Telangana High Court
Zonal Commr, Ghmc, R.R.Dist vs Tvr Satya Prasad, Hyderabad And 2 Others on 11 January, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT APPEAL No.1529 OF 2013
JUDGMENT:(per the Hon'ble Shri Justice Anil Kumar Jukanti) Ms. Roohi Nabeela, learned counsel representing Mr. M.A.K. Mukheed, learned Standing Counsel for the Greater Hyderabad Municipal Corporation (GHMC), appears for the appellant.
Mr. M.P. Chandhramouli, learned counsel representing Mr. Ch. Satya Sadhan, learned counsel appears for the 1st respondent.
Mr. V. Siddharth Goud, learned counsel representing Mr. V. Narasimha Goud, learned Standing Counsel for Hyderabad Urban Development Authority (HUDA), appears for the 2nd respondent.
2. This intra court appeal is filed challenging the order dated 03.04.2013 passed by the learned Single Judge in W.P.No.3317 of 2008.
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3. Facts, as narrated in the writ petition, are considered for the purpose of this writ appeal.
3.1 The petitioner in the writ petition (respondent No.1 in this writ appeal) claims to have purchased Plot No.8 admeasuring 300 sq. yards in Amar Cooperative Housing Society in Survey No.47 of Guttala Begumpet Village, Serilingampally Mandal, under a registered sale deed dated 11.11.1998 for a consideration of Rs.2,40,000/- from one Smt. Kantha Devi Agarwal. The petitioner claims to have constructed a two feet height compound wall around the plot and obtained electricity connection from the State Electricity Board and has been in peaceful possession with a watchman residing in the shed constructed.
3.2 It is averred by the petitioner that one B. Siva Rama Krishnaiah and Anthony Reddy, who offered to purchase the plot, claimed that they were informed by the Town Planning Department of Municipality that the plot is earmarked for an Electrical Sub-Station. When petitioner approached the C J & JAK, J W.A.No.1529 of 2013 3 authorities, he was informed about the same. Thereafter, petitioner filed W.P.No.26856 of 2003 in which an interim order was granted against construction of any electrical substation without acquiring the land. He was informed that the 1st respondent started constructing a compound wall on the existing two feet wall. The Assistant Engineer of GHMC on 13.02.2008 had informed that the said plot was shown as park in the plan furnished by the Town Planning Officer and he was directed to construct a wall.
3.3 It is averred by the petitioner that his plot was shown as park by overwriting with a marker in the copy of layout obtained. While the park area was shown on South and South-West sides, Plot No.7 was kept for common purpose and Plot No.8 was allotted to his predecessor in title. The area earmarked for amenities and park was illegally occupied and the plot of petitioner was marked at the instance of illegal occupier. Out of an area of 6 hectares, a gift deed was executed by the 3rd respondent in favour of Municipality by a C J & JAK, J W.A.No.1529 of 2013 4 gift settlement deed dated 16.04.1994 to an extent of 8784 sq. yards without there being any plot number. That 10% of the total area reserved for park, play area and recreational space comes to 7538 sq. yards, but 8784 sq. yards of land was allotted for park and that the petitioner's plot cannot be interfered.
4. The appellant is the 1st respondent in the writ petition. A counter affidavit is filed by the GHMC in the writ petition. It is submitted by the learned counsel appearing on behalf of GHMC that the open spaces earmarked for parks in the approved layout of the 3rd respondent society were taken over by HUDA from Serilingampally Municipality on 04.02.2004. It is submitted that the Corporation is constructing a compound wall around the area reserved for park, to safeguard the park from encroachments. That the GHMC is constructing the said compound wall only to the extent of land earmarked and reserved for park as per approved layout and the same is in accordance with law.
