel for the petitioner, learned
Government Pleader for Municipal Administration & Urban
Development appearing for respondent No.1, Sri M.A.K.
Mukheed, learned Standing Counsel appearing on behalf of
respondent Nos.2 and 3, Sri V. Narasimha Goud, learned
Standing Counsel appearing on behalf of respondent No.4, and
with the consent of parties, the Writ Petition is taken up for
hearing and disposal at the stage of admission.
3. The case of the petitioner, in brief, is that she is the
absolute owner and possessor of plot No.573/C, admeasuring
187 square yards in Sy. No.150, Ward No.11, situated at
Hafeezpet village, Serilingampally Mandal, Ranga Reddy District
having purchased the same under registered sale deed dated
06.07.2009 from her vendor, who in turn had purchased the
same under registered sale deed dated 07.07.2005.
4. Petitioner further contends that originally the land
admeasuring Ac.20.18 gts. in Sy. No.150 of Hafeezpet village
belonged to M/s. The Deephi Sree Co-operative House Building
Society and the said society had made the same into layout of
plots and the subject plot has been sold to Smt. K. Radhika,
under registered sale deed dated 05.11.2023 who in turn sold
the same to the petitioner vendor from whom the petitioner has
purchased.
5. Petitioner further contends that the petitioner's vendor
Mr. N. Samrat on purchasing the plot under registered sale deed
dated 07.07.2005 had obtained building permission from the
respondent Municipal authorities, vide building permission
dated 12.11.2007 for construction of residential building
consisting of ground + one upper floor with a constructed area
of 51.08 square meters each in the ground floor and first floor
and made construction.
6. Petitioner further contends that the subject property
thereafter was purchased by the petitioner from the said Sri N.
Samrat and made further construction of one additional floor
thereon.
7. Petitioner further contends that since, the date of
purchase of the aforesaid subject property by the petitioner in
the year 2009, the petitioner has been in possession and
enjoyment of the same.
8. Petitioner further contends that the 4th respondent
without issuing any notice had resorted to demolition of the
compound wall of the petitioner's property on 29.05.2024 by
deploying its men and machinery in a high handed manner.
9. Petitioner further contends that on purchasing the
aforesaid property, she had obtained water and electricity
connections for the said property which has also been assigned
door number by the 2nd respondent authority and, as such, the
action of the 4th respondent in demolishing the compound wall,
without putting the petitioner on notice and without following
due process of law is highly arbitrary and illegal.
10. Per contra, Sri V. Narasimha Goud, learned Standing
Counsel appearing on behalf of respondent No.4 submits that
the subject property being claimed by the petitioner as plot
No.573/C, admeasuring 187 square yards as falling in Sy.
No.150, Ward No.11 of Hafeezpet village, Serilingampally
Mandal, Ranga Reddy District, actually falls in Sy. Nos.100 and
101 of Miyapur village; and that the said land is a Government
land as per records.
11. Learned Standing Counsel further submits that since, the
petitioner had made construction by encroaching into the land
of the 4th respondent claiming the same as falling in Sy. No.150,
the authorities have issued notice in Form-A dated 18.05.2024
to show cause within ten days from the date of receipt of notice
as to why the petitioner should not be evicted therefrom.
12. Learned Standing Counsel further submits that the
aforesaid notice on being refused to be received by the petitioner
was served by affixture on 20.05.2024.
13. Learned Standing Counsel further submits that since, the
authorities did not receive any reply to the said notice issued in
Form-A, the authorities are proceeding with the demolition
work, however have only demolished the part of the compound
wall of the subject property, since the petitioner had approached
this Court by filing the Writ Petition thereon.
14. Learned Standing Counsel appearing on behalf of
respondent Nos.2 and 3 on the other hand submits that since,
the sale deed under which the petitioner had purchased the
subject property reflects of she having purchased open plot after
dismantling the erecting house, fresh permission for
construction has to be obtained by the petitioner.
15. Learned Standing Counsel further submits that since, it
has now been brought to the notice of the authorities that the
said construction made by the petitioner to be unauthorized
and illegal construction by encroaching into land in Sy. No.100
and 101 of Miyapur village, while claiming the same as in Sy.
No.150 of Hafeezpet village, the authorities would look into the
matter and take further action.
16. Learned Standing Counsel further submits that in so far
as the role of the Municipal authorities while granting building
permission is concerned, the respondent authorities to consider
the prima facie title and possession and cannot adjudicate the
civil dispute.
17. Learned Standing Counsel further submits that in the
event of the authorities receiving any communication from the
4th respondent authority or from the 1st respondent authority as
to the subject plot in respect of which the construction has been
made by the petitioner, the authorities would cause verification
as to whether any permission exists or not and thereafter take
further action in accordance with law.
18. I have taken note of the respective contentions urged.
19. Though the petitioner claims to have purchased an
existing house from his vendor Sri. N. Samrat, a perusal of the
sale deed and the stamp duty and registration charges paid
thereon would indicate that the petitioner had purchased the
dismantled house bearing Municipal No.5-573/C of plot
No.573/C in Sy. No.150, admeasuring 187 square yards
situated at "Deepthi Sree Nagar", Hafeezpet village,
Serilingampaly Mandal, GHMC Serilingampally under the
registered sale deed dated 06.07.2009.
