Telangana High Court
Nsvr Murthy vs The State Of Telangana on 30 November, 2021
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION Nos.20368, 20882 AND 537 OF 2020
ALONG WITH I.A. Nos.2 & 4 OF 2020 IN W.P. Nos.20368 & 20882
OF 2020 AND I.A. No.3 OF 2020 IN W.P. No.20368 OF 2020
COMMON ORDER:
W.P. No.20368 of 2020 is filed to declare the Notice No. G1/402/TP/MC/MNK/2020 dated 06/11/2020, issued by respondent No.3 to a dead person and unnamed persons as illegal and set aside the same.
2. The very same petitioner also filed W.P. No.20882 of 2020 to declare the high handed and illegal action of respondent Nos.1, 2, 4, 3 and 6 in demolishing the compound wall constructed around the land admeasuring Ac.0-31 Gts. in Survey No.300 of Puppalguda Village belonging to the petitioner and his family members as illegal and for a consequential direction to respondent Nos.2 and 6 to pay an amount of Rs.25,00,000/- (Rupecs Twenty Five Lakhs Only) towards damages.
3. The petitioner in the above two writ petitions along with two others filed W.P. No.537 of 2020 to declare the proceedings No.T6/ 966/ Gandipet/Bandlaguda/2019, dated 25.11.2019 issued by the District Collector, Ranga Reddy District (respondent No.2 therein) granting administrative sanction for the work order for laying the road through the petitioners' lands in Survey No.300, admeasuring Ac.0-31 Gts. of Puppalaguda Village as illegal and to set aside the same.
4. Since the parties as well as the lis involved is common, all these writ petitions are disposed of by this common order. 2
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5. Heard Mr. T. Surya Satish, learned counsel for the petitioners in W.P. Nos.20368 and 20882 of 2020 and also representing Mr. Ch. Vidya Sagar, learned counsel for petitioner in W.P. No.537 of 2020, learned Government Pleader for Municipal Administration & Urban Development, learned Government Pleader for Panchayat Raj, learned Government Pleader Home, learned Government Pleader for Revenue, Mr. N. Praveen Kumar, learned Standing Counsel appearing on behalf of Manikonda Municipality, Mr. E. Ajay Reddy, learned Senior Counsel representing Mr. Katika Ravinder Reddy, learned counsel and Mr. Sampath Prabhakar Reddy, learned counsel, both appearing on behalf of unofficial respondent in W.P. Nos.20368, 20882 of 2020 and W.P.No.537 of 2020 respectively.
6. The petitioners in all the above writ petitions claim that they are the owners of Ac.0-31 guntas of land in Survey No.300 of Puppalguda Village, erstwhile Rajendranagar Mandal and presently Gandipet Mandal under Manikonda Municipality, Ranga Reddy District, which is hereinafter referred to as 'the subject property'. According to them, their ancestor, late Nagula Laxmaiah, along with his three sons viz., late Nagula Shivaiah, late Nagula Laxmaiah and late Nagula Gouraiah, were the original pattadars and possessors of the land admeasuring Acs.13.01 guntas in Survey No.300 of Puppalguda Village.
7. As per the family understanding, they have obtained pattadar passbooks in the names of their grandchildren including late Mr. Nagula 3 KL,J W.P. No.20368 of 2020 & batch Sattaiah and two others. Out of the said land admeasuring Acs.13-01 guntas, they have sold an extent of Acs.12-10 guntas of land to third parties during the year 2002 itself by executing various registered sale deeds including the registered sale deed bearing document No.8326 of 2002, dated 03.10.2002 in favour of one K. Krishna Prasad for an extent of Acs.2.00 guntas. Thus, according to them, Ac.0-31 guntas of land is left over and there are 130 members who are heirs and successors of the above said Nagula Laxmaiah and his sons.
