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2025 DIGILAW 25 (TS)

Kishore Rai v. Gadi Praveen Kumar

2025-01-31

MOUSHUMI BHATTACHARYA

body2025
ORDER : Moushumi Bhattacharya, J. The petitioner prays for setting aside of a letter dated 26.07.2014 issued by the respondent No.2/ General Officer Commanding (GOC)-HQ, Andhra Sub Area, Secunderabad, by which the Security Clearance accorded by the HQ for the construction work undertaken by the petitioner in Survey No.90/P, Bandlaguda Village, Rajendranagar Mandal, Ranga Reddy District, was directed to be kept in abeyance. 2. The petitioner is represented by the General Power of Attorney Holders. 3. The ambiguity in the status of the Survey Number where the petitioner’s construction is taking place is the cited ground in the impugned letter. The petitioner assails the impugned letter as being arbitrary and illegal in light of the facts both prior and subsequent to the impugned letter. 4. The facts which have been presented to the Court and are relevant to the present writ petition are briefly stated below: 5. The petitioner claims to have purchased the subject property i.e., the land in Survey No.90/P situated at Bandlaguda Jagir Village and Gram Panchayat, Rajendranagar Mandal, Ranga Reddy District, under a registered Sale Deed dated 02.12.2006. The petitioner obtained a ‘No Objection Certificate’ on 29.05.2006 from the respondent No.2 for construction of residential houses on the land covered by Survey No.90 (Part) subject to the condition that the buildings shall be constructed in accordance with the approved plans. The petitioner thereafter executed a Registered Agreement of Sale-cum-General Power of Attorney on 05.06.2007 in favour of B.H. Ravi Kumar and Syed Shah Mahmood Hussaini for developing the property. On 05.01.2011, the petitioner had obtained a sanction from the Gram Panchayat, Rajendranagar Mandal, Ranga Reddy District for construction of 17 Duplex Villas (Ground + 2 Floors). The petitioner was however stopped by the respondent No.2 on 18.01.2013 from proceeding with the construction on the ground that the petitioner would have to obtain a No Objection Certificate from the respondent No.2. 6. The petitioner applied for a No Objection Certificate on 07.02.2013 which was finally granted on 14.08.2013 restricting the Security Clearance to only “Ground Floor”. The petitioner challenged the restriction in an earlier writ petition, namely, W.P.No.33343 of 2013, during the pendency of which the respondent No.2 issued the letter dated 26.07.2014 (impugned in the present writ petition) keeping the Security Clearance given on 14.08.2013 in abeyance. 7. The petitioner challenged the restriction in an earlier writ petition, namely, W.P.No.33343 of 2013, during the pendency of which the respondent No.2 issued the letter dated 26.07.2014 (impugned in the present writ petition) keeping the Security Clearance given on 14.08.2013 in abeyance. 7. The petitioner filed O.S.No.123 of 2014 along with an application (I.A.No.464 of 2014) for restraining the respondent No.2 from interfering with the petitioner’s possession over the schedule property. The application (I.A.No.464 of 2014) was dismissed on 01.12.2014 by the learned Additional Junior Civil Judge-cum-XVII Metropolitan Magistrate, Cyberabad at Rajendranagar. The petitioner challenged the same in C.M.A.No.1 of 2015 in the Court of the learned II Additional District Judge, Ranga Reddy District at L.B. Nagar. 8. During pendency of the writ petitions and C.M.A.No.1 of 2015, the respondent No.2 initiated proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act , 1971 before the Station Commander and Estate Officer, Secunderabad, on 28.03.2015 and the Station Commander and Estate Officer, Secunderabad passed an order on 27.06.2015 declaring the petitioner as an encroacher of the schedule property and directed the petitioner to hand over possession of the schedule property within 15 days. The General Power of Attorney Holders of the petitioner challenged the said order in C.M.A.No.91 of 2015 in the Court of the learned II Additional District Judge, Ranga Reddy District. 9. The learned II Additional District Judge, Ranga Reddy District, allowed both the C.M.As (C.M.A.Nos.1 and 91 of 2015) on 21.11.2019. A Co-ordinate Bench of this Court allowed W.P.No.33343 of 2013 on 21.12.2023 wherein the petitioner had prayed for Security Clearance for Ground + 2 Floors and directed the respondent No.2 to consider the request of the petitioner for issuance of Security Clearance for construction of Ground + 2 Upper Floors for residential houses in the property taking into consideration certain relevant factors which will be enumerated later. 10. Learned Senior Counsel appearing for the petitioner submits that the impugned letter dated 26.07.2014 issued by the respondent No.2 keeping the Security Clearance granted on 14.08.2013 in abeyance cannot be sustained since the Co-ordinate Bench of this High Court allowed W.P.No.33343 of 2013 on 21.12.2023. Counsel further disputes that the petitioner has encroached upon Survey No.91 and relies on the common judgment dated 21.11.2019 passed by the learned II Additional District Judge, Ranga Reddy District, in C.M.A.Nos.1 and 91 of 2015 on this issue. 