Telangana High Court
Revoori Jenna Reddy vs State Of Telangana on 1 March, 2021
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.4857 of 2021
ORDER:
With the consent of the learned counsel for the parties, the Writ Petition is disposed of at the stage of admission itself.
This writ petition is filed challenging the impugned notice, dated 13.02.2021, issued by the Deputy Commissioner, Kazipet Circle-II, Greater Warangal Municipal Corporation, Warangal, respondent No. 3 herein, whereby the respondent No. 3, by invoking the powers under Section 254 of the Telangana Municipalities Act, 2019 (for short, 'the Act'), directed the petitioners to produce all the documents in respect of Plot No. 25 in Sy. No. 171, situated at Shayampet Jagir Village, for verification and to take further action on the objection petition filed on 13.02.2021 filed by Smt. Donti Padma, the respondent No. 4 herein. The petitioner was also directed to stop the construction work until further orders.
The learned counsel for the petitioners has submitted that the impugned notice, as issued, is without any jurisdiction. The respondent No. 3 has acted at the behest of the respondent No. 4 and has issued the impugned notice in mechanical manner without application of mind. If the respondent No. 4 has any grievance against the petitioners, the remedy for her is to approach the civil court, but cannot file a false, frivolous and vexatious complaint before the municipal authorities, more particularly, when the building permission was granted by the respondent No. 2 on 31.01.2020. If the respondent No. 4 had any claim in respect of the site of the petitioners, she ought to have filed her objections 2 prior to the grant of permission, but not after lapse of more than 13 months. As the respondent No. 3 had issued the impugned notice without application of mind, the same is liable to be set aside.
On the other hand, the learned Standing Counsel appearing for the official respondents has contended that the present writ petition is filed only against the show-cause notice asking the petitioners to submit their documents. That under the provisions of the Act, more particularly, under Section 254 of the Act, the official respondents can require a person, who had obtained the building permission, to submit the documents on which he has relied for getting the building permission, to verify whether the applicant is having valid title or not? Or whether he has obtained the same by playing fraud or by misrepresentation? In the light of the complaint filed by the unofficial respondent, the respondent No. 3 had only directed the petitioners to submit the relevant documents to verify the veracity of the allegations made therein. The further action, if any, will be taken only after verifying the documents of the petitioners if it is found that there is any misrepresentation while obtaining the building permission. The learned Standing Counsel has also submitted that the Commissioner will only verify as to whether the petitioners are having prima facie title or not, but will not go into the disputed questions of title or the survey number of the property in question.
Mr. Bommineni Vivekananda, the learned counsel appearing on behalf of respondent No. 4, has contended that the documents submitted by the petitioners are not genuine documents, that the vendor of the petitioners does not have any valid title in respect of 3 the land in question. Though the petitioners have obtained the building permission as long back as on 31.01.2020, they have commenced the construction work only recently and therefore, the respondent No. 4 on coming to know about the same has immediately filed the complaint on 13.02.2021 with the official respondents. That based on the complaint filed by the unofficial respondent, the impugned notice has been issued and the petitioner can submit his explanation, if any. It is contended that under Section 254 of the Act, the Commissioner is the competent authority to verify whether the documents relied on by the petitioners are genuine or not and whether the petitioners are having valid title or not, and whether the permission, which has been granted is not obtained by misrepresentation or not?
In reply, the learned counsel for the petitioners has argued that even for the sake of argument, if the contentions advanced by the respondent No. 4 are accepted to be true, still the Commissioner cannot go into the veracity of the title or into the aspect as to who is having better title, more so, when the building permission has already been issued way back on 31.01.2020 and the building has already been raised upto two floors. At this juncture, basing on the vague, false and frivolous complaint made by the respondent No. 4, the Commissioner cannot conduct a roving enquiry with regard to the title, physical possession and direct the petitioners to stop the construction work. The learned counsel has further contended that the Commissioner, at the most, can verify if the building that is being constructed is in accordance with the sanctioned plan or not, and can take action, if any deviations are found but not otherwise. Once the building 4 permission is granted and the construction has commenced, the Commissioner, at this stage, cannot go into any other aspect of the matter.