20. Though the petitioner had claimed that the vendor had
obtained building permission from the respondent authority,
vide proceedings dated 12.11.2007 for construction of building
consisting of ground + one upper floor, the documents annexed
to the writ petitioner indicates that the existing building
consists of ground + two upper floors. Further, since, the
petitioner had purchased the property with dismantled house in
the shape of open plot, in the considered view of this Court, the
petitioner cannot claim of having purchased the plot with the
building therein.
21. Further, in the absence of petitioner showing to this Court
of she having obtained any building permission from the
respondent authorities for construction of the existing building
consisting of ground + two floors, this Court is of the view that
the said building being claimed by the petitioner as existing
from the date of her purchase of the subject property cannot be
held to be valid claim. However, it is to be noted that the
respondent Nos.2 and 3 admittedly have not initiated any action
as of date.
22. Further, the present Writ Petition is filed alleging that the
4th respondent has resorted to demolition of the compound wall
without issuing any notice to the petitioner. Though the learned
Standing Counsel appearing on behalf of the 4th respondent has
placed before this Court a copy of the notice in Form-A dated
18.05.2024 and had stated that the aforesaid notice has been
served by affixture; and that since the petitioner is an
encroacher on to the land in Sy. Nos.100 and 101 of Miyapur
village, he has refused to receive the same. However, a perusal
of the copy of the notice as placed before this Court does not
indicate that the authorities have followed the procedure
prescribed for serving notice by affixture which requires the
authentication of affixture in the presence of respectable
persons of the area. Further, it is also to be noted this Court in
numerous cases had held that the mode of service by affixture
would have to be resorted to only as a last resort after the
authorities exhausting the steps for effecting service of notice
either in person or by registered post and cannot resort to
service by affixture as the first mode of service. Since, it is not
shown to this Court that the said service of notice by the
authorities is by following procedure prescribed for affixture, the
claim of the 4th respondent of the said notice having been served
on the petitioner by affixture and her failure to submit
explanation within 10 days time cannot be accepted as a valid
defence for sustaining the action of the respondent authority.
23. It is trite law that even an encroacher/trespasser is
required to be evicted by following due process of law. A Division
Bench of this Court (to which I was a member), in
M/s.Visweswara Infrastructure Pvt. Ltd. And others v. The
Telangana State Industrial Infrastructure Corporation and
others 1 following the dicta laid down by the Hon'ble Supreme
Court in Yeshwant Singh v. Jagdish Singh 2 wherein the Apex
Court held that - "person in possession cannot be dispossessed
except in accordance with law." It further held:
"In India persons are not permitted to take forcible
possession; they must obtain such possession as they
are entitled to through a court".
24. Since in the facts of the case, even assuming that the
petitioner is an encroacher in the land belonging to the 4th
respondent in Sy. Nos.100 and 101 of Miyapur village claiming
it to be forming part of the land in Sy. No.150 of Hafeezpet
village, the authorities are required to follow due process of law
i.e., issuing notice, considering the explanation if any submitted
before taking any further action in the matter. As this Court
has now held that the subject notice in Form-A as not having
been served on the petitioner in the manner known to law, this
Court is of the further view that the 4th respondent authority
cannot resort to any demolition of the subject property of the
petitioner until and unless the authorities follow due process of
law.
1 Judgment dt.24-08-2023 in W.A.No.697 of 2023
2 AIR 1968 SC 620
25. As the endorsement made on the notice in Form-A states
that the petitioner has rejected/denied to take notice whereby
the authorities have resorted to serving the notice by affixture,
however, as the husband of the petitioner who is present in the
Court is willing to accept the notice in Form-A dated 18.05.2004
to enabling him to file an explanation thereto within the period
indicated therein, and accordingly, accepted a copy of notice
from the learned Standing Counsel in the Court today.
26. Since the notice as issued by the 4th respondent is being
served on the petitioner today and a time of ten days is provided
thereunder, this Court is of the view that the respondent
authorities cannot resort to further demolition of the subject
property of the petitioner till the petitioner offers her
explanation to the same and the authorities taking further
action by considering the explanation if any submitted by the
petitioner.
27. Insofar as the claim of the petitioner of the subject
property being situated in Sy. No.150 as against the claim of the
4th respondent that the subject property forms part of Sy.
Nos.100 and 101 of Miyapur village, this Court is of the view
that the said issue can be resolved only by localization of the
subject property by getting the same surveyed by the authorities
of Survey and Land Records. Since, the 4th respondent
authority is claiming the petitioner having encroached into the
land belonging to the 4th respondent in Sy. Nos.100 and 101 of
Miyapur village, claiming it to be forming part of Sy. No.150 of
Hafeezpet village, this Court is of the view that the 4th
respondent authority shall take steps to get the subject land
surveyed with the concerned authorities within a period of three
months from today, after putting the petitioner and all other
concerned parties on notice. Upon the said survey as directed
by this Court is undertaken, if it is found that the subject
property of the petitioner is located in Sy. No.150 of Hafeezspet
village and not in Sy. No.100 and 101 of Miyapur village, the
respondent authority shall be liable for damages for the
demolition that the authorities have resorted to on 29.05.2024.
On the contrary, if it is found the subject land to be Sy. No.100
and 101 of Miyapur village, the 4th respondent shall take steps
to evict the encroachers like petitioner by following due process
of law.
28. Subject to the above observation and direction, the Writ
Petition is disposed of. No costs.
As a sequel, miscellaneous petitions pending if any shall
stand closed.
_____________________
Date: 06.06.2024 T. VINOD KUMAR, J
MRKR
