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2022 DIGILAW 1040 (AP)

Nagipogu Sudhakar v. State Of Andhra Pradesh

2022-10-17

RAVI NATH TILHARI

body2022
JUDGMENT : 1. Heard Sri G.Ramesh Babu, learned counsel for the petitioner, Sri N.Ranga Reddy, learned Standing Counsel for respondent No.2/Badvel Municipality, represented by its Commissioner and Sri S.Lakshminarayana Reddy, learned counsel for the unofficial respondent Nos. 5 to 7. 2. The petitioner has filed the present Writ Petition under Article 226 of the Constitution of India for the following relief: “to issue an appropriate Writ, Order or Direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondent Nos.2 and 4 herein in not taking any action against the unofficial Respondent Nos.5 to 7 herein for making illegal constructions of the land of the Petitioner herein in an extent of Ac.2.89 cents situated in Sy.No.1755-1, Chennampalli Village Fields of Badvel Town, YSR Kadapa District without any Building Plan, Layout Approval or permission from the 2nd Respondent herein or from the Respondent Nos.3 and 4 under Revenue Laws such as NALA Act etc., as illegal, arbitrary and unconstitutional and consequently direct the Respondent Nos.2 and 4 to take immediate action against the illegal construction undertaken by the Respondent Nos.5 to 7 herein in the land of the Petitioner herein in an extent of Ac.2.89 cents situated in Sy.No.1755-1 Chennampalli Village Fields of Badvel Town YSR Kadapa District.” 3. Sri G. Ramesh Babu, learned counsel for the petitioner submits that the petitioner’s mother Smt. N.Obulamma purchased the land to an extent of Ac.2.89 cents in Sy.No.1755-1 situated at Chennampalli Village Fields of Badvel Town, YSR Kadapa District (in short subject land) from her vendor namely Nadipogu Veeraiah vide Registered sale deed document No.1985/1982, dated 25.03.1982. The name of the petitioner’s mother was also mutated in the revenue records, such as 1-B (ROR), Namuna and No.3 Adangal/Pahani and the revenue authorities also issued Pattadar Pass Book. After her demise, the petitioner, with other legal heirs is in enjoyment of the subject land. He further submits that the respondent Nos. 5 to 7 without any right or title started raising illegal construction in the subject land forcibly as the 5th respondent was elected the Vice Chairperson of the 2nd respondent/Badvel Municipality, without obtaining any building plan against which the petitioner made a complaint to the 3rd respondent/District Collector, YSR Kadapa District, and the Municipal authorities but, no action was taken. 5 to 7 without any right or title started raising illegal construction in the subject land forcibly as the 5th respondent was elected the Vice Chairperson of the 2nd respondent/Badvel Municipality, without obtaining any building plan against which the petitioner made a complaint to the 3rd respondent/District Collector, YSR Kadapa District, and the Municipal authorities but, no action was taken. The petitioner then approached this Court in W.P.No.14715 of 2021, which was disposed of by order dated 29.10.2021 recording the submission of the learned Standing Counsel for the Municipality “that the respondent-Municipal Authorities, only after holding enquiry as to the title and right over the subject property, will proceed further for grant of building permission”, but, inspite thereof, the 5th respondent being the Vice Chairperson of the Municipality, the official respondents did not take any action. He further submits that the petitioner has filed O.S.No.38 of 2022 on the file of the Junior Civil Judge, Badvel against the respondents 2 to 4, 6 and 7 for a decree of declaration of right and title over the subject land as also for permanent injunction, which is pending. 4. Sri N. Ranga Reddy, learned standing counsel submits that the 2nd respondent is not aware of any of the rights of the petitioner or his mother in the subject land. The 2nd respondent on receipt of the notice of the writ petition directed its staff to take steps to stop the construction. The 2nd respondent also secured the presence of the respondent Nos.5 to 7 to make enquiry into their right, possession and the building permission in which enquiry it was found that the plan was approved in the year 2008 permitting the 5th, 6th and 7th respondents to construct building in Sy.No.1755/1, Sy.No.1755/1 & Sy.No.1755/6 respectively. He, however, submits that the 2nd respondent has no authority to accord permission for any construction in the sites and the assigned lands, as the Government is the owner of which D.K.T Patta is granted to an individual. The 2nd respondent is collecting only “Special Development Charges” as per the Municipal council’s resolution No.36 dated 09.06.2021 pursuant to which the 5th and 6th respondents paid application charges on10.06.2021 and the 7th respondent paid the charges on 09.06.2021. The 2nd respondent is collecting only “Special Development Charges” as per the Municipal council’s resolution No.36 dated 09.06.2021 pursuant to which the 5th and 6th respondents paid application charges on10.06.2021 and the 7th respondent paid the charges on 09.06.2021. He further submits that the 2nd respondent has no authority with respect to the subject land to initiate any legal action and has further raised the plea that in view of the pendency of O.S.No.38 of 2022, the petitioner cannot maintain the present writ petition. 