Telangana High Court
Vivekananda Nagar Colony Plot And House ... vs The State Of Telangana And 11 Others on 25 January, 2021
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
W.P.No.17880 OF 2020
ORDER:
This Writ Petition under Article 226 of the Constitution of India has been filed by Vivekananda Nagar Colony Plot and House Owners' Welfare Association, seeking to declare the inaction of the respondents in demolishing the building named as Gold Stone Maple Home Lotus consisting of 1 stilt+5upper floors in the alleged plot Nos.47 and 47/A covered by survey Nos.97, 98 and 99 of Nekmanpur Village, Gandipet Mandal, as illegal and arbitrary and consequently to direct the official respondents to demolish the said building pursuant to the final notice dated 15.11.2019 issued by respondent No.3-Manikonda Municipality.
The case of the petitioner Association, in brief, is that members of the petitioner Association purchased plot Nos.1 to 46 in survey Nos.97, 98, 99, 110 and 111 situated at Nekmanpur Village. Subsequently, the members of the petitioner Association have also constructed buildings and also residing therein. Even though as per the layout sanctioned by then Gram Panchayat Nekmanpur Village, there were only 46 plots, the unofficial respondents occupying the open space earmarked for Club House, Swimming Pool and Park, showing the same to be the land covered by plot Nos.47 and 47/A in survey No.95 part admeasuring 847 Sq. yards, got necessary approval from HMDA and respondent 2 AAR, J WP No.17880 of 2020 No.7 had constructed a multi storied building named as 'Gold Stone Maple Home Lotus'. The Tahsildar, Gandipet Mandal, carried out an inspection and found that the subject building falls in survey Nos.97, 98 and 99 and not in survey No.95/P and sent his report to that effect to the Commissioner, Manikonda Municipality, vide letter dated 18.05.2020. Thereafter, the Respondent No.2 vide letter dated 24.09.2020 addressed to the Commissioner, Manikonda Municipality, not to mutate the unauthorized property and also not to restore power and water supply to the said property. It is further averred that W.P.No.23416 of 2019 filed by the petitioner Association was also disposed of by a learned Single Judge of this Court, vide order dated 05.10.2019, with a direction to the official respondents to follow the general directions issued by the Division Bench of this Court in W.P.No.20000 of 2006. Pursuant to the same, a Final Notice dated 15.11.2019 was issued by the Manikonda Municipality directing the unofficial respondents to remove the illegal structures, however, no further action has been taken thereon till date. Even the representation dated 29.07.2020 submitted by the petitioner to the Commissioner, HMDA, was not acted upon. Hence, left with no other option, the present writ petition has been filed.
This Court, on 19.10.2020, while ordering notice before admission, directed the respondent No.7-the Sub-Registrar, Gandipet, not to register any documents in relation to the 3 AAR, J WP No.17880 of 2020 flats/part of the building or the entire building in Gold Stone Maple Home Lotus.
Seeking to vacate the above interim direction, dated 19.10.2020, respondent No.12 filed a counter affidavit denying the material averments of the affidavit filed in support of the writ petition inter alia stating that respondent Nos.9 to 11 have purchased the plot bearing Nos.47 and 47/A in survey No.95/part (admeasuring 847 sq.yards) situated at Nekmanpur Village from one Smt.Penmetsa Pramila vide registered sale deed bearing No.216/2018 dated 08.01.2018. Further, Respondent Nos.9 to 11 entered into a Development Agreement-cum-General Power of Attorney with respondent No.12 for development of the subject land. Accordingly, they have approached the HMDA authorities for grant of construction permission. After causing due inspection, the HMDA authorities have issued approval for residential building/apartment for construction of 1 stilt+5 upper floors. Thereafter, the construction was commenced and has also been completed. At that juncture, 10 persons under the guise of the petitioner Association started blackmailing the respondent No.12 demanding an amount of Rs10,00,000/- (Rupees ten lakhs). The respondent No.12 unable to bear the harassment, filed two civil suits being O.S. Nos.2213 of 2018 and 2375 of 2018 on the file of the II Additional Senior Civil Judge at L.B. Nagar wherein ad interim injunctions were granted and subsequently the same were made absolute. 4
AAR, J WP No.17880 of 2020 However, suppressing the same, the petitioner Association also filed a suit for declaration being O.S.No.551 of 2019 on the file of the II Additional District Judge, Ranga Reddy District, but till date no interim orders are passed in the suit filed by the petitioner Association. The writ petitioner suppressing the pendency of all the above mentioned civil cases and also filing of the other writ petitions before this Hon'ble High Court, has filed the present writ petition and obtained the interim order. Hence, it is prayed to dismiss the writ petition.