11. Counsel further disputes that the petitioner has encroached upon Survey No.91 and relies on the common judgment dated 21.11.2019 passed by the learned II Additional District Judge, Ranga Reddy District, in C.M.A.Nos.1 and 91 of 2015 on this issue. 11. The issue before the Court is whether the impugned letter dated 26.07.2014 issued by the respondent No.2/GOC-HQ, Andhra Sub Area, Secunderabad, keeping the Security Clearance granted to the petitioner in abeyance, can be set aside. 12. The petitioner’s contention is that the impugned letter dated 26.07.2014 cannot be sustained in light of the order of the Co- ordinate Bench in W.P.No.33343 of 2013 dated 21.12.2023. The petitioner relies on the common judgment dated 21.11.2019 passed by the II Additional District Judge, Ranga Reddy District at L.B. Nagar, allowing C.M.A.Nos.1 and 91 of 2015, which were filed challenging the order dated 01.12.2014 passed by the learned Additional Junior Civil Judge, Rajendranagar, in I.A.No.464 of 2014 in O.S.No.123 of 2014, and the order dated 27.06.2015 passed by the Station Commander and Estate Officer, Telangana & Andhra Sub Area, respectively. 13. The primary contention of learned counsel appearing for the respondents is of an ambiguity with regard to the Survey Numbers where the petitioner is carrying out construction work as well as an ambiguity with regard to the Security Clearance being granted only for Ground Floor or Ground + 2 Floors. 14. After hearing learned counsel for the parties and perusing the material placed before the Court including the orders relied on by the petitioner, this Court deems it fit to point out certain material facts which are evident from the material on record. 15. First, the order passed by the Co-ordinate Bench on 21.12.2023 in W.P.No.33343 of 2013 was concerned with regard to the restriction contained in the Security Clearance for construction of residential houses in Survey No.90/P to Ground Floor. 15. First, the order passed by the Co-ordinate Bench on 21.12.2023 in W.P.No.33343 of 2013 was concerned with regard to the restriction contained in the Security Clearance for construction of residential houses in Survey No.90/P to Ground Floor. The order passed in the said writ petition needs to be seen in the context of the specific prayers in W.P.No.33343 of 2013 which are set out below: “….to issue a writ, direction or order more particularly a writ of Mandamus declaring the action of the second respondent in restricting the Security Clearance for construction of residential houses in the property i.e., land admeasuring 1 Acres 25.75 Guntas in Sy.No.90/P situated at Bandlaguda Village Rajendernagar Mandal, Ranga Reddy District, to Ground floor as arbitrary, discriminatory, illegal, null and void and without jurisdiction and to consequentially direct the second respondent to consider the Security Clearance for construction of the Ground Plus 2 Upper Floors for residential houses in the property i.e., land admeasuring 1 Acres 25.75 Guntas in Sy.No.90/P situated at Bandlaguda Village, Rajendernagar Mandal, Ranga Reddy District”. 16. Incidentally, the reliefs claimed in W.P.No.33343 of 2013 did not specifically mention the Security Clearance dated 14.08.2013 and instead merely mention the content in the Security Clearance restricting the petitioner’s construction to Ground Floor only. The relief claimed in I.A.No.1 of 2013 is to direct the respondent No.2 not to interfere with the construction being carried out by the petitioner in Survey No.90/P situated at Bandlaguda Village, Rajendranagar Mandal, Ranga Reddy District. 17. Further, it is seen from the order passed by the Co-ordinate Bench on 21.12.2023 in W.P.No.33343 of 2013 that there is no reference to the letter dated 26.07.2014 (impugned in the present Writ Petition). Even though W.P.No.33343 of 2013 was filed before the petitioner received the letter dated 26.07.2014, it is difficult to accept that the petitioner failed to bring this letter to the notice of the Co-ordinate Bench or file a subsequent I.A. for relief against the letter at the time of disposal of the writ petition on 21.12.2023. 18. The petitioner’s entire case rests on the order of the Co- ordinate Bench including that the Security Clearance dated 14.08.2013 was set aside by the Co-ordinate Bench. The petitioner invites this Court to accordingly set aside the impugned letter dated 26.07.2014 on the ground that the Security Clearance dated 14.08.2013 was set aside by the order dated 21.12.2023. 19. 18. The petitioner’s entire case rests on the order of the Co- ordinate Bench including that the Security Clearance dated 14.08.2013 was set aside by the Co-ordinate Bench. The petitioner invites this Court to accordingly set aside the impugned letter dated 26.07.2014 on the ground that the Security Clearance dated 14.08.2013 was set aside by the order dated 21.12.2023. 