Andhra Pradesh High Court - Amravati
Sana Radha, vs The State Of Andhra Pradesh, on 26 February, 2021
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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.21469 of 2020
ORDER:
This Writ Petition is filed by the petitioner questioning the rejection of a building permission dated 20.06.2020 without verifying the petitioner's site and without considering the application that has been submitted etc., and seeking a consequential direction to verify the documents or to restore the building permit.
This court has heard Smt. Preethi Reddy, learned counsel for the petitioner and Sri S.Lakshmi Narayana Reddy, appearing for the 2 nd and 3 rd respondents along with the learned Government Pleader for Municipal Administration who appears for the 1 respondent.
st PETITIONER'S SUBMISSIONS:-
The petitioner submits that despite having valid title the respondents have wrongfully rejected the building application after initially sanctioning the same. Learned counsel argues that the petitioner's husband is one S.RajagopalaNarsingarao, S/o Surya Narayana Murthy. He acquired the property through a deed of conveyance executed in his favour on 15.09.1952, by which according to the petitioner two bits of land in T.S.No.1671 (13 cents = 629.62 Sq.yards) and in T.S.No.1669 (12 cents = 580 Sq.yards) were acquired. Later, in 2004 the said Sana RajagopalaNarasinga Rao executed a registered gift deed in favour of the petitioner 2 bequeathing 427.77 sq.yards of land in Sy.No.1671 to the petitioner. Claiming title through these two documents the petitioner had applied for a building plan, which was initially granted on 20.04.2020. Petitioner started the construction as per the plan but thereafter a shortfall notice was issued on 07.07.2020 for stopping the further construction. It is argued that despite clear and categorically representation dated 10.07.2020 the plan was not restored and therefore, the Writ is filed.
Learned counsel for the petitioner argued that there are two bits of lands in T.S.Nos.1671 and 1669. It is her contention that the land in T.S.No.1671 has always been in peaceful possession and enjoyment of the petitioner's family and that the AC sheet shed in this site has been assessed to taxes of municipality, electricity connection was also issued to the petitioner. It is purely a private site. Learned counsel for the petitioner submits that the tax receipts etc., which are filed clearly show that the petitioner has been in settled possession and enjoyment of the property. She contends that without any basis and holding that this present site is a park area / common area in the layout, the plan was rejected. This contention of the GVMC-respondent is very vehemently opposed by the learned counsel for the petitioner, who points out that this park and the present site are not the same and under the misconception the GVMC has wrongfully rejected the plan.
3RESPONDENTS'SUBMISSIONS:-
In reply to this, learned standing counsel for respondent Nos.2 and 3-Municipal Corporation, relying upon his counter affidavit, argues that the site covered by the plan is a park in the SBI Staff Housing Cooperative Society lay out in T.P. No.23/64. Therefore, the first and foremost submission is that since it is a common area meant for public purpose it cannot be used for any other purpose let alone construction of a house.Apart from that he argues that the petitioner does not have a valid title to the property. It is submitted that 1952 document, on which the petitioner relies, is an unregistered document and it could not have conveyed any title whatsoever. Therefore, he submits that any subsequent document executed on this document cannot also convey valid title. He states that the petitioner has no title at all to the property. Apart from this, it is also contended that the petitioner's husband has filed W.P.No.20458 of 2002 before the combined High Court and sought protection from demolition of his unauthorized sheds in T.S.No.1671. It is argued that in the said Writ Petition the learned single Judge also disposed off the Writ Petition holding that in T.S.No.1671 some sheds were constructed, and that the Corporation should obtain an undertaking from the petitioner that he would not alter the nature of the land or make constructions without prior permission. It was also noticed that the open space can only be used for community purpose since the 4 learned single Judge noticed that the shed was being used for running an institution of fine arts. The learned single Judge held that further permission can be declined if constructions of permanent nature or commercial constructions are sought to be made. As the activity being run in the sheds is for communal purpose the learned single Judge held that no further constructions can be made. These are highlighted by the learned standing counsel. Last but not the least relying upon the case law that is submitted he argues that complicated questions of fact are present in this case and this Court while exercising jurisdiction under Article 226 should not enter into these areas of dispute which require an elaborate trial. Therefore, he submits that the Writ Petition is to be dismissed.
