Telangana High Court
Vookanti Mahender Reddy vs The Kakatiya Urban Development ... on 28 March, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.26231 OF 2019
WRIT PETITION NO.18099 OF 2020
AND
I.A.NO.1 OF 2022 IN W.P.NO.18099 OF 2020
COMMON ORDER
W.P.No.18099 of 2020:
W.P.No.18099 of 2020 has been filed seeking a Writ of Mandamus to declare the action of respondents 1 and 2 in granting building permission vide proceedings No.C1/1061/2017 dt.31.01.2018 in favour of respondents 4 and 5 for construction of high raise multi- storied building during pendency of the suit in O.S.No.42 of 2008 without conversion of the land from agriculture to non-agriculture and consequential impugned proceedings No. C/1061/2017/209 dt.25.04.2020 rejecting the objections raised by the petitioner, as arbitrary, illegal and consequently to set aside the building permission dt.31.01.2018 and to take action against the structures raised by respondents 4 and 5 in accordance with law.
W.P.Nos.26231of 2019&18099 of 2020 2
2. Brief facts leading to the filing of W.P.No.18099 of 2020 are that the petitioner has entered into an agreement of sale for purchase of 5810 square yards of land situated in Survey No.539-A, 542-A & B and 543- A & B and 620 of Waddepalli Village, Hanmakonda Mandal, Warangal District from one T. Thomas and his family members. However, subsequently when the vendors of the petitioner did not come forward to execute registered sale deed, the petitioner filed O.S.No.42 of 2008 before the I Additional District Judge, Warangal in respect of the said land for specific performance and the same is pending adjudication. The District Court vide orders in I.A.No.1581 of 2008 granted ad interim injunction restraining the original owners from alienating the schedule land to third parties.
3. Meanwhile, one M/s. Avinash and Sukesh Constructions filed implead petition in I.A.No.6990 of 2016 in the said suit and the same was allowed. The petitioner filed W.P.No.25254 of 2017 seeking directions to respondents 1 and 2 therein to not grant building permission on the said land without considering his objections. According to the petitioner, the same is also pending before this Court and during the pendency of the Writ Petition, M/s. Avinash and Sukesh W.P.Nos.26231of 2019&18099 of 2020 3 company, in which the father of respondent Nos.4 and 5 is one of the partners, sold the property to respondents 4 and 5 vide registered sale deed bearing Document Nos.6991 and 6990 of 2016 dt.18.08.2016 and by suppressing the above facts, i.e., about the pendency of the suit and the Writ Petition, respondents 4 and 5 submitted an application to respondents 1 and 2 for grant of high raise building permission. It is the case of the petitioner that without enquiring about the conversion of the land and without giving any notice or opportunity to the petitioner and without considering the objections raised by the petitioner, the respondents have granted building permission permitting respondents 4 and 5 to construct a high raise building with cellar + ground floor + 8 upper floors. It is submitted that though the petitioner has filed complaints against the said permission and the fraud played by respondents 4 and 5, no action has been taken by respondents 1 and 2 and hence the petitioner is constrained to file this Writ Petition.
4. Learned counsel for the petitioner submitted that since there is an interim direction in I.A.No.1581 of 2008 against transfer of the property in favour of respondents 4 and 5, the building permission granted to respondents 4 and 5 is illegal and has to be set aside.
W.P.Nos.26231of 2019&18099 of 2020 4
5. Counter affidavits have been filed by respondents 1 and 4 & 5 and the petitioner has filed reply to the said counter affidavits.
6. Respondents 4 and 5 have also filed I.A.No.1 of 2022 to permit them to file additional material papers with regard to the proceedings in O.S.No.42 of 2008 and also written statement filed by defendant No.3, i.e., the petitioner herein, and resolution award dt.04.02.2006. Since these documents are all part of the Court proceedings and the petitioner has not raised any serious objections to the same, I.A.No.1 of 2022 is allowed.
