WP/20340/2014 of Smt Kareemunisa Begum, Vs Greater Hyderabad Municipal Corporation on 30 December 2014

ORDER

Heard Sri M.Das Mohapatra, learned counsel for thepetitioner, Sri R.Radhakrishna Reddy, learned Standing Counselfor 1[st] respondent, Sri K.Govardhan Reddy, learned counsel for2[nd] respondent and Sri S.Kishore Rai, learned counsel for 3[rd]respondent.

2. The petitioner in this Writ Petition has questioned thePermit No.34298/HO/CZ/Cir-9/2014 dt.06-06-2014 issued by 1[st]respondent permitting 2[nd]and 3[rd] respondents to makeconstruction in premises bearing No.3-6-784/12 and 13 in Sy.No.137, Narayanguda, Hyderabad.

3. The petitioner contends that her father SyedValiullah Hussani purchased land in Sy. Nos.135/1, 135/2, 136/1and 136/2 in Narayanguda, Hyderabad; that in 2012, 3[rd]respondent commenced digging of pits in the property; petitionermade a complaint to 1[st] respondent alleging that construction wasbeing made illegally by 3[rd] respondent; that she also filed aW.P.No.21841 of 2012 wherein 1[st] respondent stated that nopermission was granted to 3[rd] respondent; thereafter 3[rd]respondent did not dig any foundation; and recently, 3[rd]respondent has again started construction activity in the propertyand petitioner came to know that permission has been accordedby 1[st] respondent under the impugned proceedings to makeconstruction therein.

4. Petitioner contends that prior thereto, certain construction was commenced by 3[rd] respondent which wasquestioned by the petitioner in W.P.No.11144 of 2014 and in thatWrit Petition, 1[st] respondent stated that no permission has beengranted and that it is taking action against illegal construction ofrespondent Nos.2 and 3. Petitioner contends that as per the linksale deed and revenue records relating to the said property, theplot of 2[nd] respondent falls under Sy. No.137 while the sale deedof the petitioner and the revenue record of the petitioner show thatthe subject property falls under Sy. No.136; and that respondentNos.2 and 3 encroached onto the petitioner’s plot and startedraising buildings. She alleged that without verifying the link saledeed and revenue records, 1[st] respondent has granted permissionto respondent Nos.2 and 3.

5. Petitioner further contends that respondent Nos.2and 3 had created a sketch/plan and attached it to the sale deeddt.14-10-1964 and taking advantage of the same,obtained permission by 1[st] respondent in respect of an area of6000 sq yds and that 1[st] respondent had considered suchdocuments, which do not indicate the extent, and relying on them,erroneously granted permit to 2[nd] and 3[rd] respondents to makeconstructions. The petitioner therefore submits that the prima facietitle of the respondent Nos.2 and 3 is doubtful and on the basis ofthe document dt.14-10-1964, 1[st] respondent could not havegranted any permission to 2[nd] /3[rd] respondents for makingconstruction.

6. The learned Standing Counsel for 1[st] respondentsubmits that the petitioner’s primary grievance is that respondentNos.2 and 3 have been granted permission by 1[st] respondent to make construction in some of the property of the petitioner; thatpetitioner is disputing the title of respondent Nos.2 and 3; that 1[st]respondent would only look into prima facie title of 2[nd] respondentbefore granting permission; the 2[nd] respondent was convincedabout the title of 2[nd] respondent and therefore the impugnedpermission was granted. He further submits that petitioner has aneffective remedy of approaching the Civil Court to decide about thetitle of the subject property and the Writ Petition be dismissedgranting liberty to the petitioner to approach the competent CivilCourt.

7. The 3[rd] respondent filed a counter affidavit statingthat permission was granted to respondent no.s 2 and 3 by 1[st]respondent for construction of sub cellar, cellar for parking, ground,1[st] floor for shops + three floors for office building in front side andsub cellar, cellar, stilt for parking + 5 upper floors for 8 residentialflats in each floor in rear side under the impugned permit dt.06-06-2014 in the premises bearing Municipal No.3-6-784/12 & 13 in Sy.No.137, Narayanguda, Himayatnagar, Hyderabad.

