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2020 DIGILAW 678 (AP)

Samaikhya Build Tech Private Ltd. Bangalore v. Kadiri Municipality

2020-10-16

D.V.S.S.SOMAYAJULU

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JUDGMENT D.V.S.S. Somayajulu, J. - This Writ Petition is filed by the petitioner company seeking the following relief: "...to issue a writ of mandamus or any other appropriate writ or direction declaring the proceedings of the 1st respondent issued in Roc.No.1013/2019-G1, dated .12.2019 signed on 02.12.2019 as illegal, arbitrary and one without jurisdiction and pass such further order or orders as this Hon'ble Court may deem feels fit and proper in the circumstances of the case." 2. The counter affidavit of the 1st respondent, who is the main contesting respondent, has been filed. The matter was taken-up for hearing with the consent of the learned counsels. 3. This Court has heard Sri O. Manohar Reddy, learned counsel for the petitioner, Sri N. Ranga Reddy, learned standing counsel for the 1st respondent and Sri M. Jaya Rami Reddy, appearing for the 2nd respondent. 4. Learned counsel for the petitioner argues that the petitioner has secured a Development-cum-Agreement of Sale-cum-General Power of Attorney etc., for a bit of land measuring Ac.0-20 cents in Sy.No.660-3 with hut bearing D.No.1-617-7 situated at Church Road, Kadiri. They are developing the said property after securing the building permission and permit, details of which are given in the Writ Petition. Learned counsel for the petitioner points out that the 2nd respondent had given a complaint to the 1st respondent stating that the petitioner has obtained the building permission by suppressing of facts etc. After obtaining legal opinion a show cause notice issued to the petitioner by the 1st respondent, to which a detailed explanation was submitted. However, without considering the explanation in its totality and in violation of the settled law, the learned counsel submits that the building permission was cancelled by the 1st respondent through the impugned order. Questioning the same, he states that the Writ is filed. 5. His essential submission is that under the A.P. Municipalities Act, 1965 (in short "the Act"), the 1st respondent municipality does not have the right to enter into the disputed areas of question of fact and decide whether the petitioner has valid title or not. It is his contention that such a power is only vested with the competent civil Courts. He also points out that the petitioner has presented all the papers, paid the requisite fee and has constructed the building as per the said plan. It is his contention that such a power is only vested with the competent civil Courts. He also points out that the petitioner has presented all the papers, paid the requisite fee and has constructed the building as per the said plan. Relying on the photograph filed, he argues that a substantial part of the structure has already been completed. Therefore, it is his contention that the alleged defects in title, as relied on by the 1st respondent in their order, are not correct. It is also his contention that the order passed does not have any legal sanctity. Sri O.Manohar Reddy, also makes it clear that the petitioner has valid title, having acquired the same under proper documents. He states that he does not admit about the correctness of the findings also. 6. On behalf of the 1st respondent-municipality. Sri N. Ranga Reddy argues in line with the counter that has been filed and more so relying on paragraphs 15 and 16 of the counter. He submits that there are defects in the title, which compelled the Municipality to issue a show cause notice and demand an explanation from the petitioner. He submits that after the explanation was received the matter was considered and thereafter the impugned order was passed. He points out that in view of the fraud played, the 1st respondent municipality was right in taking this decision. He submits that the fraud unravels every transaction and the 1st respondent did not commit any mistake in passing the impugned order, in view of the seriousness of the allegations, which according to him are also proved. Therefore, learned standing counsel justifies the action of the 1st respondent. 7. Sri M. Jaya Rami Reddy, learned counsel appearing for the 2nd respondent also supports the argument of the learned standing counsel for the 1st respondent. He also states that on the basis of fraudulent documents a building plan was approved; that the petitioner does not have title to the property. Apart from that he also relies upon Section 345 of the Act and argues that as there is an appeal provided, a Writ is not a proper remedy. 8. This Court after hearing all the learned counsel notices that under the A.P. Municipalities Act, 1965, there is no provision which empowers the Municipality to carry out a detailed investigation into the title of the person applying for the building permission. 8. This Court after hearing all the learned counsel notices that under the A.P. Municipalities Act, 1965, there is no provision which empowers the Municipality to carry out a detailed investigation into the title of the person applying for the building permission. The power of the Municipality, as can be seen from Section 215 of the Act, is limited to verifying under certain essential features specified under Section 215 (1) to (6). These sub-sections do not allow the Municipality to go into the issue of the title. 9. Apart from this, this Court also agrees with the submissions made by the learned counsel for the petitioner, whether the documents filed by the petitioner company for construction of the building are valid or not, whether any fraud was committed and / or whether proper title was conveyed through the said document, is a matter, which cannot be decided in such a summary manner. These are all matters which require evidence. It is for this reason that such a power to grant a declaration etc., is conferred upon the civil Courts alone. The summary nature of the enquiry contemplated under Section 215 of the Act does not extend to examining the title of the applicant. 10. So, agreeing with the argument of the petitioner is correct, this Court has to hold that it is a Civil Court alone which can decide such disputed questions of fact / title. Therefore, this Court has to hold (without pronouncing anything on the merits of the document or the title) that the 1st respondent's action in passing the impugned order is totally incorrect. 11. As far as the further submission of the learned counsel for the 2nd respondent that there is a provision for appeal and that a Writ is not a proper remedy, this Court holds that the same is a self-imposed restriction. Time and again, the Hon'ble Supreme Court of India clarified that even if there is an alternative remedy, if there is a gross violation of law or of a statutory provision, the existence of an alternative remedy, however, will not preclude this Court from entertaining the Writ. This law is well settled and need not to be repeated again here. As the action of the 1st respondent is not supported by law; this Court holds that the Writ is maintainable. This law is well settled and need not to be repeated again here. As the action of the 1st respondent is not supported by law; this Court holds that the Writ is maintainable. In that view of the matter, this Court holds that the petitioner has made out a case. The 1st respondent does not have the jurisdiction or the authority in passing the impugned order in Roc.No.1013/2019-G1, dated .12.2019, signed on 02.12.2019. The same is therefore, set aside. 12. With the above observation, the Writ Petition is allowed. No order as to costs. 13. Consequently, the miscellaneous applications, if any, shall stand closed.