WP/24597/2009 of Mrs.Ameerunnisa Begum Vs Greater Hyderabad Municipal Corporation, rep.by its on 29 December 2011

ORDER:

This Writ Petition is filed seeking to issue writ of Mandamusdeclaring the action of respondent Nos.1 to 4 in not considering thepetitioner’s representations, dated 04.12.2006, 12.06.2007,08.09.2008, 12.01.2009 and 06.03.2009 for conducting enquiry withregard to the sanctioning of plan granted vide proceedings, dated22.12.2005, in favour of respondent No.6 for establishment of fillingstation at Saroornagar, Hyderabad by illegally encroaching into theland as illegal and arbitrary.

2. The averments, in brief, stated in the affidavit filed in supportof the writ petition may be stated as follows:

The petitioner is the owner and is in peaceful possession andenjoyment of the house bearing Municipal No.1-71, 2-86, 2-117(Old), 11-2-11 (New) situated at Saroornagar, Hyderabad. There is acommon passage existing towards her house from the main road,which is “17” feet in width and the petitioner along with theneighbouring house owners were using the said passage sinceseveral decades and there is a muslim graveyard adjoining to thecommon passage. Respondent No.6 purchased houses bymanipulating the area in the sale deeds and thereafter, executed leasedeed, dated 04.10.2005, in respect of H.Nos.11-2-8 to 11-1-10/1(New) and House Nos.11-2-112 to 11-2-116 (old) in favour ofrespondent No.5 for starting a filling station by demolishing the oldhouses and suppressed the house of the petitioner in the lease deed,which is adjacent to H.No.11-2-10 and 11-2-10/1. Respondent Nos.5and 6 fraudulently suppressed the house of the petitioner in the leasedeed, dated 04.10.2005, and applied for permission and respondentNo.3, without conducting any enquiry, issued No Objection Certificatefor proposed new retail outlet of petrol/diesel vide its letter, dated 24.10.2005, to respondent No.5 subject to condition that respondentNo.4 has to examine the ownership and ULC aspect, but respondentNo.4 did not conduct any enquiry and failed to ascertain as to theownership of the land. Respondent No.3 granted technical approval ofbuilding plan for proposed new retail outlet of petrol/diesel on28.10.2005 to respondent No.5 and forwarded to respondent No.2 fornecessary action, who permitted respondent No.5 to carry out theconstruction of the retail outlet of petrol/diesel i.e., filling station.Respondent No.5, without obtaining any consent or no objection fromthe owners of the surrounding residential houses, obtained permissionfrom respondent Nos.1 to 4 to run the petrol filling station. The petroland diesel tanks of the filling station are attached to the house withoutany set back, which is dangerous to the life of the petitioner, her familymembers and also the surrounding residents of the filling station. Dueto the existence of the petrol and diesel tanks on the eastern andnorthern side of her house, the compound wall of her house is gettingdamaged and there is every threat that it may collapse at any time.Respondent No.5 encroached the common passage of 17 feet widthroad, muslim graveyard and removed the existing railing of old historicstonewall of Saroornagar Tank. Though the petitioner made severalrepresentations on 04.12.2006, 12.06.2007, 08.09.2008, 12.01.2009and 06.03.2009 to respondent Nos.1 to 4 to conduct a proper enquiryand fish out the illegality committed by respondent Nos.5 and 6 andcancel the permission granted on 22.12.2005, no action has beeninitiated. Hence, she filed the present writ petition.

3. Separate counters have been filed by the respondentsdenying allegations made by the petitioner.

4. In the counter filed by respondent No.2 on behalf ofrespondent Nos.1 and 2, representing Greater Hyderabad MunicipalCorporation, it is stated that the petitioner may be the owner of thehouse, but denied that she is the owner of the land as no documentswere produced in proof of the same. It is stated that the petitioner is

having access to her house through the entrance of the grave yardalong its compound wall and other than that, there is no other 17 feetpassage. It is also stated that respondent No.6 was the owner of thesaid premises and pursuant to the grant of building permission, a leasewas entered into between respondent Nos.5 and 6 and the petrolpump was constructed and the same is being run by respondent No.6for the last four years after obtaining necessary licenses andpermissions. It is further stated that they are taking steps to call for thedocuments from both the petitioner and respondent Nos.5 and 6 andbasing on the survey report, if it is found that any encroachments aremade by respondent Nos.5 and 6, they would take all steps to removesuch encroachments.