8. It contended that 2[nd] respondent is the absoluteowner of this property measuring 3506.448 sq. yds in MunicipalNo. 3-6-784/12, which was popularly known as‘Venkatesh Theatre’; that Smt.B.Subhadra, Smt. P.Lalitha and Smt.P.Lakshmi Madhavi are the absolute owners of the propertyadmeasuring 2337.632 sq yds bearing Municipal No.3-6-784/12,popularly known as ‘Srinivasa Theatre’, situated at Narayanguda,Hyderabad; the petitioner had not impleaded these persons in theWrit Petition and the Writ Petition is to be dismissed on the groundof non-joinder of necessary parties. It contended that the sister of2[nd] respondent by name Smt.Y.Rajya Lakshmi is the absolute owner of the portion of the land known as ‘bank building’ facing themain Narayanaguda road, admeasuring 267 sq yds bearingMunicipal No.3-6-784/13.

9. It is contended that originally one B.Gopal Krishna@ B.Gopala Krishnaiah purchased the property comprising ofopen land admeasuring 6111.08 sq yds situated at Himayathnagarroad, Narayanguda, Hyderabad under a registered sale deed dt.14-10-1964 bearing document No.2960 of 1964from Smt.P.C.Sitamma and Smt. Moinunnissa Begum; the areawas earmarked in the sketch/plan annexed to the sale deed; thesaid Gopala Krishnaiah obtained sanction from the MunicipalCorporation of Hyderabad for construction of two theatres and acommercial building therein; the theatres were named as‘Venkatesh 70 MM and Srinivasa 35 MM’ and the commercialbuilding was known as ‘bank building’; the said Gopal Krishnaiah died on 28-04-1980 leaving behind his wife Smt.B.Radhamma, twosons B.Papa Raju and B.V.Raju (2[nd] respondent) and onedaughter Smt. Y.Rajya Lakshmi; the property, owned and obtainedby 2[nd] respondent Sri B.V.Raju along with Smt. Y.Rajya Lakshmi,was partitioned and 2[nd] respondent had been allotted the areaover which Venkatesh 70 MM theatre stands admeasuring3506.448 sq yds bearing M.No.3-6-784/12 at Narayanguda,Hyderabad; Sri B.P.Raju was allotted area over which Srinivasa 35MM theatre stands which is of extent 2130.80 sq yds in M.No.3-6-784/12 at Narayanguda, Hyderabad; and Smt.Y.Rajya Lakshmihad been allotted the portion of the land known as ‘bank building’facing the main Narayanguda road admeasuring 267 sq ydsbearing M.No.3-6-784/13 at Narayanguda, Hyderabad. It furthercontends that B.Papa Raju died on 08-04-1995 leaving behindSmt.B.Subhadra, Smt. P.Lalitha and Smt. P.Lakshmi Madhavi as

his legal heirs to succeed to the property in Municipal No.3-6-784/12, admeasuring 2130.80 sq. yds situated at Narayanguda,Hyderabad known as Srinivasa 35 MM; out of the total areaallotted to 2[nd] respondent an extent of 481.248 sq yds wasaffected in road widening for construction of Narayanguda flyoverleaving an extent of 3025.20 sq yds in Municipal No.3-6-784/12;likewise, out of the area allotted to Smt. Y.Rajya Lakshmi, anextent of 100 sq yds was affected in road widening forconstruction of the said fly over and balance area of 167 sq yds inMunicipal No.3-6-784/13; that Smt. Y.Rajya Lakshmi gifted this 167sq yds under registered gift deed dt.22-03-2004.

10. It contended that the property of 2[nd] respondent andthe property of Smt. Y.Rajya Lakshmi are contiguous to theproperty of Smt.B.Subhadra and others and all these personsentered into development agreement with 3[rd] respondent on 19-03-2012 for development of the extent of 5323 sq yds therein; on04-04-2012, 3[rd] respondent approached 1[st] respondent for makingconstructions therein and also paid a fee of Rs.63,39,550/-; forconstructions made during the time when the plans where pendingfor sanction, the 1[st] respondent had collected compounding fee ofRs.20,000/- from 3[rd] respondent; therefore any constructionsmade pending sanction cannot be termed to be illegal.

11. It also contended that 1[st] respondent grantedimpugned permission in accordance with provisions of the Act; theplan attached to the sale deed dt.14-10-1964 indicated the totalarea as 6111.08 sq yds, and petitioner cannot complain that in thesale deed extent is not specifically mentioned since boundaries ofthe properties were clearly mentioned. The 3[rd] respondent furthercontended that the contention of the petitioner that she succeeded to the ancestral property in Sy. No.135/1, 135/2, 136/1 and 136/2left behind by her father Syed Valiullah Hussani is false andincorrect and the Writ Petition has been filed only to causewrongful loss to the respondents and there are no merits in it.