REJOINDER:-
In reply to this, learned counsel for the petitioner relying upon the rejoinder affidavit filed argues that two properties covered by the Writ Petition No.20458 of 2002 and the present Writ Petition are not common and that the rejoinder affidavit filed clearly shows that these are two distinct properties. Apart from that by relying upon the counter affidavit filed, learned counsel for the petitioner argues that in T.S.No.1671 an extent of 629 Sq.yards is involved out of which 427 Sq.yards is the subject matter of the Gift Deed. She submits that in the balance extent of land approximately 100 Sq.yards is lost in road widening and 100 Sq.yards is with the petitioner's husband, who has raised a 5 shed etc. Therefore, she argues that this site is distinct from the litigation covered by the judgment of the learned single Judge in W.P.No.20458 of 2002.
DETERMINATION:-
This Court after hearing both the learned counsel, perusing the documents etc., considering the issues raised / argued notices that there are quite a few facts which are disputed and not clearly established either by the petitioner or the respondent in this Writ.
The following are the said questions of fact -
1. The petitioner is tracing her title through (a) A deed of conveyance executed in the year 1952 in favour of the petitioner's husband. This document dated 15.09.1952 is executed by the General Power of Attorney holder of the Inamdar in Visakhapatnam. As per this document two bits of land are supposedly conveyed i.e., (i) Ac.0.13 cents situated in Sy.No.1671 equivalent to 629.62 Sq.yards (ii) Ac.0-12 cents situated in Sy.No.1669 equivalent to 580 Sq.yards. This document is not a registered document. It is styled as a deed of conveyance. The law on the subject is fairly well settled and does not require repetition as conveyance of any property worth more than Rs.100/- can only be through only a registered instrument.(Section 17 (1)(b) of the Registration 6 Act 1908) The GPA holder of the Inamdar has executed this deed in 1952. Thus, whether valid title is conveyed under this deed and whether the petitioner or her predecessor in title were in possession since then are moot questions.
2. The submission of the learned counsel for the petitioner is that both these properties are distinct and separate. But this Court notices that there is common boundary in between the 'A' schedule 629 Sq.yards and 'B' schedule of 580 Sq.yards (Covered in 13 cents and 12 cents respectively).
The western boundary of the 'A' schedule is the eastern boundary of the 'B' schedule. Therefore, it is clear that these two properties are next to each other. The separation as claimed is to clearly visible.
3. This Court also finds that as per the Gift Deed executed on 08.12.2004, the age of the petitioner's husband is shown as 50 years. Therefore, as per this Gift Deed he must have been born in 1954 only. However, the deed of conveyance deed dated 15.09.1952 is already executed in favour of the petitioner's husband S. RajagopalaNarasinga Rao, as a minor represented by his father. This is an issue that needs explanation and evidence.
4. Similarly, in the Gift Deed, on which the petitioner relies, this Court does not find any 7 reference to the Deed of Conveyance dated 15.09.1952, which is now relied upon by the petitioner. The Gift Deed of 08.12.2004 states that the property is classified as a Poorvarjitham (ancestral) and Pitrarjitham (inheritance). The reference to the 1952 document is totally missing from this Gift Settlement Deed of 2004. The flow of title is thus not clear and has to be established.