Rebutting the averments made in the counter affidavit, a reply has been filed by the petitioner Association stating that there is no suppression of any facts relating to the earlier proceedings by way of writ petitions or civil suits and on the other hand the present writ petition is filed questioning the inaction of the Municipality not taking up demolition pursuant to the final notice issued by it on 15.11.2019, issued on the basis of the inspection report conducted by the Tahsildar. Thus, the present writ petition is filed on the new and fresh cause of action. It is further stated that the petitioner Association is a Registered Body under the Societies Act and therefore the allegation that the petitioner Association is a bogus association is incorrect.
Heard the learned counsel for the petitioner, learned Government Pleader for Municipal Administration and Urban Development, learned Standing Counsel for GHMC, learned 5 AAR, J WP No.17880 of 2020 Standing Counsel for HMDA, learned Government Pleader for Revenue, learned Government Pleader for Stamps & Registration for the official respondents and Sri Y.Balaji, learned counsel for the unofficial respondents. Perused the entire material on record.
Learned counsel for the petitioner has contended that the unofficial respondents, under the guise of the plot in survey No.95part, have unauthorizedly occupied and constructed building in survey Nos.97, 98 and 99. After causing due inspection, the Tahsildar, Gandipet, also submitted a report to the effect that the building was unauthorizedly constructed by the unofficial respondents herein, and even the final notice dated 15.11.2019 issued by the Commissioner, Manikonda Municipality, was not acted upon till date. The learned Counsel for the petitioner has stated that the present writ petition is filed questioning the inaction of the respondent/Municipality in taking action pursuant to the notices issued by them, the cause of action in the present writ petition is totally different from the other writ petitions, which were filed earlier, and therefore, the question of suppression of any material fact does not arise. Learned Counsel has taken this Court through the notice, dated 15.11.2019, issued by the Commissioner, Manikonda Municipality, the letter written by the Director of Town and Country Planning to the Commissioner, Manikonda Municipality, and also the report of the M.R.O., to buttress 6 AAR, J WP No.17880 of 2020 his contention that the unofficial respondents are constructing the flats in an area which is earmarked for Swimming Pool and other amenities. Learned Counsel has relied on the report of the M.R.O. to substantiate his pleadings that the permission obtained by the unofficial respondents is in Sy.No.95 whereas in the report of the Tahsildar it is clear that the subject land falls in Sy.Nos.97, 98 and 99, and prayed this Court to allow the writ petition and direct the municipal authorities to take necessary action strictly in accordance with law pursuant to the notice issued by them.
Per contra, the learned counsel for the unofficial respondents has contended that by suppressing the material facts i.e. pendency of the civil suits between the parties before the competent Civil Courts, the filing of writ petitions earlier before this Court, the petitioner Association has approached this Court with a unclean hands, with a mala fide intention to blackmail and extract money from the unofficial respondents. Learned counsel has further stated that the respondent No.12 has completed construction after obtaining necessary approvals from the competent authorities.
