Telangana High Court

Adepu Devi vs The State Of Telangana on 27 March, 2024

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   IN THE HIGH COURT FOR THE STATE OF TELANGANA AT
                         HYDERABAD
                              *****
           WRIT PETITION NOs 13500 & 20603 of 2023

WP No.13500 of 2023

Between:

Komuravelli Laxmi Narsaiah and three others

                                                   ...Petitioners

AND
  1. The State of Telangana and, rep. by Principal Secretary for
     Panchayat Raj Department, Secretariat, Hyderabad and seven
     others
                                                    ...Respondents

WP No.20603 of 2023

Between:

Adepu Devi

                                                    ...Petitioner

AND
  1. The State of Telangana and, rep. by Principal Secretary for
     Panchayat Raj Department, Secretariat, Hyderabad and four
     others
                                                ...Respondents

COMMON ORDER PRONOUNCED ON: 27.03.2024
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SUBMITTED FOR APPROVAL:
             THE HON'BLE SRI JUSTICE K.SARATH


1.   Whether   Reporters    of   Local :   Yes/No
     newspapers may be allowed to see
     the Judgment ?

2.   Whether the copies of judgment    :   Yes/No
     may be marked to Law
     Reports/Journals

3.   Whether Their Lordship/Ladyship   :   Yes/No
     wish to see the fair copy of
     judgment


                                           _____________________

                                           JUSTICE K.SARATH
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                 THE HON'BLE SRI JUSTICE K.SARATH

+WRIT PETITION NO.13500 OF 2023

%Dated 27.03.2023

# Komuravelli Laxmi Narsaiah and three others

                                                                   ...Petitioners

and
  1. $ The State of Telangana and, rep. by Principal Secretary for
     Panchayat Raj Department, Secretariat, Hyderabad and seven
     others
                                                   ...Respondents

+WRIT PETITION NO.20603 of 2023

# Adepu Devi

                                                                   ...Petitioner

and
    1. $ The State of Telangana and, rep. by Principal Secretary for Panchayat
       Raj Department, Secretariat, Hyderabad and four others


                                                              ...Respondents
! Counsel for Petitioners in    :    Sri Srinivas Reddy Balkisti
 WP No. 13500 of 2023
! Counsel for Petitioner in      :   Sri Y.Vijaya Bhakar Reddy
WP No. 20603 of 2023
^ Counsel for Respondents        :   Govt. Pleader for Panchayath Raj and
                                     Rural Development

                                     Standing Counsel for the Gram
                                     Panchayath
< GIST :

> HEAD NOTE :

? Cass referred :
    1. (2013) 5 SCC 336
    2. (2021) 10 SCC
    3. 2023 (6) ALT 217 (DB)
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          THE HON'BLE SRI JUSTICE K.SARATH

     WRIT PETITION Nos.13500 and 20603 of 2023
COMMON ORDER:

1. The subject property involved in both these writ

petitions is one and the same and therefore they are taken

up for hearing together and a common order is being

passed.

2. Heard Sri Balakisti Srinivas Reddy, learned Counsel

for the petitioners in W.P.No.13500 of 2023, Smt.Vineela,

learned Counsel representing Sri Y.Vijaya Bhasker Reddy,

learned Counsel for the petitioner in Writ Petition

No.20603 of 2023, learned Government Pleader for

Panchayat Raj and the learned Standing Counsel for

Gram Panchayath appearing for the official-respondents

in both the writ petitions.

3. For the sake of convenience, the facts in

W.P.No.13500 of 2023 are taken as leading case and the

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parties hereinafter are referred to as arrayed in this Writ

Petition.

4. The petitioners are questioning the inaction of the

respondent Nos.2 to 5 in not stopping the illegal

construction being carried out by the unofficial

respondent No.8 and to direct the official respondents to

demolish the same.

5. After receiving the notices in W.P.No.13500 of 2023,

the respondent No.8 filed W.P.No.20603 of 2023

questioning the Notice dated 05.05.2023 issued by the

respondent Nos.4 and 5 therein, wherein it was directed

the respondent No.8 to remove/demolish the house

constructed in the subject plot.

Submissions of the learned Counsel for the petitioners

6. The learned Counsel for the petitioners would submit

that petitioners and the respondent No.6 have jointly

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inherited a house site admeasuring 176 Sq.Yards i.e.

H.No.1-5-5/5 (new) : 5-5 (Old) from their father, who died

intestate, situated at Doulatabad village and Mandal of

Siddipet District. Subsequently when the petitioners

demanded for partition of the house site and house

property, the respondent No.6 denied and behind back

of the petitioners, the respondent No.6 created a gift

settlement deed in favour of his son/respondent No.7,

who in turn created a sale deed in favour of the

respondent No.8.