5. Respondent No.3 filed counter affidavit stating that on therepresentation made by respondent No.6 to respondent No.4 -DistrictCollector, Ranga Reddy District, for issuance of No ObjectionCertificate for erection of petrol retail outlet, respondent No.4 forwardedthe same to respondent No.3, being the statutory authority to examinesuch proposals. After conducting necessary enquiry, as the subjectpremises is earmarked for residential use, the said proposals havebeen rejected vide letter dated 20.11.2003. Subsequently, respondentNo.6 approached the Government for conversion of land fromresidential use to transportation use and after calling for its remarks,the Government issued G.O.Ms.No.23, dated 10.1.2005, converting theland use subject to certain terms and conditions. Subsequently,respondent No.4, after collecting the necessary charges, grantedbuilding permission vide letter, dated 28.10.2005. It is also deniedabout the committing of illegalities in technical sanction of buildingpermission.

6. Respondent No.4-District Collector filed counter stating thaton the application made by respondent No.6 for grant of NOC for theproposed retail outlet in the subject premises, the matter has been enquired by various authorities viz., Commissioner of Police,Cyberabad; Divisional Fire Officer, Ranga Reddy District; DeputyCollector & Tahsildar, Saroornagar Mandal, vide letter dated 5.9.2003,and though the other officials have recommended for grant of NOC,respondent No.3-HUDA rejected the same on the ground that thesubject land is earmarked as residential zone. It is also stated thatsubsequently, on the application made by respondent No.6, theGovernment issued orders for conversion of land from residential useto commercial use for establishment of petrol bunk. It is also stated thaton the proposal sent by respondent No.5-Bharat PetroleumCorporation Limited for grant of NOC in the subject land, the ExecutiveEngineer (R & B), Roads Division, Hyderabad, and the ViceChairman, HUDA, have recommended for grant of NOC for theproposed retail petrol outlet subject to certain conditions and asrespondent No.6 submitted his explanation assuring to fulfill the saidconditions, as per the recommendations of all the enquiry officers,NOC has been issued.

7. The counter filed by respondent No.5-Bharat PetroleumCorporation Limited is a total denial of the averments in the writpetition. An application was made for grant of NOC for establishmentof petrol retail outlet and after conducting enquiries by variousauthorities, all the authorities have recommended for issuance of NOCand after getting permission from the Departments concerned, retailoutlet was established in the year 2006. After satisfying with thedocuments produced by respondent No.6 with regard to the title of thesubject property, further action has been taken. The allegation thatrespondent Nos.1 to 4 have granted permission without following therules is also denied. After verifying the documents and after getting thelegal opinion only, steps were taken to establish the retail outlet aftertaking due permissions and no encroachment has been made asalleged by the petitioner.

8. Respondent No.6 filed counter denying the averments and also maintainability of the writ petition. He is running the petrol bunk inthe premises bearing Nos.11-2-8 to 11-2-10/1 and also has aresidential house, totally admeasuring 1470 square yards and a part ofthe said property was purchased by him under three registered saledeeds bearing document Nos.3201/01, 4106/02 and 2355/03 and therest of the property has been inherited by him from his ancestors. Hehas applied for permission and issuance of NOC to set up a petroleumoutlet in the subject premises to various authorities and after obtainingnecessary permission and NOC from all the authorities concerned, theDistrict Collector issued NOC vide letter dated 28.10.2005.Subsequently, he has entered into a lease agreement with respondentNo.5-BPCL for a period of 30 years vide lease deed dated 4.10.2005and invested huge amounts for establishment of petrol outlet bysecuring loans from the financial institutions. The petitioner is residingin a house, which is adjacent to his property, wherein the petrol bunk issituated and abutting to the house of the petitioner, there is a Muslimgrave yard and there is only one passage to the said grave yard and tothe house of the petitioner. Except the said common passage, as thereis no other way to reach her house and that since the petitioner aloneis living besides the grave yard and no other person is residing in thevicinity, the petitioner is scared to reside in the said house and makingefforts to sell away the said house and was requesting him to purchasethe same. As he did not agree to her request, the petitioner startedcoercing him by making various complaints to the authorities.

