Telangana High Court
Tummala Narsaiah vs State Of Telangana on 18 December, 2020
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION Nos.11226 of 2019 and 20201 of 2020
COMMON ORDER:
Since the issue involved in both the writ petitions is one and the same, they are being disposed of by this common order. With the consent of both the Counsels, the main Writ Petitions are being disposed of.
2. Heard Sri D.V.Sitarama Murthy, learned senior counsel, appearing on behalf of Sri Rajagopallavan Tayi, learned counsel for the petitioners in W.P.No.11226 of 2019, Sri Mamidi Avinash Reddy, learned counsel for the petitioner in W.P.No.20201 of 2020, the learned Government Pleader for Municipal Administration for respondent No.1, Sri Sampath Prabhakar Reddy, learned Standing Counsel for GHMC for respondent Nos.2 and 3, and Sri Vedula Srinivas, learned counsel for respondent No.4.
3. These two writ petitions are filed seeking to cancel the building permission dated 06.10.2018 granted in favour of respondent No.4 in respect of Plot Nos.2 and 3 in survey Nos.159 and 160 situated at Kakatiya Nagar, Nacharam, under GHMC, Ranga Reddy District. W.P.No.11226 of 2019 is filed by one T.Narsaiah and another claiming to have purchased plot Nos.2 and 3 through registered sale deed 11.01.2018 bearing document No.779/2018 and W.P.No.20201 of 2020 is filed by the subsequent purchaser from T.Narsaiah and others who have sold plot No.2 and 3 vide registered sale deed dated 28.02.2020.
2 AAR,J W.P.Nos.11226/2019 & 20201/2020
4. For the sake of convenience, the facts in W.P.No.20201 of 2020 are being referred to.
5. The petitioner is the owner of the property bearing Plot Nos.2 and 3 in Survey Nos.159 and 258, admeasuring 760.70 square yards situated at Kakatiya Nagar, Nacharam, having purchased the same under a registered sale deed dated 28.02.2020. It is stated that originally one Late Khaisaruddin Khan and his wife Shajaham Begum were the absolute owners of the land admeasuring Ac.1.33 guntas in Survey No.159 and Ac.1.39 guntas in Survey No.258 totally admeasuring Acs.3-32 guntas situated at Nacharam Village, Kapra, Uppal Mandal, Ranga Reddy District. The said properties were subject matter of C.S.No.14 of 1958 before this Court and the same was allotted to Khaisaruddin Khan and his wife Shajahan Begum vide Receiver-cum-Commissioner Certificate, dated 23.07.1980. Thereafter, the owners of the land bearing Sy.Nos.159 and 258 and the owners of the adjacent lands have formed into an Association and applied for layout permission by dividing the said lands into plots. The Vice Chairman, Hyderabad Urban Development Authority, had approved the layout vide proceedings dated 03.01.1990. After the death of Shajahan Begum, her two sons Kareemuddin Khan and Fasiuddin Khan succeeded to the subject property, and due to family and financial needs, Kareemuddin Khan along with the legal heirs of Fasiuddin Khan alienated the subject property in favour of Sri Tummala Narasaiah (petitioner No.1 in W.P.No.11226 of 2019) and three others (hereinafter referred to as 'the vendors'), who in turn have sold the subject property to the petitioner herein vide registered sale deed dated 28.02.2020.
3 AAR,J W.P.Nos.11226/2019 & 20201/2020
6. According to the petitioner, when his vendors tried to fence the subject land with stone khadis, respondent No.4 interfered with the same, and therefore, his vendors filed O.S.No.154 of 2018 on the file of the I Additional Junior Civil Judge, Ranga Reddy District, seeking perpetual injunction. Since respondent No.4 failed to enter appearance, the said suit was decreed ex parte. Thereafter, when the respondent No.4 continued to interfere with the possession of the vendors of the petitioner, they filed E.P.No.4 of 2019. In the said E.P., E.A.No.5 of 2019 was filed seeking police protection and the same was allowed. As the police failed to provide aid/protection, the vendors of the petitioner filed W.P.No.6019 of 2019 and this Court by order dated 04.04.2019, directed the Station House Officer, Nacharam, to provide police protection as directed in the E.A.No.5 of 2019.