5. Sri Lakshmi Narayana Reddy, learned counsel for the respondent Nos.5 to 7 submits that the D.K.T Patta was granted to respondents 5 and 6 in Sy.No.1755/1 and to respondent No.7 in Sy.No.1755/6. They applied for building plan upon which the corporation passed resolution No.36 dated 09.06.2021 to send the proposals to the Government for collecting the license fees for the building and the instructions were also issued to the Town Planning Officer to collect the building fees from the house owners constructing buildings in the D.K.T patta lands, as per Cr.No.962, dated 26.06.2020. Pursuant to the resolution, the respondents 5 to 7 deposited the fee on different dates. He further submits that the building permission as sought on 09.06.2021 but the same was neither approved nor rejected by the Commissioner of the Municipality and as such the permission shall be deemed to have been granted on expiry of sixty (60) days, under Section 214 of the A.P. Municipalities Act and consequently it cannot be said that the respondents 5 to 7 are raising construction without any building permission. 6. Sri Lakshmi Narayana Reddy, further submits that the petitioner’s mother purchased an extent of 2.89 cents or 1.170 hectares of ‘Sarkar Punja land’ in Sy.No.1755 vide sale deed dated 25.03.1982, but subsequently she sold the same vide two sale deeds, firstly on 30.01.1986, to two different vendees to an extent of Ac.1.89 cents and secondly on 29.12.1988 the remaining Ac.1.00 cents. The petitioner therefore has no title or right remaining in the subject property, to challenge, raising of construction by the respondents 5 to 7 over the subject land. 7. The parties counsels submit that the writ petition is confined only to Sy.No.1755/1 to an extent of Ac.2.89 cents. 8. The petitioner therefore has no title or right remaining in the subject property, to challenge, raising of construction by the respondents 5 to 7 over the subject land. 7. The parties counsels submit that the writ petition is confined only to Sy.No.1755/1 to an extent of Ac.2.89 cents. 8. From the submissions advanced by the learned counsels for the parties, it is evident that the basic dispute, between the petitioner and the respondents 5 to 7 is title dispute with respect to the subject land. According to the petitioner it is his private land coming down from his mother who purchased vide sale deed dated 25.03.1982, whereas according to the respondents 5 to 7 they were granted D.K.T Patta by the Government. In other words it is Government land over which patta was granted to them. 9. Another dispute in view of the submissions of the learned counsels for the 2nd respondent on the one hand and for the 5th to 7th respondents on the other is, if there can be deemed grant of building permission under Section 214 of the Act on expiry of 60 days from the date of the application of respondents 5 to 7 for building permit, in as much as the submission of the learned standing counsel for the 2nd respondent is that the 2nd respondent is not competent to grant building permit in D.K.T patta land, and if the same is correct, the submission of the learned counsel for the respondents 5 to 7 regarding applicability of Section 214 and deemed grant of building permit would not be liable to be accepted, but the court is not entering into this aspect of the matter, for the reason that to adjudicate this aspect, the fact if the subject land is private land of the petitioner or the government land of which D.K.T patta could be granted to respondents 5 to 7, would also require adjudication, for which title suit is pending between the parties. Even otherwise such disputed question of fact requiring evidence cannot be gone into in the exercise of writ jurisdiction, atleast, at this stage of the proceedings. 10. Undisputedly, the petitioner has filed O.S.No.38 of 2022 for declaration of right and title over subject land and for permanent injunction, which is pending before Junior Civil Judge, Badwel. In O.S.No.38 of 2022, the petitioner has also filed an application for temporary injunction. 10. Undisputedly, the petitioner has filed O.S.No.38 of 2022 for declaration of right and title over subject land and for permanent injunction, which is pending before Junior Civil Judge, Badwel. In O.S.No.38 of 2022, the petitioner has also filed an application for temporary injunction. The prayer in O.S.No.38 of 2022 is as under : “13. The plaintiffs, therefore prayed that the Hon’ble Court may be pleased to pass a decree and judgment in favour of the plaintiffs and against the defendant by :- a) Declaring the right and title of the plaintiffs over the suit land. b) Granting a permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. c) Declare the D.K.T pattas granted by the defendant No.4 to the defendant Nos.1 and 2 as sham and nominal and not binding on the plaintiffs and direct the defendant Nos.3 and 4 not to assign the suit land to third parties. d) Directing the defendants 1 and 2 to remove all the constructions raised in the suit land as mentioned in plaint plan and deliver vacant possession of the land to the plaintiffs, failing which the same shall be removed through process of law and handover vacant possession of the suit land to the plaintiffs. e) Directing the defendants 1 to 5 to pay the cost of the suit and f) Grant such other relief or reliefs as the Hon’ble Court deems fit under the circumstances of the case, in the interest of justice.” 