12. A reply affidavit has been filed by the petitionercontending that the constructions made prior to grant of permitcould not have been regularized by grant of the impugned permitand that 1[st] respondent is acting in collusion with respondentNos.2 and 3 and has granted the impugned permission in flagrantviolation of law. The contents of the counter affidavit filed by 3[rd]respondent were denied and it is asserted that as per TSLR, theentire area of Sy. No.137 is only 2500 sq yds and not more. It isfurther contended that the constructions made prior to thepermission are illegal and are liable to be demolished and 1[st]respondent cannot regularize the illegal constructions made byrespondent Nos.2 and 3.

13. I have noted the submissions of both sides.

14. Although the petitioner claimed to have succeededto properties of her father Syed Valiullah Hussani in Sy. Nos.135/1,135/2, 136/1 and 136/2, the right of petitioner in Sy. Nos.135/1,135/2, 136/1 and 136/2 has been disputed by 3[rd] respondent. Thepetitioner has merely filed an extract of the Town Survey LandRecord (TSLR) in support of the above plea. I n HyderabadPotteries Private Limited v. Collector, Hyderabad District &

another[[1]], this Court has categorically held that the entries inTSLR cannot be proof of title.

15. Even otherwise according to the petitioner, herproperty is in Sy. No.135,136 and not in Sy. No.137. There is no dispute that impugned permission was granted by 1[st] respondentto respondent Nos.2 and 3 to make construction in Sy. No.137. So petitioner has no locus to question grant of permission by 1[st]respondent to respondents 2 and 3 in land which does not belongto her.

16. The petitioner also contended that 3[rd] respondenthad obtained permission even for plots of the petitioner and thatrespondent Nos.2 and 3 had encroached upon petitioner’sproperty. The questions (i) whether petitioner has any right, title orinterest in Sy. Nos.135/1, 135/2, 136/1 and 136/2 and (ii) whetherthe respondent Nos.2 and 3, while making construction in Sy.No.137, have encroached into the property of the petitioner, arequestions of fact, which require to be determined by a Civil Courtby establishing the ownership and extent of the property of boththe petitioner as well as 2[nd] respondent’s families and determining,maybe through an Advocate Commissioner/Surveyor, thatconstructions being made by 3[rd] respondent are in petitioner’sland. The said issues cannot be gone into in this Writ Petition filedunder Art.226 of the Constitution of India.

17. According to the counter filed by 3[rd] respondent,apart from 2[nd] respondent, his sister Smt. Y.Rajya Laklshmi andhis brother B.Papa Raju’s legal heirs are owners of separateextents of land in respect of which permission has been obtainedby 3[rd] respondent. In spite of such plea having been taken by 3[rd]respondent, the petitioner has not chosen to implead the saidpersons. In my opinion, they are necessary parties to the WritPetition and their non-joinder is fatal of the Writ Petition.

18. The petitioner has also alleged that the sale deed dt.14-10-1964, on the basis of which permission was grantedto 3[rd] respondent, did not mention area of land conveyed under it. Admittedly the said sale deed contained specific boundaries and asketch is also attached thereto which is referred to in clause-1 ofthe sale deed. The correctness of the sketch is no doubt disputedby the petitioner. In my opinion, what is the extent of land coveredby the sale deed also is a fact which needs to be decided on thebasis of evidence by a Civil Court.

19. The question whether 3[rd] respondent has madeconstruction before obtaining the sanctioned plan or subsequentthereto, in my opinion, is not very significant having regard to thefact that the construction made by 3[rd] respondent is stated to havebeen compounded on payment of Rs.20,000/- by 1[st] respondent.In any event the material placed by petitioner before this courtdoes not show that petitioner has right , title or interest even in landin Sy.No.135, 136 and admittedly land in Sy.No.137 , wherepermission for construction was granted to 2[nd] and 3[rd] respondent,does not belong to her.

20. Therefore, granting liberty to the petitioner toapproach the competent Civil Court to establish (i) her right, titleand interest in land claimed by her in Sy.No.135, 136 and (ii) that2[nd] and 3[rd] respondents have encroached upon her property andhave made constructions in her property, the Writ Petition isdismissed. No costs.

21. As a sequel, miscellaneous petitions pending, if any,shall stand disposed of.

Date : 30-12-2014

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JUSTICE M.S. RAMACHANDRA RAO

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[1]2001(3) ALT 200