Telangana High Court
V B Srinivasulu vs State Of Ts on 9 December, 2021
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.19329 OF 2018
ORDER:
This Writ Petition is filed to declare the action of the 3rd respondent in rejecting the complaint lodged by the petitioner in Lr.No.49/TPS/Cir-25/GHMC/2017 dated 16.04.2018 as illegal and issue consequential direction to the respondent Nos.2 and 3 to remove the illegal constructions carried out by the respondent Nos.4 and 5 on the portion of the road.
2. Heard Sri R.Sushanth Reddy, learned counsel for the petitioner and Sri Chatla Madhu, learned standing counsel appearing for respondent Nos.2 and 3, Sri V.S.R.M.V.Prasad Sanaka, learned counsel for the 6th respondent and there is no representation for the respondent Nos.4 and 5. Perused the record.
3. FACTS OF THE CASE
i) The writ petitioner claims to be the absolute owner and possessor of the House Plot bearing No.21 in Sy.No.108, Padma Nagar Phase-I, Quthubullapur Mandal, Malkajigiri District, admeasuring 178 sq.yards and he claims that there is road on the eastern side of the said property under the registered sale deed bearing document No.4178 of 2018, dated 19.02.2018.
ii) The respondent No.4 is the owner of the property across the road on the eastern side.
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iii) The 5th respondent purchased an extent of 160 sq.yards vide sale deed dated 12.11.1992 and he gifted the said property to his wife, the 4th respondent on 28.02.2018.
iv) The respondent Nos.4 and 5 started making illegal constructions on the eastern boundary of the petitioner's property where a road exists.
v) The petitioner lodged a complaint dated 20.01.2018 with the 3rd respondent stating that the respondent Nos.4 and 5 were making illegal constructions on the road portion existing on the eastern boundary of his property by encroaching his property and requested to take action against the respondent Nos.4 and 5.
vi) Though the 3rd respondent had issued notices under Section 452(1) and 461(1) under HMC Act, dated 19.02.2018, they have rejected the complaint of the petitioner on the ground that it is not genuine. Accordingly, the 3rd respondent had issued proceedings dated 16.04.2018.
vii) According to the petitioner, respondent Nos.4 and 5 have made construction on the road existing on the eastern side of the petitioner's property and thus blocked ingress and egress. Therefore, he filed the present writ petition.
viii) With the said submissions, he sought to set aside the proceedings, dated 16.04.2018.
4. CONTENTIONS OF THE RESONDENT Nos.2 AND 3/ GHMC.
i) The 3rd respondent, after hearing and after considering the contents of the complaint dated 20.01.2018 of the petitioner, concluded 3 KL,J W.P.No.19329 of 2018 that the same is not genuine and the owner of Plot No.21 in Sy.No.108 is having valid documents with long standing possession over Plot No.21.
ii) The 4th respondent obtained permission for construction of building from the 3rd respondent vide permit No.3/C25/10159/2018, dated 14.06.2018 for construction of Stilt + 2 floors. The 3rd respondent, after due verification of the documents and physical verification of the property, accorded permission. Therefore, she is at liberty to construct building consisting of stilt + 2 floors in her property and there is no road encroachment by the 4th respondent as alleged by the petitioner.
iii) With the said submissions, they sought to dismiss the writ petition.
5. CONTENTIONS OF THE 6TH RESPODNENT
i) The petitioner herein has filed the present writ petition by suppressing the material facts.
ii) The petitioner herein has been pursuing parallel proceedings viz, the present writ petition and a suit vide O.S.No.228 of 2019.
iii) The pleadings of the petitioner in the present writ petition and in the suit are contradictory.
iv) The petitioner herein has also filed I.A.No.1650 of 2019 in O.S.No.228 of 2019 before the learned Principal Junior Civil Judge, Medchal, seeking ad-interim injunction and the said Interlocutory Application was dismissed vide dated 19.12.2019 holding that the petitioner approached the Court with unclean hands with suppression of material facts and therefore he is not entitled for equitable relief of 4 KL,J W.P.No.19329 of 2018 injunction. The petitioner cannot stand on the weaknesses of the 6th respondent and he has to stand on his own strength. Instead of doing so, he has filed the present writ petition and pursuing parallel proceedings with mala fide intention.
v) With the said contentions, the 6th respondent sought to dismiss the present writ petition.