8. Due to internal differences above among them, they have not developed the subject land. In order to protect the subject land, the petitioners constructed a compound wall on the western side and erected a gate. Compound wall on the other two sides was already constructed by the neighbours, while the third side is closed with tin sheets. Taking advantage of the same, owner of the neighbouring property, namely Mr. K. Shashank, who had given his property for development, had influenced the then Engineering Department of Panchayat Raj and Revenue Authorities to lay a road from the subject land and contributed an amount of Rs. 10.00 lakhs. On his instigation, the Commissioner of Manikonda Municipality (hereinafter referred to as "the Commissioner') demolished the compound wall and also issued a notice dated 06.11.2020 under Section - 254 of the Telangana Municipalities Act, 2019 (hereinafter referred to as "the Act, 2019') addressing to Nagula Sattaiah and his 24 family members at Survey No.300 of Puppalguda Village, Manikonda Municipality, wherein it is stated that Nagula Sattaiah and his 4 KL,J W.P. No.20368 of 2020 & batch 24 family members have constructed a compound wall and erected a gate unauthorizedly without obtaining any permission from the Municipality. Thus, the Commissioner directed them to submit explanation within seven (07) days along with supporting document. Challenging the same, the petitioner filed W.P. No.20368 of 2020.
9. Mr. K. Shashank, who is hereinafter referred to as 'unofficial respondent' filed I.A. No.2 of 2020 to implead him as respondent No.4 in W.P. No.20368 of 2020 and I.A. No.4 of 2020 to implead him as respondent No.7 in W.P. No.20882 of 2020 on the ground that the said road is a public road and the petitioners are trying to encroach upon the same with an ulterior motive. It is further contended that the documents filed and relied upon by the petitioners and the unofficial respondent would reveal that there exists a road and it is a public road. The said unofficial respondent and others are owners of land admeasuring Acs.11- 00 guntas in Survey No.90 of Kokapet Village, Gandipet Mandal under Narsingi Municipality. They have given the said property for development. To develop the said existing public road, he had contributed Rs.10.00 lakhs. Therefore, the proceedings dated 25.11.2019 were issued by the District Collector, Ranga Reddy District, respondent No.2 in W.P. No.537 of 2020, according administrative sanction for laying the road. According to him, the petitioners herein tried to encroach the said public road by constructing a compound wall without obtaining a valid permission. Therefore, the Municipality had rightly 5 KL,J W.P. No.20368 of 2020 & batch issued notice dated 06.11.2020 and demolished the compound wall. In view of the same, he is a necessary party.
10. As stated above, the petitioners herein claim that the said road is in a patta land belong them and their family members, whereas according to the unofficial respondent, it is a public road. The pleadings in all the three writ petitions would reveal that the subject land is opposite the land of the unofficial respondent. Therefore, this Court is of the considered view that the unofficial respondent is a necessary and proper party to W.P. Nos.20368 and 20882 of 2020 and, therefore, I.A. Nos.2 and 4 of 2020 in W.P. Nos.20368 and 20882 of 2020 respectively are allowed.
11. The unofficial respondent further contends that the said road is in existence since decades as is evident from the record and knowing fully well about the same, the petitioners instead of submitting explanation to the notice dated 06.11.2020 approached this Court and obtained interim order. Due to the interim order granted by this Court, the unofficial respondent and his developer are not in a position to proceed with construction in pursuant to the registered Development Agreement bearing document No.9570 of 2019, dated 21.08.2019. According to him, the District Collector, Ranga Reddy District, has rightly issued proceedings dated 25.11.2019 and there is no error in it. With the said contentions, the unofficial respondent sought to dismiss the said writ petitions.
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12. The Principal Secretary, MA & UD has also filed counter affidavit in W.P. No.20882 of 2020 contending that the subject issue is before the Commissioner and he has rightly demolished, compound wall on the ground that the petitioners had not obtained any permission for construction of compound wall. Therefore, the Commissioner has not committed any illegality or irregularity. In view of the same, there is no need of awarding any damages as claimed by the petitioners. It is further contended that the petitioners sought the said damages with a mala fide intention and to build up pressure on the Principal Secretary and the Commissioner. With the said submissions, he sought to dismiss the said writ petitions.
13. The Commissioner has also filed a counter in W.P. No.20882 of 2020 contending that he does not know about the death of Nagula Sattaiah. After submission of reply dated 13.11.2020 to the notice dated 06.11.2020, he came to know about the death of Nagula Sattaiah. However, according to him, the petitioners herein have already submitted their explanation dated 13.11.2020 and he would consider the same and pass appropriate orders in accordance with law.