7. Respondent No.1 in the counter affidavit has stated that the application of respondents 4 and 5 for construction of high raise building for residential apartments with stilt + 1 & 2 + ground floor + eight floors in Survey Nos.539/A, 540, 541, 543, 550 and 620 of open plot situated at Waddepally Village, Hanamkonda Mandal, Warangal District Urban over an extent of 4555.14 square yards, was examined after placing the same before High Raise Building Committee and after obtaining legal opinion from KUDA Standing Counsel on the complaint of the petitioner, the permission was accorded through DP No.03 of 2018. It is submitted that as regards the petitioner's complaint, the W.P.Nos.26231of 2019&18099 of 2020 5 respondent authority has heard both parties on 18.12.2019 on which date the petitioner as well as the respondents were represented by their advocates and submitted their statements on the title over the land claimed by their clients and the complainant has not produced any material in support of the same and after examining the fact that there is no order of any Court against KUDA, the respondent authorities have taken a decision on the application of respondents 4 and 5 for according building permission. It is stated that the competent authority has accorded building permission and has disposed of the representation of the petitioner by way of a speaking order dt.25.04.2020. It is also submitted that the petitioner had filed W.P.No.25254 of 2017 with regard to the very same subject matter and has again filed W.P.No.18099 of 2020 with the very same prayer against respondents 4 and 5 herein. It is also submitted that since no order is passed in O.S.No.42 of 2008 in favour of the petitioner, the petitioner's title is not proved in any Court of law and therefore the building permission granted in favour of respondents 4 and 5 is valid.
8. In the counter affidavit filed by respondents 4 and 5, it is stated that they have purchased the property by way of registered sale deed W.P.Nos.26231of 2019&18099 of 2020 6 vide Document No.6990 of 2016 dt.18.08.2016 on payment of full sale consideration and possession of the property was delivered to them by the original owners and thereafter they obtained LRS from the 1st respondent authority vide orders ROC.No.C1/1061/2017/83, dt.31.01.2018 and it was thereafter, that the building committee of the 1st respondent had examined their application for construction of residential complex and vide Permit No.16/2019 dt.23.07.2019, they were granted permission. It is also stated that the respondents have already completed the construction of the building without any interference from any party including third parties. It is also stated that the petitioner is only an agreement holder and the suit filed by him was for specific performance of the agreement of sale and not for declaration of title and that the petitioner has also not challenged the sale deed registered in favour of respondents 4 and 5 and therefore the petitioner is not entitled to any relief from this Court. It is further submitted that the writ petitioner had filed another writ in W.P.No.25254 of 2017 questioning the action of the respondent authorities in not considering his objections in spite of the legal notice issued by him dt.22.12.2017 and the subsequent representations before granting of construction permission to respondents 4 and 5 and in view of rejection of the W.P.Nos.26231of 2019&18099 of 2020 7 objections by the Commissioner vide orders dt.25.04.2020 and the said order is under challenge in the present Writ Petition W.P.No.18099 of 2020, W.P.No.25254 of 2017 is liable to be dismissed as infructuous.
9. In reply to the counter affidavits, the petitioner has filed a reply affidavit along with the copies of sale deeds placed at pages 59 to 195 of the paper book and submitted that in all these documents, the boundaries mentioned by the vendors are not matching. Therefore, according to him, the permission obtained by respondents 4 and 5 is by misrepresentation and fraud. It is submitted that from a perusal of each of the sale deeds, it can be seen that the said plots are surrounded by roads, but since the roads could not have been purchased by the vendors of respondents 4 and 5, if the total extent of the roads in 6 sale deeds is calculated, approximately it would be 1150 square yards and therefore the vendors of respondents 4 and 5 clearly had no title over the roads and permission granted on the basis of such sale deeds cannot be upheld. Hence, according to him, the sale deeds of the respondents are invalid documents and the authorities have not perused the link documents properly before granting permission for construction. Similarly, he has pointed out other discrepancies in the sale deeds to buttress his point that W.P.Nos.26231of 2019&18099 of 2020 8 the building permission obtained by respondents 4 and 5 is by misrepresentation.
10. Sri P. Nagendra Reddy, learned counsel for the petitioner, Sri M. Ajaya Kumar, learned counsel for respondent No.1, Ms. P. Lakshmi, learned counsel for respondent No.2, Sri S. Surender Reddy, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent No.3 and Sri G. Vidya Sagar, learned Senior Counsel representing Sri M. Srinivasa Rao, learned counsel for respondents 4 and 5 were heard in detail.