FINDINGS OF THE COURT
6. The above stated facts would reveal that the petitioner claims that he is the owner of Plot No.21 and the 6th respondent claims that he is the owner of Plot Nos.1 and 3 in Sy.No.108. There is no dispute with regard to the said purchase. According to the petitioner, respondent Nos.4 to 6 are making construction on the eastern boundary of the petitioner's property where a road exists. According to the respondent No.3, there is no road encroachment either by respondent Nos.4 and 5 or respondent No.6.
7. In view of the above, it is relevant to note that in the sale deed bearing document No.4178 of 2008 dated 19.02.2018 of the petitioner, there is mention about 15 feet width road as eastern boundary. In the sale deed bearing document No.23509 of 2018, dated 26.10.2018 of the 6th respondent, north boundary is shown as 30 feet width road and Plot No.1/A. Therefore, there is no dispute that there is a road. Now the question that falls for consideration is whether the respondent Nos.4 to 6 have made any construction encroaching into the public road. 5
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8. A perusal of the record would reveal that the petitioner herein had lodged a complaint, dated 20.01.2018 with the 3rd respondent alleging that the respondent Nos.4 and 5 are making constructions by encroaching the road. Thereafter, the 3rd respondent after issuance of show cause notice, dated 23.01.2018 and on consideration of the explanation, the documents submitted by the parties and also after conducting hearing, issued proceedings dated 16.04.2018 stating that the complaint lodged by the petitioner is not genuine. The owner of Plot No.21 in Sy.No.108 is having valid document with long standing possession over the property. Challenging the said proceedings, dated 16.04.2018, the petitioner herein had filed the present writ petition on 11.06.2018.
9. It is relevant to note that the petitioner herein had filed a suit vide O.S.No.228 of 2019 against the 6th respondent seeking perpetual injunction on 18.11.2019. In the said suit in paragraph No.12, it is mentioned that the 6th respondent along with few unsocial elements on 25.09.2019 tried to make construction over the said road which is illegal and the same was obstructed by the petitioner herein and other Members of the Society. In the complaint dated 20.10.2018, the petitioner herein had stated that the 5th respondent started construction by encroaching into the road. In the writ affidavit also, it is stated by the petitioner herein that the respondent Nos.4 and 5 have started illegal construction on the eastern boundary of his property where a road exists. Though the petitioner herein has filed a reply, there is no denial of the said fact. He 6 KL,J W.P.No.19329 of 2018 has also reiterated the said facts and also contended that the 5th respondent had obtained rectification deed bearing document No.4797 of 2017 dated 19.05.2017 unilaterally. Thus, the pleadings of the petitioner in the present writ petition and in the said suit O.S.No.228 of 2019 are contradictory.
10. As stated above, the petitioner herein has filed the present writ petition on 11.06.2018 and the above said suit O.S.No.228 of 2019 on 18.11.2019. In the complaint, there is no mention about the filing of the present writ petition by the petitioner herein. Thus, there is suppression of fact by the petitioner.
11. As discussed supra, the petitioner herein has filed I.A.No.1650 of 2019 in O.S.No.228 of 2019 seeking ad-interim injunction before the Principal Junior Civil Judge, Medchal, Ranga Reddy district. On consideration of entire evidence both oral and documentary, the trial Court dismissed the said Interlocutory Application vide order dated 12.10.2019. In the said order, there is specific finding that the petitioner herein had approached the Court for grant of equitable relief of injunction with suppression of material facts, approached the Court with unclean hands and therefore, he is not entitled to seek relief of injunction against the respondents. It is not in dispute that the said order attained finality and the petitioner herein has not filed any appeal challenging the said order. As stated above, there is suppression of facts by the petitioner before the Court below and also before this Court. 7
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12. It is relevant to note that the petitioner herein filed the present writ petition to declare the proceedings, dated 16.04.2018 as illegal and for a consequential direction to respondent Nos.2 and 3 to remove the illegal constructions carried out by the respondent Nos.4 and 6 on the portion of the road. The petitioner herein had filed the above said suit O.S.No.228 of 2019 seeking perpetual injunction against the 6th respondent restraining him and his men, from raising illegal construction on the public road existing on the eastern boundary of the suit schedule property. Thus, the relief sought in the present writ petition and also in the said suit are one and the same. The petitioner herein has been pursuing parallel proceedings that the present writ petition and a suit vide O.S.No.228 of 2019, that too, with suppression of material facts. The pleadings of the petitioner are contradictory to one another. Vide order dated 19.12.2019, in I.A.No.1650 of 2019 in O.S.No.228 of 2019, the learned Principal Junior Civil Judge, Medchal, Ranga Reddy district held that the petitioner approached the Court by suppressing the facts with unclean hands and therefore, he is not entitled for equitable relief of injunction.