9. In retaliation to the said counters, the petitioner also filed areply affidavit.

10. Heard learned counsel for the respective parties andperused the material available on record.

11. The relief sought for in the writ petition is to declare theaction of the official respondents in not considering the petitioner’sseveral representations, dated 04.12.2006, 12.06.2007, 08.09.2008, 12.01.2009 and 06.03.2009 for conducting enquiry with regard to thesanction of plan in favour of respondent No.6 for establishment offilling station at Saroornagar as illegal. As seen from all therepresentations made by the petitioner, it is stated that respondentNo.5 constructed and encroached the common passage width of 17feet existing towards the petitioner’s house from the main road andencroached the Muslim graveyard adjoining to the common passageand by removing the railing consists of old historic stone wall ofSaroornagar Tank.

12. Learned counsel for the petitioner stated that by virtue of thejudgment and decree in O.S.No.70 of 1996, dated 01.12.1980, on thefile of Munsif Magistrate, Hyderabad East and North, the existence of17 feet passage was accepted by the concerned Magistrate and thatwith regard to the conversion of title land admeasuring 950.39 sq.mts,permission was granted and there was no expansion for the remaining25 sq.metres after deduction of certain extent 727.19 sq.mts were leftand therefore, that is apparently the existing passage.

13. On the other hand, learned counsel appearing for respondentNo.2 contended that a joint survey was conducted; that the petitionerfailed to produce any documents to show about the existence of thepassage; that on physical verification, there is no such passage inexistence and hence, the writ petition is devoid of merit, as therepresentations of the petitioner have already been considered.

14. On the other hand, learned counsel appearing for respondentNo.3 contended that the Government has given permission to changethe land to an extent of 950.39 sq.mts.

15. Learned counsel appearing for respondent No.6 stated thatafter obtaining necessary permission, the petrol bunk was constructed;that there was no encroachment to the passage; that though the netarea is available after expansion of the road is 727.19 sq.metres, respondent No.6 also purchased some other land and that the totalextent of the land is 1470 sq.yards of site and therefore, there are nogrounds to issue a direction.

16. The dispute is with regard to 17 feet passage, which wasrunning by the side of the petrol bunk. It is the specific case of thepetitioner that lease was granted for running the petrol bunk by theauthorities concerned to an extent of 727.19 sq.metres of site afteraffecting the proposed 30 metre master plan road. According to thelearned counsel for the petitioner, the lease deed shows an extent of745.82 sq.metres. Therefore, there is no expansion for this extent ofland by the respondents. In pursuance of the directions given by thisCourt, a survey was conducted and the officials of respondent No.2filed report on 06.09.2010. In pursuance of the direction, dated25.08.2010, respondent No.2 issued notices to the petitioner andrespondent Nos.5 and 6 calling for documents for verification withinthree days. The petitioner has not submitted any documents within thestipulated time whereas respondent No.3 submitted copy of thedocuments along with the sanctioned plan for construction ofpetroleum filling station. After survey, it was noticed that there was nopassage of 17 feet existing as alleged by the petitioner.

17. The petitioner is using the entrance of the graveyard alongwith its compound wall for ingress and egress to her house. So, fromthe material available on record, there is a serious dispute with regardto the existence of 17 feet passage. According to the petitioner, thesaid passage is existing by the side of the petrol bunk and it is beingused for ingress and egress towards her house whereas respondentNo.2 filed counter affidavit specifically stating that there is no suchpassage in existence by the side of the petroleum bunk and therefore,when there is a serious dispute with regard to a question of fact, thatcannot be adjudicated in the writ petition exercising the powers underArticle 226 of the Constitution of India. Though it is stated that therewas excess land of 25 sq.metres, according to the learned counsel for

respondent No.6, it has been specifically stated in the counter thatrespondent No.6 is having a total extent of 1470 sq.yds of site,including the site where the petrol tank is situated and therefore, theexcess land that was found after road widening cannot be said to be apassage. When there is a serious dispute with regard to the passage,the same cannot be determined in this writ petition. According to thelearned counsel for the petitioner, the petrol bunk has not been laid asper the sanctioned plan, whereas the counsel appearing forrespondent No.6 specifically stated that the petrol bunk wasconstructed in accordance with the sanctioned plan. However, there isno material to show that the petrol bunk was constructed contrary tothe sanctioned plan. Hence, there are no grounds and the writ petitionis devoid of merits and liable to be dismissed.

18. Accordingly, the writ petition is dismissed. There shall be noorder as to costs.

29[th] December 2011AMD

_______________K.C.BHANU, J

THE HON’BLE SRI JUSTICE K.C.BHANU

AMD

WRIT PETITION No.24597 OF 2009

29[th] December 2011