Further, the learned counsel has stated that the unofficial respondents, after duly verifying the title of their vendors, have entered into the development agreement and have constructed '10' flats in the subject land and these flats have already been sold to various persons. Some of the 7 AAR, J WP No.17880 of 2020 purchasers have taken loans from the financial institutions, while others invested their hard earned money. Due to the interim order granted by this Court, they are facing untold misery as the flats are not being registered by the Sub- Registrar. Learned counsel has vehemently argued that the writ petition is devoid of merits, that the petitioner Association does not have any right, title or interest and the Association itself has been created by some local persons only with the sole objective of blackmailing the builders who are making constructions in that area. Learned Counsel has stated that the writ petition is liable to be dismissed on the sole ground of fraud and suppression of material fact, the Association has already approached the Civil Court for declaration of title in respect of the subject lands and no interim orders have been granted in favour of the Association. Unless and until the Civil Court decrees the suit filed by the Association, the petitioner has no locus to file the writ petition or make any representation before the authorities and therefore, the question of demolishing the structures made by the unofficial respondents does not arise. Moreover, the petitioner Association has not come to the Court with clean hands and has not disclosed about the earlier two suits filed against the members of the Association by these unofficial respondents, wherein initially interim injunction orders were granted and subsequently after hearing the arguments of both sides, the interim injunction orders were also made 8 AAR, J WP No.17880 of 2020 absolute. The unofficial respondents have been constructing the building in question after obtaining necessary permission from the HMDA, which is the competent authority for granting the building permission, and the Manikonda Municipality does not have the jurisdiction to issue any notice when the permission is granted by the HMDA. Learned Counsel has also drawn the attention of this Court to the earlier writ petition filed by the very same Association, which has been dismissed by this Court on the ground of suppression of material facts, and three other writ petitions are filed by either the members of the Association or the Association itself being W.P.Nos.6777 of 2019, 17361 of 2019 and 36679 of 2018. Learned Counsel has also drawn the attention of this Court to the orders, dated 05.09.2019, passed by the HMDA wherein the complaint made by the Association has been rejected. In view of the above suppression of the material facts, the learned Counsel has stated that the writ petition filed by the petitioner is not only liable to be dismissed but the same should be dismissed with exemplary costs.
A perusal of the documents filed by the petitioner as well as the respondents show that there is a serious dispute not only with regard to the title to the property but also with regard to identity of the property. The petitioner Association on the one hand is claiming that the property falls within Sy.Nos.97, 98 and 99 and on the other hand the unofficial 9 AAR, J WP No.17880 of 2020 respondents are claiming that the property is part and parcel of Sy.No.95. Admittedly, the petitioner has approached the Civil Court for declaration of title, but instead of awaiting the result of the said suit, they are filing representations before the authorities seeking demolition of the structures constructed by the unofficial respondents. The petitioner has necessarily to wait for the result of the suit. But, as seen from the record, the petitioner Association or the members of the Association are filing representations/complaints before various authorities raising all kinds of disputes with regard to the construction being made by the unofficial respondents and filing writ petitions in this High Court. The pleadings in the present writ petition do not disclose about the earlier writ petitions and suits filed by the petitioner, or the suits filed by the unofficial respondents. Any person approaching a Court has necessarily to disclose all the facts including the litigations pending before various for and also about the pending writ petitions before this Court. But, the petitioner has suppressed these material facts. In the writ affidavit, the deponent has averred that the petitioner has not approached any other Civil Court or this Court for similar relief. The said averment is nothing but a blatant lie and amounts to deliberate suppression of material fact. The petitioner having approached the Civil Court for declaration of its title ought to have disclosed the same in the writ petition. Even before the matter is adjudicated in the Civil Court, the question of the 10 AAR, J WP No.17880 of 2020 petitioner Association approaching this Court under Article 226 of the Constitution of India seeking a Mandamus against the Municipality to demolish the structure constructed by the official respondents cannot be countenanced. Moreover this Court has already dismissed W.P.No.19314 of 2019 filed by the very same Association on the ground of suppression of the material fact. Even after dismissal of the W.P. No. 19314 of 2019 on the ground of suppression of material facts,, it is not understandable as to how the petitioner can have the audacity to file another writ petition, by not only suppressing the earlier orders but also the fact that civil cases are pending between the parties and that the lower Court has already granted interim order in the cases filed by the unofficial respondents.
This Court, vide order, dated 30.01.2020, while dismissing W.P.No.19314 of 2019 filed by the very same Association on the ground of suppression of material facts, has observed as under:
"Averments made in the counter affidavit goes to show that 7th respondent herein filed suits in the year 2018 and in initially ad interim injunctions were granted on 09.11.2018 and 27.11.2018 respectively, and subsequently, they were made absolute on 22.14.2019. Without mentioning about these material facts, the present writ petition has been filed on 03.09.2019. This amounts to suppression of material facts, and on this ground alone, the writ petition is liable to be dismissed. Further, Mr.T.Sudhakar, who, in the present writ petition, claims to be the Secretary of the petitioner - Association, filed complaint before the HMDA, and the said complaint was rejected by the said authority on 05.09.2019, holding that there is no evidence in support of the claim of the 11 AAR, J WP No.17880 of 2020 complainant that the site under reference is allotted for Swimming Pool and Park.