7. The learned Counsel for the petitioners further

submitted that in the month of March, 2023 when the

respondent No.8 was cleaning the house site No.1-5-5/5

with an intention to take up construction work, the

petitioners filed a suit against the respondent Nos.3 to 8

along with others in O.S.No.89 of 2023 on the file of

I-Additional Junior Civil Judge, Gajwel, for partition and

also sought the reliefs to declare the gift settlement deed

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executed in favour the respondent No.7 and subsequent

sale deed executed in favour of the respondent No.8 as

null and void. The Trial Court granted interim orders of

status quo against the respondent No. 6 and 8 herein in

I.A.No.124 of 2023 in O.S.No.89 of 2023 on 24.01.2023.

In spite of there being status quo order, the respondent

No.8 took up the construction activity and therefore the

petitioners filed a representation to the official-respondent

Nos.2 to 5 on 31.03.2023 with a request to stop the

construction work being made by the respondent No.8.

Again the petitioners made a representation to the District

Collector on 08.05.2023 and then the District Collector

directed the respondent No.4/MPDO not to allow the

illegal construction by the respondent No.8, even then the

respondent Nos.4 and 5 did not stop the respondent No.8

from illegal construction.

8. The learned Counsel for the petitioners further

submits that the petitioners got issued a legal notice to

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the respondent No.8 calling upon her to stop the illegal

construction, which is in violation of status quo orders

passed by the Trial Court in I.A.No.124 of 2023 in

O.S.No.89 of 2023. Even after receiving the said legal

notice, the respondent No.8 did not stop the construction

work and further expedited the construction activity.

Thereafter the petitioners filed interlocutory application

seeking Police protection and also to punish the

respondent No.8 for willful violation and disobedience of

the Court order dated 24.03.2023 passed in I.A.No.124 of

2023 in O.S.No.89 of 2023. The respondent No.8 filed

counter affidavit in I.A.No.124 of 2023 in O.S.No.89 of

2023 on 28.04.2023 in which she clearly admitted that

no permission was granted to her for the construction of

house and suppressing the said facts filed W.P.No.20603

of 2023 and obtained interim orders from this Court and

completed the construction. The construction made by

the respondent No.8 is liable to be demolished and

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requested the Court to direct the official-respondents to

remove the illegal structures raised in the subject plot by

the respondent No.8 and requested to allow the Writ

Petition.

Submissions of the learned Counsel for the petitioner

9. The learned Counsel submits that the respondent

No.8/petitioner in W.P.No.20603 of 2023 has purchased

the subject plot, admeasuring 203.5 Sq.Yards situated at

Daulatabad village and Mandal of Siddipet District from

Samudrala Manikanta and his father Samudrala Srisalam

vide Sale Deed No.7587 of 2022 dated 23.08.2022. The

respondent No.5 has accorded permission in favour of the

vendors of the petitoner vide Proc.No.47/2020/GP/DBD

dated 05.10.2020 for construction of the house in the

subject plot. After purchasing the subject house plot, the

petitoner started construction of residential building as

per the permission granted by the respondent No.5.

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While the construction was being done, the respondent

No. 5 issued impugned Notice on 05.05.2023 threatening

her to demolish the house. The respondent No.5 is not

authorized under any provision of law to carry out such

demolition work, that too without issuing any prior notice

to the petitioner and requested to allow the writ petition

by setting aside the impugned notice.

Submissions of the learned Standing Counsel for the Gram Panchayath

10. The learned Standing Counsel for respondent

No.5/Gram Panchayat submits that basing on the

documents i.e. registered Gift Deed, accorded

construction permission to the respondent No.7 vide

Proc.No.47/2020/GP/DBD dated 05.10.2020 for an

extent of 156.36 Sq.Yards, to be completed within twenty

four months therefrom. Since the respondent No.7 has

not started any construction within the stipulated time,

the permission was automatically lapsed.

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11. The learned Standing Counsel for the respondent

No.5 further submits that the construction activity being

carried out by the respondent No.8 is illegal and therefore

they issued notices to the respondent No.8 on 02.04.2023,

04.04.2023, 29.04.2023 and on 05.05.2023, but the

respondent No.8 continued the construction work during

the night times and holidays without disclosing the earlier

notices filed Writ Petition against only 4th Notice and

requested to pass appropriate orders.

12. The respondent Nos.6 to 8 did not choose to file

counter in W.P.No.13500 of 2023 to deny the averments

made by the Writ Petitioner and the respondent No.8 filed

W.P.No.20603 of 2023 without impleading the petitioners

herein.