Heard the learned counsel for the petitioners, Ms. P. Laxmi, the learned Standing counsel for GHMC appearing for respondent Nos. 2 and 3, and Mr. Bommineni Vivekananda, learned counsel appearing for respondent No.4.
Admittedly, in the case on hand, the building permission was granted on 31.01.2020. The impugned notice, under Section 254 of the Act was issued on 13.02.2021, based on the complaint made by the respondent No 4, on the even date. Even though the notice merely directs the petitioners to submit their title documents before the respondent No. 3, for what purpose the documents are sought for by the respondent No. 3 is not specified in the impugned notice. Even if a direction is given to the petitioners to submit their explanation along with necessary documents, as sought for by the respondent No. 3, I am afraid the same will not serve any purpose. For, the question as to whether the respondent No. 3 can go into the title dispute as to whom among the petitioners or unofficial respondent is having better title or whether he can cancel the permission at this stage, based on the complaint filed by the respondent No. 4 are all contentions which can only be decided by a competent civil court after appreciating the evidence let in by the parties. Admittedly, the petitioners are in physical possession of the subject land and in pursuance of the building permission granted on 31.01.2020, they have already constructed two floors. Whether the petitioners have obtained the permission by playing fraud on the authorities and 5 whether the vendor of the petitioners does not have any valid title to the subject land, as alleged by the respondent No. 4, are all disputed questions of fact, which cannot be gone into by the municipal authorities and the same has to be established before a competent civil court. The Hon'ble Supreme Court as well as this Court, in number of cases, have categorically held that where disputed questions of title are raised, the Commissioner cannot traverse into the said area and decide the title dispute. Before granting any building permission, the subject satisfaction of the municipal authority is as to whether the applicant is having any prima facie title or not in respect of the property in question and whether the plans are in accordance with the building bye-laws, rules etc. When two parties are claiming rival title through registered sale deeds, the question as to who is having better title over the other, cannot be gone into by the municipal authorities. While dealing with the issue of powers of the municipal authorities, this Court in Guntuka Raja Ram v. State of Telangana1, held as under:
As the Commissioner, being not well versed with law and legal intricacies, has taken care of obtaining legal opinion from the learned standing counsel, GHMC and basing on the said legal opinion, the commissioner had come to the conclusion that there exists a serious dispute with respect to the title and enjoyment of the petitioner with respect to the land, over which the petitioner claims building permission. In such circumstances, it cannot be said that the Commissioner had erred in delegating the parties to the Civil Court, as it is not possible for the Commissioner to come to a conclusion, who has superior title, that is, either the petitioner or the implead petitioner.
Recently, dealing with the similar issue, this Court in Masnam Hussain v. State of Telangana2 has held as under:-
...Unfortunately, the Municipal Authorities have not been entrusted with the functions and duties to determine whether a 1 2017 (4) ALD 415 2 2020 (5) ALD 539 6 particular individual's occupation of land is legal or illegal. The limited functions that are entrusted to the Municipal authorities under the Act is with respect to regulated development of zones and wards, and to issue construction permissions in the respective areas by following due process prescribed under the Act.
So far as the encroachment into petitioner's land is concerned, if the allegation of the petitioner that the 4th respondent had encroached into and occupied the petitioner's land is taken to be true, even assuming for the sake of argument that the authorities are not taking action against the alleged illegal construction being made by the 4th respondent, the remedy of the petitioner with respect to illegal encroachment is to approach competent Civil Court seeking mandatory injunction and recovery of possession.
In view of the above stated legal position, the impugned order is not sustainable under law and the same is liable to be set aside.
Accordingly, the writ petition is allowed setting aside the impugned notice. However, this order does not preclude the Municipality from taking any action against the constructions, if any, being raised by the petitioners if the same is in deviation of the sanctioned plan. This order also does not preclude the unofficial respondent from approaching the competent civil court for filing a comprehensive civil suit seeking appropriate relief as she deems fit. Any observations made by this Court in this writ petition are only for the purpose of disposing of the writ petition and it shall not be construed as making any observation on the title or otherwise of the parties. In the event any suit is filed, the trial Court shall decide the same on its own merits uninfluenced by any of the observations made by this Court in this order.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 01.03.2021 Tsr