5. This court also finds that the petitioner's claim to title for land in Sy.No.1671 is only for 629 Sq.yards. In Writ Petition No.20458 of 2002 the claim of the petitioner therein is for the land measuring 600 Sq.yards in T.S.No.1671 along with some sheds, which were constructed thereon. The writ petitioner in this writ claims that they are in possession of the site by virtue of a Gift Deed executed on 21.10.1987 (Document No.6003 of 1987) by the State Bank of India Staff Cooperative Housing Society Ltd. In this property temporary structures were put up for organizing training for the purpose of Khadi and Village products. Therefore, as per the averments in the Writ, approximately 1255 Sq.yards of land have been gifted to the petitioner's society (petitioner in Writ Petition No.20458 of 2002). The Learned Single Judge after hearing the parties came to a 8 conclusion that if there is any permanent structure other than compound wall the same should not be demolished and may be considered for levying compound fee. A further undertaking should be obtained from the petitioner that this will not alter the nature of the land in to commercial activity and would not make any constructions without obtaining the proper approval of the Corporation. Learned single Judge also noticed that according to the layout the open space only for communal purpose. In the conclusion the Learned Single Judge held that the present respondent could decline permission for any additional or further constructions of a permanent or commercial construction, since the present activity is being undertaken by the Writ petitioner for the benefit of the community at large.
This Court is unable to appreciate the contention that there is absolutely no commonality between the property covered by the present building plan and the property covered by the dispute in W.P.No.20458 of 2002. As can be seen, the petitioner in W.P.No.20458 of 2002 was claiming the right to property in Sy.No.1671 only. It is also mentioned that an additional affidavit has been 9 filed by the society. As per the same three open sites were left in the layout developed by the State Bank of India Staff Cooperative House SocietyLtd. In the one site the Municipal Corporation constructed a park, community centre and municipal commercial complex. In the second open site, which was taken over by the Municipal Corporation, the office of the local Sanitary Inspector was constructed. The third open site is retained by the society and an open well was dug for community use and later a pump set etc., was constructed. The house building society constructed an office room there. A portion of this third site was encroached. Therefore, to protect the same from further encroachment etc., it is mentioned that the housing society has gifted the land to Kala Kendra Institute of Fine Arts. In the rejoinder that is filed it is mentioned that 1255 sq.yards of land was donated to Kala Kendra by way of Gift Deed dated 09.11.1987. The registration of the said document is still said to be pending. Therefore, it is not very clear that the requisite formalities of valid gift viz., a Deed of registration and handing over possession are both completed. Apart from this in the order passed in W.P.No.20458 of 2002 it is mentioned that the Gift 10 Deed bearing No.6003 was executed on 21.10.1987 but in the rejoinder affidavit filed the Deed of the Gift mentioned is dated 09.11.1987. It is also stated that out of 1255 Sq.yards of land only 450 Sq.yards of site left out,and the petitioner was using for non-commercial purpose.
6. The contention of the learned counsel for the respondents that this is a vacant site as per the lay out plan is also not strictly borne out by the record filed by the respondent. The plan that they have filed along with the counter does not clearly establish the identity of the land. However, the fact remains that the other issues raised by the respondents viz., whether the valid title is conveyed or not as the 1952 document is unregistered etc., whether the property in W.P.No.20458 of 2002 and the present property are not one and the same etc., need to be established.
This Court cannot also state simply that since there are disputed questions of fact it will not enter into the areas of controversy. This Court has a duty to spell out what are the disputed questions of fact, which need to be established and adjudicated. Therefore, the issues that are spelt out are for the limited purpose of pointing out the matters which in the opinion of the Court need to be proved in a Civil Court 11 through proper pleading and evidence. In the opinion of this Court, these are all the matters of pleading and evidence, which are best addressed and decided in a regular civil suit. In the opinion of this Court, a civil suit is the proper and efficacious remedy for this case and not a Writ. Disputed question cannot be decided in the Writ. Only instances are given. This order will not limit the rights of parties. Whatever issues are touched upon by this Court in the preceding paragraphs are points which in the opinion of this Court need to be proved by establishing the same in the course of a regular trial. It is reiterated that this court has not finally pronounced on the merits of the issues.
Therefore, this Court holds that the petitioner is not entitled to any relief in this Writ Petition. It is left open to the petitioner to establish her rights in a Competent Court of Law. In case such proceeding is instituted, the respondent Municipal Corporation can also raise all the appropriate defenses.
With the above observations the Writ Petition is dismissed. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, shall stand dismissed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:26.02.2021.
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