7. While so, respondent No.4, suppressing the material facts, obtained permission for construction of stilt + five upper floors vide permit dated 06.10.2018 in respect of the subject plots. Under the guise of the said permission, respondent No.4 is claiming right over the subject property. In fact, there is a building existing in Plot No.1 and Plot Nos.2 and 3 are vacant plots. But, respondent Nos.2 and 3, without verifying the physical possession or conducting inspection of the subject site, granted permission in favour of respondent No.4. Therefore, the vendors of the petitioner gave a complaint to respondent No.3 on 15.03.2019 for cancellation of the building permission. But, so far, respondent No.3 has not passed any orders on the said complaint. Hence, the writ petition.
4 AAR,J W.P.Nos.11226/2019 & 20201/2020
8. Counter is filed by the 4th respondent contending that the writ petitioner in W.P.No.20201 of 2020 has purchased the property, which is the subject matter of these two writ petitions, fully knowing well about the litigation pending in respect of the property. That the respondent No.4 has purchased plots No.2 and 3 through registered sale deed bearing No.994 of 1982, dated 28.02.1982, to which document the predecessors-in-interest of the writ petitioner were the vendors along with ten others and ever since the date of purchase, the respondent No.4 was in possession of the property. That, when some 3rd party persons dispossessed the 4th respondent, she was constrained to file a suit on the file of the Principal Senior Civil Judge, Ranga Reddy District, and the same was numbered as O.S.No.202 of 2005, the said suit was decreed ex parte on 24.07.2009. That the defendants in the said suit filed an I.A. to set aside the ex parte decree but the said I.A. was dismissed and the order was confirmed in C.R.P.No.813 of 2013. Thereafter, the S.L.P. filed before the Hon'ble Supreme Court against the order passed in C.R.P.No.813 of 2013 was also dismissed on 19.01.2015. Thereafter, the 4th respondent filed E.P.No.202 of 2010 for execution of the said decree passed in O.S.No.202 of 2005 and the Bailiff has put the 4th respondent in possession of the subject property on 03.09.2012 under a cover of panchanama. That, this respondent is in possession and enjoyment of the property initially since the date of purchase and thereafter from the date the bailiff put her in possession i.e., 03.09.2012. That, the GHMC having come to the conclusion that the 4th respondent is having prima facie title and physical possession has granted the building permission. That, the 5 AAR,J W.P.Nos.11226/2019 & 20201/2020 Corporation cannot cancel the building permission granted to the 4th respondent at the instance of the writ petitioners as they do not have any title to the subject property and in case, the writ petitioners dispute the title of the respondent, they have to agitate their rights before a competent Civil Court. That, the vendor of the writ petitioner obtained the ex-parte order against the 4th respondent by playing fraud on the Court and by showing the wrong address of the respondent No.4 deliberately. That, on coming to know about the ex parte decree passed against her, the 4th respondent wanted to file an Interlocutory Application to set aside the ex parte decree and when a Copy Application was filed, the same was returned on the ground that there was no such order. Thereafter, she was constrained to approach this Hon'ble High Court by way of C.R.P. being C.R.P.No.990 of 2020 and this Hon'ble Court suspended the ex parte decree.
9. Sri D.V.Sitaramamurthy, learned Senior Counsel appearing on behalf of Sri Rajagopallavan Tayi, has vehemently argued that the GHMC without proper verification of title has granted building permission, that the petitioners filed their objections, dated 15.03.2019, but the GHMC was not considering the same and cancelling the permission given to the 4th respondent. That the sale deed relied by the respondent No.4 is a sham and fictitious document, which does not confer any title to the respondent No.4 and has taken this Court through the various clauses in the registered sale deed relied by the 4th respondent, to buttress his contentions that the sale deed was executed by the persons who were not authorized to execute the said sale deed. The learned Senior Counsel has drawn the attention of this Court to the sale 6 AAR,J W.P.Nos.11226/2019 & 20201/2020 deed, dated 28.02.1982, executed in favour of the respondent No.4 by Smt.Shahjahan Begum and 11 others through their GPAs - Sri M.Chandrasekhar Rao and Sri G.Agaiah, wherein plot Nos. 1 and 3 admeasuring 744.34 Sq.Yds., in Sy.Nos.159 and 160 of Nacharam village, were sold. Learned Senior Counsel has pointed out to the various G.P.As. which are mentioned in the sale deed, dated 28.02.1982, and has stated that the GPAs do not mention that any layout was approved, plots to be sold, but only speaks of Agricultural lands situated at Nacharam village. The main thrust of the argument of the learned Senior Counsel is that in the absence of any specific recital in the GPA or in the absence of any approved layout as on the date of the execution of the sale deed in favour of respondent No.4, the execution of the sale deed by the GPA holders in respect of Plot Nos.1 and 3 is one without any authority or law, and the same is a void, sham, illegal document which does not confer any title or right on the purchasers. That, as on the date of execution of the GPA., no specific allotment of land in any survey number had taken place under the decree and therefore the alleged owners also did not have any authority to execute the GPA. That, GHMC ought not to have granted building permission on the basis of this sham document. That, instead of canceling the building permission, the authorities have kept quiet. The learned Senior Counsel has relied on the decision reported in GUNTUKA RAJA RAM v. STATE OF TELANGANA AND ORS1.