14. It is further contended that the petitioners have made construction by blocking the existing road without permission from the Municipality which caused inconvenience to the public. Therefore, the Municipality has no other option except to take steps by way of issuing notice dated 06.11.2020 under Section - 174 (4) of the Act, 2019. The 7 KL,J W.P. No.20368 of 2020 & batch Principal Secretary, MA & UD is nothing to do with the demolition activity of Municipality. The petitioners constructed the compound wall without permission by encroaching the already existing 40 feet road towards southern side. In the Sale Deed bearing document No.8326 of 2002, dated 03.10.2002, there is specific mention that on either side western (with one room) and east side (erection of shed) 40 feet road. Thus, in the said sale deed, there is specific mention about the existence of 40 feet road towards southern side. As per Google Earth Maps- 2003, 2008, 2013 and 2018, it is shown as road. With the said submissions, he sought to dismiss all the writ petitions.
15. The above stated rival submissions would reveal that the entire dispute is with regard to the existence of 40 feet road. According to the petitioners, it is a private road existing in Survey No.300 of Puppalguda Village. The said land belongs to them and their family members. According to the Commissioner and the unofficial respondent, the said road existing is a public road and the petitioners tried to encroach the same, in the said course of action, they have constructed a compound wall and erected a gate without obtaining permission.
16. It is relevant to note that there is no dispute with regard to the extents of land owned by the petitioners and their family members and the unofficial respondent. The dispute is with regard to the said road. In the schedule of property in sale deed bearing document No.8326 of 2002, dated 03.10.2002 executed by late Nagula Sathaiah and others including 8 KL,J W.P. No.20368 of 2020 & batch the petitioners in favour of Mr. K. Krishna Prasad in respect of sale of land to an extent of Acs.2-00 guntas from out of Ac13-01 guntas in Survey No.300 (Part), situated at Puppalguda Village, southern boundary is mentioned as "40 ft. wide road'. According to Mr. T. Surya Satish, learned counsel for the petitioners, the said Vendee, Mr. K. Krishna Prasad, misrepresented the facts and taking advantage that the Executors therein are illiterates, wrongly mentioned the southern boundary as '40 ft. wide road'. In fact, it is not a public road and it is in private patta land of the petitioners and their family members in Survey No.300 of Puppalguda Village. Therefore, the petitioners herein have filed a suit vide O.S. No.l44 of 2021 seeking rectification of the boundaries and the said suit is pending. According to him, the unofficial respondent herein is also a party to the said suit.
17. Like-wise, in the schedule of property in the sale deed bearing document No.9648 of 1990, dated 30.07.1990 through which the unofficial respondent had purchased the land to an extent of Acs.4.00 guntas in Survey No.90 Part, situated at Kokapet Village from one Kasula Srinivasa Rao, the northern boundary is mentioned as 'Village Road'. In the plan annexed thereto also, there is specific mention about the said road. In the schedule of property in the Development Agreement
- cum- Irrevocable General Power of Attorney bearing document No.9570 of 2019, dated 21.08.2019 executed by the unofficial respondent and three others in favour of M/s. Cybercity Infrastructure Private Limited in respect of the development of land admeasuring Acs.11-00 9 KL,J W.P. No.20368 of 2020 & batch guntas in Sy.No.90, situated at Kokapet Village, there is specific mention about 40 feet wide existing road on the northern side.
18. Referring to the proceedings dated 25.11.2019 issued by the District Collector, Ranga Reddy District and the proceedings dated 06.02.2019 issued by the District Panchayat Raj Engineering, Ranga Reddy District and the note approval dated 23.11.2019 issued by the District Collector, Mr. E. Ajay Reddy, learned Senior Counsel, would submit that it is a public road and, therefore, the unofficial respondent being the owner of the above said property contributed an amount of Rs. 10.00 lakhs with a request to develop the said land. On considering the same only, the District Collector has issued the proceedings dated 25.11.2019 granting administrative sanction for execution of the said work. Thus, there is no irregularity or illegality in the said proceedings.