Further, it is stated that the petitioner - Association in this writ petition, represented by its Secretary, filed suit in O.S.No.551 of 2019 on the file of Principal District Judge, Rangareddy District at L.B.Nagar for declaration of title and recovery of possession. The same is not disputed by counsel for writ petition, but the said aspect is not mentioned in the affidavit filed in support of the writ petition, which is suppression of fact.
In view of the above, writ petition is dismissed on the ground of suppression of material facts."
The record reveals that the HMDA has granted building permission. Therefore, any constructions made pursuant to the said permission cannot be termed as unauthorized or illegal. The Hon'ble Supreme Court in number of cases has deprecated the practice of filing writ petitions by suppressing material facts and has held that the same amounts to playing fraud on the Court.
Suppression of material facts will not only amount to playing fraud on the Court but is an abuse of the process of the Court and any person approaching this Court with unclean hands has to be non-suited on the sole ground of concealment or suppression of material fact. In the present writ petition also the petitioner Association knowing fully well about the pendency of other writ petitions filed by its members and by itself, the civil cases pending between the parties before the competent Civil Courts, has deliberately not disclosed the same in the writ affidavit. The writ petition is 12 AAR, J WP No.17880 of 2020 liable to be dismissed on this sole ground and the petitioner non-suited.
In Dalip Singh v. State of U.P.1, the Hon'ble Supreme Court while taking judicial notice of falling moral values of life, observed as under:
" For many centuries, Indian society cherished two basic values of life i.e., 'satya' (truth) and 'ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice-delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
In Oswal Fats and Oils Limited. v. Additional Commissioner (Administration), Bareilly Division2, the Hon'ble Apex Court while dealing with the conduct of a party in suppressing material facts, observed as under:
"It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn 1 (2010) 2 SCC 114 2 (2010) 4 SCC 728 13 AAR, J WP No.17880 of 2020 obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the Court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to deny relief to such person."
In Jyothir R. v. Sunisha N.S. and others3, the Hon'ble Supreme Court while dismissing the Civil Appeal held as under:
" The appellant did not reveal in the special leave petition that the counseling had been completed on 8-8- 2019, and all the students, including the appellant, Respondent 1 and Respondent 5 had secured admission in various medical colleges, and were undergoing the course. This fact was not disclosed to the Court even at the time of admission hearing on 19-8-2019 when this Court issued notice and granted an interim order in favour of the appellant. These facts came on record in the counter- affidavit filed by Respondent 1 on 27-8-2019. The appellant ought to have approached this Court with candour, and disclosed the correct facts."
The jurisdiction of this Court under Article 226 of the Constitution of India is discretionary. Unless this Court is convinced that a person has approached it with clean hands, it is under no obligation to extend its aid to such a person. While exercising its extraordinary jurisdiction under Article 226, this Court will bear in mind the conduct of the parties. 3 (2019) 9 SCC 449 14 AAR, J WP No.17880 of 2020 Another pertinent point is that the order, dated 05.09.2019, passed by the HMDA clearly reveals that the allegations made by the petitioner were held to be false and frivolous and there was nothing on record to show that the construction been made in the subject land are earmarked for swimming pool, park, etc. The interim orders passed by the II Additional Senior Civil Judge, Ranga Reddy District, at L.B.Nagar in I.A.No.795 of 2018 in O.S.No.2213 of 2018 and in I.A.No.915 of 2018 in O.S.No.2375 of 2018, it is held by the Trial Court, while making the interim injunction orders absolute, that the members of the Association did not file any proof to show that the land was earmarked for swimming pool as they have not filed any layout.
Even otherwise, unless and until the petitioner succeeds in the suit filed by it, no relief can be granted by this Court under Article 226 of the Constitution of India.
In view of the above facts and circumstances, this Court does not find any merit in the present writ petition and the same is dismissed on the sole ground of suppression of material fact. The writ petition is accordingly dismissed with costs of Rs.25,000/- (Rupees twenty five thousand only) payable to the Telangana Legal Services Authority, within a period of two weeks from the date of receipt of a copy of this order.
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AAR, J WP No.17880 of 2020 Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 25-01-2021.
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