10. Per contra, Sri Vedula Srinivas, learned Counsel appearing on behalf of the respondent No.4, has vehemently contended that the writ petitions itself are not maintainable. He has argued that 1 2017 (4) ALD 415 7 AAR,J W.P.Nos.11226/2019 & 20201/2020 once the authorities have granted the building permission in favour of a person, and in case any person is aggrieved, it is for that party to approach the Civil Court and not for this High Court to go into the disputed questions of title. The documents relied upon by the petitioner and his vendor are sham and bogus documents which do not create any title in favour of the petitioner or his vendor. Once the land is sold through a registered sale deed, all the rights, title, interest of the original owner stood divested and the original owners have no subsisting right to deal with the said property. Learned Counsel has argued that even the documents filed by the petitioner along with the writ petition have to be ignored as they are not the correct documents and only the documents filed by the respondent No.4 have to be looked into. Learned Counsel has stated that the ex parte decree obtained by the vendor of the petitioner was by playing fraud on the Court, the address of the respondent No.4 was deliberately shown wrong. The address of the 4th respondent pertains to the year 1982 and the respondent No.4 was no longer living at that address and has drawn the attention of this Court to the judgment and decree, dated 24.07.2009, in O.S.No.202 of 2005 to show the correct address where she is residing. The ex parte decree obtained by the petitioner was by playing fraud and the same was not implemented till date. That the judgment and decree passed in O.S.No.202 of 2005 has been suspended by this Court in C.R.P.No.990 of 2020 vide order, dated 28.09.2020. The learned Counsel has taken this Court through the earlier judgment and decree, dated 24.07.2009, passed by the Principal Senior Civil Judge, Ranga Reddy District in O.S.No.202 of 2005, the order, dated 11.12.2012 passed in 8 AAR,J W.P.Nos.11226/2019 & 20201/2020 I.A.No.984 of 2012 seeking to set aside the order, dated 24.07.2009, the order, dated 18.10.2014, passed by this Court in C.R.P.No.813 of 2013 and the order, dated 19.01.2015, passed by the Hon'ble Supreme Court in Special Leave to Appeal (C) No.659/2015, the order, dated 24.08.2012, passed in E.P.No.202 of 2010 in O.S.No.202 of 2005, and the panchanama dated 31.08.2012, evidencing that the possession was handed over to the respondent No.4. That the petitioner was never in possession of the subject property at any point of time and has also drawn the attention of this Court to the counter filed by the Inspector of Police, Nacharam, in the writ petition being W.P.No.6019 of 2019 filed by the petitioner No1 in W.P.No11226 of 2019. Learned Counsel has also drawn the attention of this Court to the sale deed executed in favour of the petitioner in W.P.No.11226 of 2019 showing that 1) Kareemuddin Khan, 2) Smt.Sayeedath Unnisa Begum, and 3) Mohammed Shujauddin Khan claiming to be the legal heirs of late Khaiseruddin Khan had executed the sale deed, but as a matter of fact, late Khaiseruddin Khan died leaving his wife Smt.Shahjahan Begum and 5 sons namely Raoofuddin Khan, Fasiuddin Khan, Zakiuddin Khan, Aizazuddin Khan and Kareemuddin Khan, and all the legal heirs of late Khaiseruddin Khan including the vendors of the writ petitioner had executed a registered sale deed in favour of the respondent No.4 way back in the year 1982. A perusal of the recitals of the GPA vide document No.38 of 1980 will clearly show that the principals had given the GPA Holder the authorization to make the layout and sell the property and has drawn the attention of this Court to the following portions of the GPA:-
9 AAR,J W.P.Nos.11226/2019 & 20201/2020 Do hereby execute this GENERAL POWER OF ATTORNEY being in sound mind, body senses and without any coercion or compulsion, to the effect that we are pattedars of agricultural lands situated at Nacharam village, in various survey numbers, which had fallen to our share in accordance with the Compromise Scheme approved by the Hon'ble High Court, Andhra Pradesh, and as we are not in a position to deal with the said property of agricultural lands and also to get the possession and complete other formalities,....