19. In the counter affidavit filed by the Commissioner, there is specific mention that it is an existing public road, and the petitioners herein had constructed compound wall blocking the said existing road without permission which caused inconvenience to the public in general. According to him, in the sale deed bearing document No.8326 of 2002 executed by the petitioners and his family, there is specific mention about the existence of 40 feet wide road towards southern side. Even Google Earth Maps for the years - 2003, 2008, 2013 and 2018 shows the said road. Thus, the above said facts would reveal that there exists 40 feet wide road. According to the unofficial respondent and the Municipality, 10 KL,J W.P. No.20368 of 2020 & batch it is a public road. The petitioners' claim that the said road is in patta land belongs to them and their family members. However, the petitioners have not obtained any permission for construction of compound wall. Even assuming for a moment without admitting that the petitioners and their family members are owners of the subject land in Survey No.300 and the said road is in the subject land, for construction of compound wall, the petitioners and their family members have to obtain construction permission from the Municipality, which admittedly they have not obtained. Thus, the petitioners and their family members have constructed the compound wall unauthroizedly. Therefore, the Commissioner has rightly demolished the said unauthorized construction. The said fact is not disputed by the petitioners herein. Though there is specific contention in the counter filed by the Commissioner that the sad construction of compound wall is without permission and the petitioners tried to encroach upon the public road by way of construction of compound wall unauthorizedly, the petitioners have not filed any reply controverting the said allegation. Thus, the petitioners had constructed the compound wall unauthorizedly. Therefore, the petitioners herein cannot claim damages from the official respondents and that they are not entitled for any relief in W.P. No.20882 of 2020.
20. It is relevant to note that the petitioners herein have filed a suit vide O.S. No.144 of 2021 against the unofficial respondent and another seeking rectification of boundaries in the sale deed bearing document No.8326 of 2002, dated 03.10.2002. Therefore, the petitioners and the 11 KL,J W.P. No.20368 of 2020 & batch unofficial respondent are at liberty to take all the defences that are available to them in the said suit.
21. It is relevant to note that the Commissioner had issued a Notice dated 06.11.2020 under Section - 254 of the Act, 2019 addressed to Nagula Sathaiah and his 24 family members stating that they have constructed a compound wall and erected a gate unauthorisedly without obtaining any prior permission. In the counter filed by the Commissioner, it is specifically contended that he does not know the death of the said Nagula Sathaiah and he came to know about the same only on the submission of reply by the petitioners dated 13.11.2020 to the said notice dated 06.11.2020. It is also relevant to note that the petitioners herein have submitted reply on 13.11.2020. Thus, having submitted the said reply dated 13.11.2020 to the notice dated 06.11.2020, the petitioners herein cannot contend that it was not served on them.
22. There is no dispute with regard to the legal position that service of notice on the death person is non-est. However, the petitioners herein have already submitted their explanation dated 13.11.2020. It is for the Commissioner to consider the same and pass appropriate orders in accordance with law. Section - 254 of the Act, 2019 deals with summons to attend and give evidence or produce documents. In exercise of the said powers, the Commissioner had issued the said notice. It is also relevant to note that Section - 174 of the Act, 2019 deals with approval of building permissions. As per Section - 174 (4) of the Act, 2019, the 12 KL,J W.P. No.20368 of 2020 & batch owner or developer shall along with building application form, submit an undertaking that in case of any actual construction made by him or her in violation sanctioned plan, the Government or the Commissioner or the Agency authorized by him or her shall take-up the demolition without issuance of any notice. According to Mr. N. Praveen Kumar, learned standing counsel appearing on behalf of Municipality, the Commissioner in exercise of the said powers under Section - 174 (4) of the Act, 2019, has demolished the compound wall constructed by the petitioners and his family members unauthorizedly.
23. As discussed above, Section - 2 (5) of the Act, 2019 deals with the definition "building" which includes compound wall. Therefore, according to the Commissioner, he had exercised the power under Section - 174 (4) of the Act, 2019 and demolished the compound wall constructed by the petitioners and his family members unauthorizedly without obtaining prior permission.
