Gadekarla Chaitanya Krishna vs State Of Telangana

This Writ Petition is filed seeking to declare the action of the 4th respondent, in issuing the notice bearing Roc.No.G1/01/MCG/2021 dated 27.01.2021 as illegal and to set aside the same.

Heard Sri N.Nagendra Babu, learned counsel for the Petitioner, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent No.1 and 3, learned Govt. Pleader for Revenue appearing for the 2nd respondent, Sri N.Praveen Kumar, learned standing counsel appearing for the 4th respondent and Sri Mohd.Islamuddin Ansari, learned counsel appearing for the 5th respondent and perused the record.

FACTS OF THE CASE

i) The petitioner claims that his father obtained permission dated 16.10.2008 from the then Gram Panchayat, Dowdarapally, Gadwal, Mahaboobnagar district, for construction of workshop consisting of ground + first floor in Sy.Nos.774 and 775 of Dowdarapally Village.

ii) His father completed construction in 2009.

iii) The said Dowdarapally Gram Panchayat was merged with the 4th respondent-Municipality on 11.10.2012. Thereafter, the 4th respondent has assessed the said house and allotted House No.1-12-1C/7.

iv) Father of the petitioner has executed a gift settlement deed bearing document No.9123/2012, dated 26.11.2012 in favour of the petitioner herein in respect of the said property. By virtue of the said gift settlement deed, the petitioner became absolute owner of the said subject property.

v) Thereafter, he has executed a registered rental agreement bearing document bearing No.1557/2015 dated 05.03.2015 in favour of M/s.Meghanath Automobiles, a partnership firm.

vi) The 4th respondent had issued a notice dated 27.01.2021 to the petitioner herein informing that the petitioner is proceeding with unauthorized construction of Hero Bike Show Room building which is located besides Collectorate in Sy.Nos.774 and 775, without obtaining prior building permission from the 4th respondent which is against the provisions of the Telangana Municipalities Act, 2019 (for short, 'the Act'). The 4th respondent has directed the petitioner to stop the further construction, remove the unauthorized construction and submit related documents within seven (7) days of receipt of the said notice, failing which action will be initiated under Section 178(2) and (8) of the Act.

vii) In the said notice, dated 27.01.2021, the 4th respondent has referred letter dated 07.01.2021 of the 2nd respondent.

viii) Challenging the said notice, the petitioner herein had filed the present writ petition.

CONTENTIONS OF THE 5TH RESPONDENT

i) As per notification dated 13.07.2006, the subject land is Waqf land.

ii) The petitioner herein has obtained interim order from this Court by suppression and misrepresentation of facts.

iii) The petitioner has not completed the construction in 2009 and the same was completed in the year 2014. There is no permission granted by the then Gram Panchayat for construction of first floor.

iv) In support of the same, he has placed reliance on the gift settlement deed dated 26.11.2012 executed by the father of the petitioner in favour of the petitioner and also rental deed dated 05.03.2015 executed by the petitioner in favour of M/s.Meghanath Automobiles.

v) Placed reliance on the information furnished by the 4th respondent under the Right to Information Act, 2005 (for short, 'the RTI Act').

vi) The petitioner made construction unauthroizedly over the subject property and the same is liable to be removed.

vii) He is also having right over the subject property. He has placed reliance on the agreements that were registered against the father of the petitioner and the petitioner including Cr.No.21 of 2021 registered on the complaint lodged by the Chief Executive Officer of the Telangana State Waqf Board.

viii) The father of the petitioner created fake documents dated 21.11.2016 by impersonating signature of the Chief Executive Officer of Waqf Board.

ix) On the letter dated 07.01.2021 of the 2nd respondent, the 4th respondent has issued impugned notice dated 27.01.2021 and therefore, there is no illegality or irregularity in issuing the impugned notice.

x) With the said submissions, he sought to dismiss the writ petition.

CONTENTIONS OF THE 4TH RESPONDENT

Whereas, Sri N.Praveen Kumar, learned standing counsel appearing for the 4th respondent, on instructions, would submit that the 4th respondent had issued impugned notice, dated 27.01.2021 on the complaint lodged by the 2nd respondent. The petitioner herein instead of submitting documents as sought by the 4th respondent, approached this Court by way of filing the preset writ petition.

Therefore, he sought to dismiss the present writ petition.

CONTENTIONS OF THE RESPONDENT No.2

Learned Govt. Pleader for Revenue adopted the arguments of the learned standing counsel appearing for the 4th respondent.