OUR General Power of Attorney Holders are empowered to enter into any negotiations with any party or parties including the tenants in our lands and settle the dispute to the satisfaction of concerned, keeping in view the overall general interest of executants and also to get mutations in the record of the Revenue Pattas, and then got permission for alienation of the same and finalise dealings for sale in favour of any prospective parties and execution of sale deed only registered in favour of the prospective purchasers, and such terms and conditions as our General Power of Attorney Holders deem fit and proper.
Out General Power of Attorney Holders shall hold the properties on our behalf get them demarcated and convert them into plots for sale in favour of any prospective party or parties at the rates fixed by them. Similar clauses are there in another G.P.A. vide document No.42 of 1980, dated 14.04.1980, and in one of the G.P.A., the survey numbers are also mentioned. That, once the GPA has been given by the original owner and sale deeds are executed in favour of third parties pursuant to the said GPA, the original owner looses all rights, interest, title in the said property and in case, they have any grievance, the only remedy available to the original owner is to proceed against the GPA Holder for rendition of accounts or 10 AAR,J W.P.Nos.11226/2019 & 20201/2020 cancellation of the sale deeds executed by the GPA. But, in the present case, none of the other shareholders i.e., the legal representatives of Khaiseruddin Khan have disputed the GPA or the execution of the sale deeds in favour of the respondent No.4 by the GPA, therefore the vendors of the petitioner in W.P.No.11226 of 2019 will not have any right to sell properties again, that too after a lapse of 36 years.
11. After giving considerable thought to the pleadings, arguments of the learned Counsel and going through the documents filed by the parties, this Court is of the prima facie opinion that the present writ petitions filed seeking cancellation of the Building Permission, dated 06.10.2018, is devoid of merits and the writ petitions are not maintainable for the following reasons:
i) A perusal of the documents show that as on the date of execution of the sale deeds, the vendors of the petitioner in W.P.No.11226 of 2019 had no title or right to sell the property in question in the year 2018, when they have already executed the registered sale deed in the year 1982 through their GPA along with other family members. There is no explanation as to why the other legal heirs of late Khaiseruddin Khan are not parties to the sale deed executed in favour of the petitioner in W.P.No.11226 of 2019.
The family members/Legal Heir affidavit, dated 12.05.2016, filed along with the material papers states that Late Mohammed Khaisar Uddin Khan had only two sons but the registered sale deed executed in the year 1982 by all the legal heirs of Late Mohammed Khaisar Uddin Khan reveals that he had died leaving behind his wife and 5 sons. The contents of the documents relied by the respondent No.4 i.e., the Sale Deed, dated 28.02.1982, 11 AAR,J W.P.Nos.11226/2019 & 20201/2020 bearing document No.994 of 1982 have not being disputed or rebutted by the petitioners either by way of reply or in the writ petition affidavit, the only attack by the learned Counsel was all through on the execution of the sale deed by the GPA holder of the original owner and that the GPA did not have the authority to execute the subject plots. Nowhere in the writ affidavit, the petitioner has stated that late Mohammed Khaisar Uddin Khan had only two sons and not five sons as evidenced in the sale deed executed in the year 1982. Even the recitals in the registered GPAs show that Late Mohammed Khaisar Uddin Khan died leaving behind had six legal heirs i.e., his wife and five sons.
ii) The suit filed by respondent No.4 against the 3rd party reveals that the respondent No.4 had succeeded all the way upto the Supreme Court and the panchanama drawn by the bailiff pursuant to the order in E.P. also points out to the fact that she was put in possession of the property in question. It is also important to extract the relevant portion of the counter filed by the Inspector of Police, Nacharam Police Station, in W.P.No.6019 of 2019 filed by the petitioner in W.P.No.11226 of 2019, which reads as under:
"4. It is respectfully submitted that as per the order in E.P.No.202 of 2010 in O.S.No.202 of 2005 dated :
24.01.2012 on the file of Hon'ble Principal Senior Civil Judge at Ranga Reddy District at L.B. Nagar the bailiff already given the possession to the respondent No.3 by conducting punchnama. As such the respondent No.2 found the relevant documents of the 3rd respondent's associates and the same was informed to the petitioner herein and returned to the police station."