19. It is however relevant to point out that the order of the Co- ordinate Bench dated 21.12.2023 did not set aside the Security Clearance and directed the respondent No.2 to consider the request of the petitioner for issuance of Security Clearance for construction of Ground + 2 Upper Floors for residential houses in Survey No.90/P of Bandlaguda Village, Rajendranagar Mandal, Ranga Reddy District, in accordance with law, taking into consideration an earlier permission granted to the petitioner on 05.01.2011, the No Objection Certificate dated 29.05.2006 of Maj. Quarter Master, Artillery Centre, Hyderabad, and the observations at para 19 of the common judgment order dated 21.11.2019 in C.M.A.Nos.1 and 91 of 2015. 20. It is evident from the material and the stand taken by the parties that the impugned letter dated 26.07.2014 is being considered, for all practical purposes, after 11 years and that the impugned letter only addresses the ambiguity in the location of the petitioner’s construction i.e., whether the construction is in Survey No.90/P or Survey No.91. The only mechanism available to solve this controversy is to direct a joint survey of the location of the construction. The joint survey would resolve the issue for determining whether the petitioner is carrying out the construction in Survey No.90/P for which the Security Clearance dated 14.08.2013 was granted or whether the petitioner has encroached into the adjoining land in Survey No.91. The joint survey shall be conducted with the representatives of both the petitioner as well as the respondents to set at rest the issue raised in the impugned letter dated 26.07.2014. 21. The joint survey shall be conducted with the representatives of both the petitioner as well as the respondents to set at rest the issue raised in the impugned letter dated 26.07.2014. 21. With regard to the Security Clearance dated 14.08.2013 restricting the petitioner’s construction to Ground Floor only, this Court finds that the Co-ordinate Bench in paragraph 18 of the order dated 21.12.2023 in W.P.No.33343 of 2013 had directed the respondent No.2/GOC-HQ, Andhra Sub Area, to consider the request of the petitioner for issuing Security Clearance for construction of Ground + 2 Upper Floors for residential houses in Survey No.90/P within two weeks from the date of receipt of a copy of the order and communicate the decision to the petitioner. 22. There is no evidence brought to the notice of this Court that the respondent No.2 has complied with the order or communicated its decision to the petitioner in terms of the directions. Assuming that the respondent No.2 is yet to comply with the directions given by the Co-ordinate Bench in the order dated 21.12.2023, this Court is of the view that the respondent No.2 should be given a final opportunity to comply with the directions of the Co-ordinate Bench within a period of four weeks from the date of this order with due regard to the common judgment passed in C.M.A.Nos.1 and 91 of 2015 by the learned II Additional District Judge, Ranga Reddy District at L.B. Nagar, and the earlier permission granted to the petitioner on 05.01.2011 as well as No Objection Certificate dated 29.05.2006 whereby the petitioner was specifically given permission to construct Ground + 2 Upper Floors on the land in Survey No.90/P in accordance with the approved plans. In fact, the No Objection Certificate dated 29.05.2006 issued by the Maj. Quarter Master, Artillery Centre, Hyderabad, specifically records that no further correspondence on the subject is required or will be entertained and the matter stands closed once and for all. 23. Pending consideration of the petitioner’s case by the respondent No.2, the Court does not find any need to issue further directions on the respondents. The order passed by the Co- ordinate Bench on 21.12.2023, the common judgment passed by the II Additional District Judge, Ranga Reddy District in C.M.A.Nos.1 and 91 of 2015, the earlier permission dated 05.01.2011 and the No Objection Certificate dated 29.05.2006 would be sufficient for considering the petitioner’s request. The order passed by the Co- ordinate Bench on 21.12.2023, the common judgment passed by the II Additional District Judge, Ranga Reddy District in C.M.A.Nos.1 and 91 of 2015, the earlier permission dated 05.01.2011 and the No Objection Certificate dated 29.05.2006 would be sufficient for considering the petitioner’s request. The discriminatory conduct on the part of the respondents which was highlighted by the II Additional District Judge, Ranga Reddy District at L.B. Nagar, to the extent of allowing other adjacent constructions to exceed Ground + 2 Floors, shall also be taken into consideration. 24. As stated above, the controversy with regard to the Survey Numbers as highlighted in the impugned letter dated 26.07.2014 would be resolved by a joint survey with the representatives of both the petitioner and the respondents. The joint survey shall be undertaken by the parties within two weeks from the date of this order and should also form part of the decision-making process of the respondent No.2 as had been directed in the earlier writ petition and is being reiterated in the present writ petition. Any form of interim direction which the petitioner had enjoyed should continue as was also directed by the Co-ordinate Bench. 25. W.P.No.409 of 2015, along with all connected applications, is disposed of in terms of the above. There shall be no order as to costs.