13. It is relevant to note that in the counter filed by the respondent Nos.2 and 3, there is specific mention about the issuance of notice, conducting of hearing and verification of documents etc. There is also specific mention that the respondent No.4 had obtained building permission from the respondent No.3, dated 14.06.2018 for construction of stilt + two upper floors. The respondent No.3, after due verification of 8 KL,J W.P.No.19329 of 2018 the documents and physical verification of the property, accorded the said permission. There is no road encroachment by the 4th respondent as alleged by the petitioner. Therefore, the 4th respondent is at liberty to construct her building in her property for stilt + two upper floors. Thus, the petitioner herein cannot pursue parallel proceedings.
14. It is contended by the learned counsel for the petitioner that the petitioner has obtained rectification deed, dated 19.05.2019 unilaterally. Referring to the same, he would submit that the 4th respondent has changed measurements unilaterally and on the strength of the same, he has obtained permission and started construction on the road itself.
15. As stated above, in the documents filed by the petitioner and the 6th respondent, there is mention about the road as one of the boundaries. Thus, there is no dispute with regard to existence of road as a boundary. In the rectification deed, dated 19.05.2017, there is specific mention that the 4th respondent has issued notice to his vendor with a request to correct the mistake and he has tried to approach his vendor but unable to trace him out. Therefore, he has executed the said rectification deed. Thus, according to this Court, there is no error in it. As rightly contended by the learned counsel for the 6th respondent, the petitioner cannot stand on the weaknesses of the 6th respondent and he has to stand on his own strength. The said principle was also held by the Hon'ble Apex Court in Jagdish Prasad Patel (D) through L.Rs. Vs. Shivnath1 and a Division Bench of High Court of the then Andhra Pradesh in 1 2019 (6) SCALE 151 9 KL,J W.P.No.19329 of 2018 Sajana Granites, Madras and Manduva Srinivasa Rao2. As stated above, the petitioner herein is trying to take advantage of said rectification deed and trying to stand on the weaknesses of the 6th respondent.
16. The petitioner herein is pursuing parallel proceedings and he has approached the Court below and this Court by suppression of facts. According to the 6th respondent, the petitioner herein is working in Police Department and blackmailing the 6th respondent and even in the cause title, the petitioner mentioned that he is a Government employee. Though a reply was filed, he has not controverted the said allegation. Therefore, prima facie, the petitioner herein filed the present writ petition by suppressing the facts.
17. As discussed above, the petitioner has approached this Court by suppressing the facts and thus, he is not entitled to any relief. The 3rd respondent, on consideration of the documents, on conducting enquiry, giving an opportunity to both the petitioner and the unofficial respondents, has passed order dated 16.04.2018, specifically mentioning that the complaint lodged by the petitioner is not genuine. Therefore, there is no error in it. The petitioner herein failed to establish any ground to interfere with the said proceedings, dated 16.04.2019. In the counter filed by the respondent Nos.2 and 3, there is specific mention that there is no encroachment by the 6th respondent. Accordingly, this writ petition is liable to be dismissed.
2 2002 (2) ALD 436 DB 10 KL,J W.P.No.19329 of 2018
18. Therefore, this writ petition is dismissed. There is no order as to costs. The interim order dated 19.02.2020 passed in I.A.No.1 of 2020 stands vacated.
19. As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J Date:09.12.2021 vvr