12 AAR,J W.P.Nos.11226/2019 & 20201/2020
iii) Even the judgment and decree, dated 04.07.2018, passed in O.S.No.154 of 2018, passed in favour of the petitioner has been suspended by this Court, vide order dated 28.09.2020, passed in I.A.No.2 of 2020 in CRP No.990 of 2020. It is essential to extract the relevant portion of the order, dated 28.09.2020, which reads as under:
"This Court, by order dated 16.09.2020 called for a report from the Court below with regard to passing of impugned order in I.A.No.1009 of 2019 in O.S.No.154 of 2018. The I Additional Junior Civil Judge-cum-First Metropolitan Magistrate through the District Judge, Ranga Reddy, sent a letter dated 19.09.2020, wherein it is stated that there is no separate order dated 21.06.2019 is passed in I.A.No.1009 of 2018 except the docket order. It is also stated that the learned Judge, who passed the impugned has done so in 100 files and that in all the cases separate orders were not passed except docket orders and the matter is seized of by this Court and it is informed that the learned Judge, who passed the impugned order, is also suspended."
iv) A reading of the above makes it abundantly clear that the petitioners in both the writ petitions have no title or possession of the subject lands and therefore the question of canceling the building permission at their instance does not arise. Though the learned Senior Counsel has relied on Guntuka Raja Ram's case (supra), and argued that the Commissioner ought to have cancelled the building permission and relegated the parties to the Civil Court as the issues involved in the present cases are triable issues. In view of the conclusions reached in the foregoing paras, this Court does not find any merit in the above contention.
13 AAR,J W.P.Nos.11226/2019 & 20201/2020
v) It is well accepted principle of law that where serious disputed questions of title or facts are involved, it is only the competent Civil Court which can give a finding regarding the title, possession etc., based on the evidence on record. The authorities under the GHMC Act do not have the power to decide the title to the property where two rival claimants are seriously disputing the title of one another. Neither the Commissioner or the Deputy Commissioner of the Municipal have the jurisdiction to decide the title dispute between two or more rival parties in respect of the immovable properties. It is only the Civil Courts that have the exclusive domain and jurisdiction to adjudicate the right/title/dispute between the rival parties in respect of the immovable properties. It is only the Civil Court which can record the evidence and taking into account the oral and documentary evidence adjudicate the rights of the parties. The role of the Municipal Commissioner is only to see if the party applying for building permission is having prima facie title or not and whether the building plan submitted are in accordance with the Act, Rules, By-laws, and various G.Os., issued from time to time. Ultimately, if an decree is passed by a Civil Court, the same is not only binding on the parties but also the Municipal and Revenue authorities.
vi) The Three-Judges Bench of the Hon'ble Supreme Court in State of Gujarat v. Patil Raghav Natha2, at para 14, has held as under:
14. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the 2 (1969) 2 SCC 187 14 AAR,J W.P.Nos.11226/2019 & 20201/2020 dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not to decide the question of title himself against the occupant.
vii) In view of the above proposition of law neither the authorities under the GHMC Act nor the High Court under Article 226 of the Constitution of India can intervene where serious disputed questions of title or facts are involved, the proper remedy for the aggrieved party is to approach the Civil Court. This Court does not find any merits in the present writ petitions and the same are accordingly dismissed.
viii) This order does not in any way preclude the petitioners from agitating their rights before the competent Civil Court if any Civil Suit is filed by the petitioners or their vendors. Any construction made in the subject lands will be subject to the final result of that suit and the 4th respondent herein will not claim any equities in case any adverse orders are passed.
ix) Any observations and findings made in this order are for the purpose of deciding these writ petitions only and should not be construed as giving any finding on merits or demerits on the title of the parties. In case, any civil suit is filed, the Civil Court should decide the case on its own merits, without being influenced by any of the observations or findings recorded in these writ petitions.
Miscellaneous petitions pending in this writ petition, if any, shall stand closed.
________________________ A.ABHISHEK REDDY, J Date :18-12-2020 sur/va