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5. The 2nd Respondent-HUDA filed counter affidavit. Learned Standing Counsel appearing on behalf of the 2nd respondent submitted that the learned Single Judge erred in observing that Plot No.8 does not appear to be in the description of land gifted on 16.04.1994 to Commissioner, Serilingampally Municipality, and that the plan does not describe boundaries to open spaces gifted to Municipality and that there was no objection for registration of sale deeds dated 24.06.1996 and 11.11.1998 in favour of the 1st respondent and his vendor. That the learned Single Judge grossly erred in law by not considering Rule 10(a) of Municipal Corporation of Hyderabad (Layout) Rules, 1965 and gift deed dated 16.04.1994, by which open spaces gifted are vested in appellant GHMC and as such, there would be no conferment of any right or ownership by execution of sale deeds. 5.1 It is submitted that the society conveyed and delivered the possession of open spaces to the Commissioner vide gift deed No.3493 of 1994, dated 16.04.1994, registered on the C J & JAK, J W.A.No.1529 of 2013 6 file of Joint Sub Registrar, Ranga Reddy District, to an extent of 8784 sq. yards of park area, open spaces etc., much prior to the execution of sale deeds dated 24.06.1996 and 11.11.1998. The 3rd respondent society had no right to convey open space(s) earmarked for parking by creating Plot No.8. The Municipal Commissioner, Serilingampally Municipality, communicated through letter No.G- 53/LP/808/91 dated 28.04.1994 stating that the said area was handed over to the Municipality. Pursuant to the communication, the 3rd respondent released the final layout wherein Plot Nos.7, 8, 21, 40, 41, 101 and 118 were not there and the area adjacent to Plot No.9 was earmarked as park. There was no Plot No.8, but the said layout was approved by the 3rd respondent. The 3rd respondent and the 1st respondent colluded to create a sale deed for Plot No.8 vide registered deeds of the years 1996 and 1998 which are subsequent to the vesting of the area in the Municipality on 16.04.1994. The observation of the learned Single Judge that, "Plot No.8 is not finding place in the layout is not C J & JAK, J W.A.No.1529 of 2013 7 sufficient to displace 1st respondent, when the sale deeds remain unchallenged", is unjustifiable as long as the gift deed remains in force. The learned Single Judge ought to have seen that the plot claimed is earmarked for park in the approved layout is purely a question of fact which could not have been adjudicated by exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. The order of the learned Single Judge is bad in law and untenable for the aforesaid reasons.
6. The learned Senior Counsel appearing on behalf of the 1st respondent supported the order of the learned Single Judge. It is submitted that the 1st respondent purchased the property vide registered sale deed dated 11.11.1998 after due enquiries and after perusal of the registered sale deed executed by the society (3rd respondent herein) in favour of his vendor (Smt. Kanthi Devi Agarwal) by a deed dated 24.06.1996. The 1st respondent constructed two feet height compound wall around the plot, obtained electricity C J & JAK, J W.A.No.1529 of 2013 8 connection for the shed constructed in the plot and was in peaceful possession and enjoyment with a watchman residing in the shed.
6.1 That when the authorities were raising a wall on the existing two feet wall, the petitioner made a representation and the said work was stopped. The area left out for amenities and park was illegally occupied and at the instance of illegal occupier, the 1st respondent's plot was marked as park area. The deed executed in favour of Municipality to an extent of 8784 sq. meters had no site number/plot number mentioned.
6.2 It is further submitted that the vendor of the 1st respondent had purchased Plot No.8 for a consideration of Rs.44,700/- from the society and free from all encumbrances with Plot Nos.7 and 9 on North and South and a Water Tank and 40 feet road on eastern and western boundaries. The shed had a Municipal No.1-68/187. The learned Single Judge observed that there is corroboration C J & JAK, J W.A.No.1529 of 2013 9 from the boundaries given for the four bits of open space gifted towards park area read with copies of layouts. The learned Single Judge rightly observed that the only circumstance of Plot No.8 not finding a place in two final layout plans may not be sufficient to displace the petitioner and the registered sale deeds in favour of the vendor of the 1st respondent remain unchallenged. The observation that apart from the vacillation of the Municipality about the plot being earmarked either for electric substation or for water tank or for park, any attempted encroachment by the 1st respondent over the land vested with municipality does not appear probablised, is on correct appreciation of facts. Hence, no interference is necessitated with the order of the learned Single Judge.
7. Heard learned counsels, perused the order of the learned Single Judge and the record.
8. Considered the rival submissions. It is evident from the record that the society executed a gift deed in favour of C J & JAK, J W.A.No.1529 of 2013 10 Municipality vide registered gift deed No.3493 of 1994, dated 16.04.1994, to an extent of 8784 sq. yards by the respondent society as a precondition for the issuance of final layout. The 1st respondent claims to have purchased Plot No.8 in the said layout by a registered sale deed in the year 1998.
9. Dispute with regard to the existence of Plot No.8 in the final layout is, whether the same is earmarked for a park or a plot purchased by the respondent No.1. This being a question of fact which is to be established on the basis of analysis of documentary evidence etc., the learned Single Judge has grossly erred in deciding the same by exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. We deem it appropriate that such a disputed question of fact is to be adjudicated by a competent civil Court having jurisdiction.
10. For the foregoing reasons, the order of the learned Single Judge is set aside granting liberty to parties to approach the competent Court of Law.
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11. With the above directions, the writ appeal is disposed of. There shall be no order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
________________________________ ALOK ARADHE, CJ ___________________________ ANIL KUMAR JUKANTI, J Date:11.01.2024 KH C J & JAK, J W.A.No.1529 of 2013 12 THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT APPEAL No.1529 OF 2013 Date:11.01.2024 KH