11. At this stage, learned counsel for the petitioner submits that the petitioner’s mother had also filed O.S.No.215 of 2011 on the file of Junior Civil Judge, Badvel, in which the petitioner has been substituted in place of his mother. The 5th respondent’s mother, is defendant No.1 in O.S.No.215 of 2011 which is for the following prayers: “The plaintiffs, therefore pray the Hon’ble court may be pleased to pass a decree in favour of the plaintiffs and against the defendants by: i) Declaring the title of the plaintiffs and defendant No.4 over the suit land; ii) Granting a permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs and defendant No.4; iii) Directing the defendant Nos. 2 and 3 not to assign the suit land to third parties. 2 and 3 not to assign the suit land to third parties. iv) Directing the defendants Nos. 1 to 3 to pay the costs of the suit and v) Grant such other relief or reliefs as the Hon’ble Court deems fit under the circumstances of the case, in the interest of justice.” 12. The respondent/defendants have already filed their written statement in O.S.No.215 of 2011 and in O.S.No.38 of 2022. 13. In view of the pendency of two suits involving determination of title to the subject land it would be appropriate for the contesting parties to get determination of their respective disputed right and title in the pending suits. 14. In Masnam Hussain v. State of Telangana, 2020(5) ALD 539, upon which learned counsel for the 2nd respondent placed reliance it was held that the respondents therein had encroached and occupied the land of the petitioner therein and even if the authorities were not taking action against illegal construction, the remedy of the petitioner was to approach the competent Civil Court, seeking decree of mandatory injunction and recovery of possession. 15. In Roshina T. v. Abdul Azeez K.T. and others, (2019) 2 Sessions Court 329, upon which learned counsel for the respondents 5 to 7 placed reliance the Hon’ble Apex Court held as under in paragraph No.14: “14. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available-except where violation of so me statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special a nd extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230 ).” 16. The jurisdiction under Article 226 of the Constitution being special a nd extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230 ).” 16. In the aforesaid judgment, the Hon’ble Apex Court held that the remedy under Article 226 of the Constitution of India shall not be available, except where violation of some statutory duty on part of the statutory authority is alleged and in such cases, the court has jurisdiction to issue appropriate directions to the authority concerned. 17. The petitioner alleges that the construction is being raised by the respondents 5 to 7 without any building permission. Except for the submission of deemed permission under Section 214 of the M.C. Act, it is admitted by the learned counsel for the respondents 5 to 7 that there is no permission granted for building on their application for grant of permit dated 09.06.2021. The permit of 2008 might have expired, on expiry of specified period and for that reason the respondents 5 to 7 had applied for building permit on 09.06.2021 otherwise there was no occasion for them to apply for building permit on 09.06.2021. Consequently, the submission of the petitioner’s counsel that the statutory authorities and the official respondents are failing in discharging of statutory duty to stop raising of construction by the respondents 5 to 7, without permission of any competent authority, cannot be rejected outright so as to hold that the writ petition is not maintainable. 18. In the writ petition, this court vide interim order dated 02.05.2022 directed the respondents to maintain status quo obtaining as on that day. The interim order dated 02.05.2022 was extended from time to time and is in operative till today. 19. In the result, to meet the ends of justice, this writ petition is being disposed of finally with the following directions: i) The learned Trial court is requested to expeditiously consider and decide the petitioner’s application for grant of temporary injunction in pending suits within a period of four weeks from the date of receipt of a copy of this order, in accordance with law, after due opportunity to the parties in suit, if there is no other legal impediment in deciding the said application. ii) Till disposal of the application for temporary injunction, the interim order dated 02.05.2022 granted in the writ petition shall continue. iii) The learned Trial Court shall decide the temporary injunction application, independently, without being influenced by any of the observations made in this judgment. 20. The writ petition stands disposed of finally. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.