Findings of the Court

13. After hearing both sides and on perusing the record,

this Court is of the considered view that when the

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respondent No.8 started construction, the petitioners

have filed a suit against respondent Nos.3 to 8 along with

others in O.S.No.89 of 2023 on the file of I-Additional

Junior Civil Judge, Gajwel for partition and also to declare

the gift settlement deed and subsequent sale deed as null

and void. The Trial Court granted interim orders on

24.03.2023 directing the respondent Nos. 6 and 8 herein

to maintain status quo in I.A.No.124 of 2023 in O.S.No.89

of 2023. In spite of there being status quo order, the

respondent No.8 continued the construction activity in the

subject house site.

14. The contention of the respondent No.8 is that

without issuing any notice to her, the official respondents

have issued notice on 05.05.2023 to demolish the house

constructed on the subject property.

15. The respondent No.8 without impleading the

petitioners filed writ petition No.20603 of 2023. The

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respondent No.8 before filing Writ Petition received

status quo orders passed in I.A.No.124 of 2023 in

O.S.No.89 of 2023 filed by the petitioners and she also

received legal notice on 11.04.2023 and filed counter in

I.A.No.124 of 2023 in O.S.No.89 of 2023 on 28.04.2023.

In para No.15 of the said counter, the respondent No.8

categorically stated that after purchasing the suit

schedule property, she applied for permission in her

name and the same is pending. But, the said facts were

not brought to the notice of this Court by the respondent

No.8 in the Writ Affidavit filed on 01.08.2023 and this

Court passed the interim order in W.P.No.20603 of 2023

on 01.08.2023, which reads as follows:

"Status quo as on today shall be maintained with regard to structures laying on the subject property until further orders"

16. In spite of the said status quo orders, the respondent

No.8 continued the construction on the subject plot and

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completed as per the submissions of the learned Counsel

for the petitioners. Moreover, the respondent No.8

suppressed the fact that she received notices on

01.04.2023, 10.04.2023, 29.04.2023 and the same was

revealed after filing the counter by the respondent No.5,

the respondent No.8 not denied her signatures in the

notices filed along with the counter. The respondent No.8

questioned only one notice dated 05.05.2023 received

from the Gram Panchayath stating that for the first time

she received notice, which clearly shows that the

respondent No.8 suppressing all the above facts, obtained

status quo order from this Court in W.P.No.20603 of 2023

on 01.08.2023.

17. The respondent No.8 suppressed the fact that in

spite of status quo orders against her in I.A.No.124 of

2023 in O.S.No.89 of 2023 on the file of Principal Junior

Civil Judge, Gajwel and after filing the counter in the said

Interlocutory Application, filed W.P.No.20603 of 2023 and

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without bringing the said facts to the notice of this Court

obtained interims orders and continued construction and

now completed construction, which amounts to

misleading the Court and made illegal construction. This

Court time and again held that the illegal and

unauthorized constructions have to be dealt with strictly

to ensure compliance with rule of law.

18. The Hon'ble Supreme Court in Dipak Kumar

Mukherjee Vs. Kolkatta Municipal Corporation 1 held

that the unauthorized constructions of buildings and

other structures not only violate the laws and the

common man feels cheated when he finds that those

making illegal and unauthorized constructions are

supported by the people entrusted with the duty of

preparing and executing master plan/development

plan/zonal plan. The relevant portion of the said

Judgment is as follows:

(2013) 5 SCC 336

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"8. What needs to be emphasized is that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorizedly constructed multi-storied structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.

9. We have prefaced disposal of this appeal by taking cognizance of the precedents in which this Court held that there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their subservient, but are happy to note that the functionaries and officers of Kolkata Municipal Corporation (for short "the Corporation") have been extremely vigilant and taken steps for

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enforcing the provisions of the Calcutta Municipal Corporation Act, 1980 (for short "the 1980 Act") and the Rules framed thereunder for demolition of illegal construction raised by Respondent 7. This has given a ray of hope to the residents of Kolkata that there will be zero tolerance against 49 illegal and unauthorized constructions and those indulging in such activities will not be spared".

(Emphasis added)

19. The Hon'ble Supreme Court in Supertech Limited

Vs. Emerald Court Owners Resident Welfare

Association and others 2 held that:

"168. Finally, this Court also observed that no case has been made out for directing the municipal corporation to regularize a construction which has been made in violation of the sanctioned plan and cautioned against doing so. In that context, it held (Esha Ekata Apartments Case ((2013) 5 SCC 357 para 56):

56. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts also expected to refrain from excising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encouraged violators of the planning laws and destroy the very idea and concept of planned development of Urban as well as rural areas:.

(Emphasis added)

(2021) 10 SCC

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20. Following the above two Judgments the Division

Bench of this Court in P.Venkateswarlu Vs.

Government of Andhra Pradesh 3 directed the

respondents therein to demolish the illegal constructions.

21. In the instant case, the respondent No.8 without

obtaining any valid permission from the competent

authority started the construction work and suppressing

the said fact before this Court obtained interim orders and

on the guise of status quo order, continued construction