24. As regards the relief in W.P. No.537 of 2020, as discussed above, the District Collector, Ranga Reddy District, respondent No.2 in W.P. No.537 of 2020, had issued the proceedings dated 25.11.2019 considering the representations dated 21.11.2018, 05.01.2019 of the property owners, his letter dated 23.01.2019, the letter dated 06.02.2019 of the District Panchayat Raj Engineer, representation of the unofficial respondent, respondent No.6 and the District Collector's Note Approval dated 22.11.2019 according sanction for execution of the work. 13
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25. As stated above, according to the Commissioner, Panchayat Raj Department and the District Collector and also the unofficial respondent, it is a public road. The above documents would reveal the existence of 40 feet wide road. Even in the Google Earth Maps filed by the Municipality, there is mention about the public road. Considering the said facts only, the District Collector, Ranga Reddy District, had issued the proceedings dated 25.11.2019 granting administrative sanction for execution of the work.
26. It is also relevant to note that the petitioners had filed the above suit seeking rectification of boundaries in the sale deed bearing document No.8326 of 2002, dated 03.10.2002 executed by the said Nagula Sathaiah and others including the petitioners herein after elapse of about 19 years. The explanation offered by the petitioners is that they are enjoying the said road on the pretext that it is in patta land. According to them, the said Krishna Prasad has played fraud on them and their family members taking advantage of their illiteracy. However, admittedly, there is delay of 19 years in filing the above suit and there is no explanation, much less plausible explanation by the petitioners.
27. It is relevant to note that there is specific allegation against the said unofficial respondent by the petitioner in W.P. No.20368 of 2020 and 20882 of 2020 and also in the explanation dated 13.11.2020 and other documents, but the petitioners have not made him as party to the said writ petitions. Thus, this Court is of the opinion that the unofficial 14 KL,J W.P. No.20368 of 2020 & batch respondent i.e., Mr. K. Shashank is a necessary party to the said writ petitions. In fact, he filed implead applications. Therefore, said writ petitions have to be dismissed even on the ground of non-joinder of proper parties. However, the petitioners have already submitted explanation dated 13.11.2020 to the notice dated 06.11.2020 which respondent No.2 has to consider.
28. It is also relevant to note that according to the petitioners, the said road is in Survey No.300 of Puppalguda Village admeasuring Ac.0- 31 guntas and 130 members are the legal heirs and successors of late Nagula Laxmaiah, and only three members have filed W.P. No.537 of 2020 and others are not before this Court. Even to the above suit, some of them are not parties. There is no explanation from the petitioners with regard to the same. Even according to them, 130 members are claiming right over the subject land. Thus, on the ground that other 127 family members and successors of Nagula Laxmaiah are not made as parties, the writ petitions are liable to be dismissed.
29. It is relevant to note that according to the petitioners, they sold the land admeasuring Acs.12-10 guntas in Survey No.300 of Puppalguda Village out of Acs.13-01 guntas. According to the unofficial respondent, the petitioners and their family members are well aware that it is a public road and leaving the same they have sold the other property to third parties, and now they are trying to occupy the said public road. Thus, at the cost of repetition, it is relevant to note that in the documents referred 15 KL,J W.P. No.20368 of 2020 & batch to above, there is specific mention about the existence of 40 feet wide road. Considering the said facts only, the District Collector has issued the administrative sanction vide proceedings dated 25.11.2019. Thus, this Court is of the considered view that there is no error in it. Therefore, the petitioners in W.P. 537 of 2020 have not made out any case to set aside the proceedings dated 25.11.2019 and thus the said writ petition is liable to be dismissed.
30. In view of the above said discussion and the provisions of law, the Commissioner, Manikonda Municipality, is directed to consider the explanation dated 13.11.2020 submitted by the petitioners to the notice dated 06.11.2020 issued by the Commissioner and pass appropriate orders in accordance with law by putting the petitioner in W.P. Nos.20368 and 20882 of 2020 and the unofficial respondent and also other interested parties on notice and affording them an opportunity of hearing.
31. With the above observations and directions, writ petition No.20368 of 2020 is disposed of, while W.P Nos.537 of 2020 and 20882 of 2020 are dismissed. However, in the circumstances of the case, there shall be no order as to costs.
32. In view of the above discussion, I.A. No.3 of 2020 in W.P. No.20368 of 2020 is allowed and the interim order passed by this Court and extended from time to time stands vacated.
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_________________ K. LAKSHMAN, J 30th November, 2021 Mgr