CONSIDERATION OF THE COURT

The above stated facts would clearly reveal that the father of the petitioner has obtained permission, dated 16.10.2008 from the then Dowdarpally Gram Panchayat, with regard to construction of workshop and proposed first floor of existing Show Room in Sy.Nos.774 and 775 of the said Dowdarpally village. In proof of the same, the learned counsel for the petitioner has filed a copy of the permission, dated 16.10.2008 along with the plan. Father of the petitioner has completed construction of the residential building in terms of the said permission dated 16.10.2008. Thereafter, the said Gram Panchayat was merged with the 4th respondent-Municipality on 11.10.2012.

Father of the petitioner has executed a gift settlement deed bearing document No.9123 of 2012, dated 26.11.2012 in favour of the petitioner with regard the subject property. Thereafter, the petitioner had executed rental agreement bearing document No.1557 of 2015, dated 05.03.2015, in favour of M/s.Meghanath Automobiles. Even according to the petitioner, his father completed construction in the year 2009 itself.

Referring to the schedule to the lease deed and schedule to the rental agreement, learned counsel for the 5th respondent would contend that there is no mention about the first floor in the same and therefore, father of the petitioner has constructed first floor illegally. A perusal of the schedule to the said gift settlement deed and lease deed would reveal that boundaries, area, measurements and survey numbers etc., are specifically mentioned. Therefore, the 5th respondent cannot contend that the father of the petitioner has constructed the first floor unauthorizedly. Even the information filed by the 4th respondent obtained under the RTI Act, would reveal that the construction was completed on 03.02.2014 and assessment was done on 19.02.2016 in respect of the subject building. Therefore, the 5th respondent cannot take advantage of the contents of the gift settlement deed and lease deed.

5th respondent claims that the subject property is a waqf land and father of the petitioner created fake document on 21.11.2016. As stated above, father of the petitioner had obtained building permission, dated 16.10.2008 and he has completed construction in the year 2009 itself. Father of the petitioner had executed the above said gift settlement deed on 26.11.2012 and on the strength of the same, the petitioner herein has executed the above said rental agreement on 05.03.2015. On merger of the said Gram Panchayat with the 4th respondent, the said building was assessed by the 4th respondent and House No.1-12-1C/7 was allotted. The petitioner herein has been paying property tax to the 4th respondent and also to the Gram Panchayat. The said M/s.Meghanath Automobiles has obtained registration certificate from the District Industries Centre, Mahaboobnagar. Learned counsel for the petitioner has filed a copy of the same. Neither the Waqf Board, nor the 5th respondent have taken any steps.

Vide letter dated 07.01.2021, the 2nd respondent has informed the 4th respondent that no permission was issued to the Hero Bike Show Room building which is located besides the Collectorate in Sy.Nos.774 and 775 which is in the name of the petitioner herein whose name is entered in municipal assessment register. Therefore, the 2nd respondent has directed the 4th respondent to take necessary action as per the Act and Rules under the Act and report compliance within fortnight without fail. A copy of the same was marked to the 5th Respondent.

A perusal of the said letter dated 07.01.2021 would reveal that there is no mention about the basis on which the 2nd respondent came to a conclusion that the petitioner herein has not obtained any permission for construction of building. In the said letter, he has referred about the lay out permission issued by the 3rd respondent in L.P.No.79 of 2002 and according to him, it is fake L.P. Thus, the lay out permission was of the year 2002. The same is in respect of the land admeasuring Ac.9-05guntas in Sy.No.777 of Gadwal Town. Whereas, the petitioner is claiming that the subject property is in Sy.Nos.774 and 775. Thus, the 2nd respondent, being responsible officer, without verification of documents properly, issued letter dated 07.01.2021 directing the 4th respondent to take action and report compliance within fortnight without fail. Therefore, the said letter dated 07.01.2021 issued by the 2nd respondent is without application of mind and without verification of documents.

Basing on the said letter, dated 07.01.2021, the 4th respondent, being subordinate to the 3rd respondent, had issued notice dated 27.01.2021 straightaway directing the petitioner to stop construction and also remove unaurhorized construction. There is no mention about the basis on which the 4th respondent came to conclusion that the construction is unauthorized. As stated supra, neither the 5th respondent nor the Waqf Board or the Municipality have taken any steps from 16.10.2008, the day on which the petitioner's father obtained permission. After lapse of 13 years, respondents cannot claim that the subject construction is unauthorized. It appears that on the pressure exerted by the 2nd respondent, 4th respondent has issued the notice dated 27.01.2021 impugned herein which is without any basis, arbitrary and illegal. Therefore, the said notice is liable to be set aside.

CONCLUSION

In the result, the Writ Petition is allowed. The impugned notice bearing Roc.No.G1/01/MCG/2021 dated 27.01.2021 issued by the 4th respondent is set aside. There is no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.