11. After hearing all the parties and considering the material on record, it is an undisputed fact that the petitioner has only entered into an agreement of sale with the owners of the land and a copy of the said agreement of sale is also not filed before this Court. It is not known as to whether the agreement of sale is a registered one or unregistered one. Admittedly, the petitioner has filed suit O.S.No.42 of 2008 for specific performance and ad interim injunction was granted till the defendants file their counter. Thereafter, on 30.08.2010 O.S.No.42 of 2008 was withdrawn and transferred to VII Additional District Judge's Court, Warangal. The I.A. was also transferred for disposal in accordance with W.P.Nos.26231of 2019&18099 of 2020 9 law. If the interim order granted in I.A.No.1581 of 2008 was in force and the respondents have violated the said directions, the petitioner can take recourse to appropriate remedy. However, this Court is of the opinion that without establishing his title over the property, the petitioner cannot object to the building permission granted in favour of respondents 4 and 5 who have purchased the property vide registered sale deeds. If there are any discrepancies in the sale deeds, the only course available to the petitioner would be to seek the cancellation of the sale deeds before the appropriate authority. This Court finds that the respondent authorities have considered the documents filed before them to satisfy themselves that respondents 4 and 5 had valid title to the property at the time of making the applications and have accordingly accorded permission. Therefore, the objections of the petitioner in this regard are without any basis and are accordingly not sustainable.
12. In view of the same, the Writ Petition filed by the petitioner in W.P.No.18099 of 2020 is dismissed.
W.P.No.26231 of 2019:
13. W.P.No.26231 of 2019 is filed by the owner and possessor of open plot to an extent of 188.33 square yards in Survey No.550 of W.P.Nos.26231of 2019&18099 of 2020 10 Waddepally Village and is challenging the building permission granted to respondents 4 and 5. According to him, there is 30 feet road existing towards North side of his plot leading to Western side for approaching main road and that respondents 4 and 5 have blocked the road by grabbing the public road. The petitioner has complained to the official respondents against the said blocking of the road but since no action has been taken, this Writ Petition was filed.
14. Respondents 4 and 5 have filed a common counter in W.P.Nos.18099 of 2020 and 26231 of 2019 stating that the objection petition filed by the petitioner in W.P.No.26231 of 2019 was rejected on 23.07.2019. It is stated that the said petitioner has no locus standi to file the case.
15. Respondent No.3 has filed counter stating that on receipt of the complaint of the petitioner herein on 23.07.2019, a show-cause notice dt.13.09.2019 was issued to respondents 4 and 5 as to why construction permission should not be cancelled and respondents 4 and 5 have submitted their explanation on 17.10.2019 denying the allegations made by the petitioner herein and thereupon the authority has verified the site and found that the petitioner's land is not coming in the approved DP W.P.Nos.26231of 2019&18099 of 2020 11 No.3/2018 and also that after hearing both the parties, the objections of the petitioner/complainant were rejected.
16. A detailed reply affidavit has also been filed by the petitioner.
17. Further, I.A.No.2 of 2019 in W.P.No.26231 of 2019 was filed by the petitioner/proposed respondent No.6 therein to implead himself as respondent No.6 and the said petition has been allowed on 20.2.2021. The petitioner in I.A.No.2 of 2019, i.e., respondent No.6 herein claims to be the owner of the property as he has purchased the subject plot to an extent of 188.33 square yards in Survey No.550 of Waddepally Village, by way of agreement of sale dt.23.12.2008 and therefore, he is the proper and necessary party to the Writ Petition. Further, there is no registered agreement of sale, though the implead petitioner claims to have made the payment partly by cash and partly by way of cheque. Therefore, he can only be a successor-in-interest and steps into the shoes of the petitioner and the arguments put forward by the 6th respondent are against the petitioner for non-registration of the plot in his favour, which cannot be decided in this Writ Petition.
18. As regards the prayer of the writ petitioner is concerned, this Court is of the opinion that it involves verification of facts and therefore, W.P.Nos.26231of 2019&18099 of 2020 12 this petition under Article 226 of the Constitution of India is not maintainable.
19. In the result, W.P.No.26231 of 2019 is dismissed. No order as to costs.
20. Pending miscellaneous petitions, if any, in these Writ Petitions shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 28.03.2022 Svv