IN THE COURT OF VI JUNIOR CIVIL JUDGE, CITY CIVIL COURT,
HYDERABAD.
Dated the 9 th Day of December 2019
Present: Smt.C.M.Rajya Lakshmi XXI Junior Civil Judge FAC VI Junior Civil Judge,
O.S.No. 870 of 2016
Between:
1.Smt.Laveena D/o.Atmaram Ailani, aged 33 years, Occ: Business,
2. Smt Shalu B.Ailani W/o.Late Bharat Kumar, Aged 33 years, Occ: Business 3.Smt Jaya P.Ailani W/o.Prakash Kumar, Aged 37 years, Occ: Business.
4.Sri Prakash Kumar Ailani W/o.Atmaram Ailani, aged 45 years, Occ: Business.
5.Smt Lakshmi Devi Ailani W/o.Atmaram Ailani, Aged 61 years, Occ: Business, 6.Sri Atmaram Ailani S/o.Vishandas Ailani, aged 66 years, Occ: :Business,
All R/o.15-8-134, 135 and 208, Begum Bazar, Hyderabad.
... Plaintiffs
AND
1.The Greater Hyderabad Municipal Corporation, rep. by its Commissioner, Having its Head office at Municipal Complex, Tank Bund Road, Hyderabad.
2. G.Raveen Kumar, S/o.Late G.Srisailam, 3.G.S.Mallikarjun, S/o.Late G.Srisailam,
Both are R/o.H.No.5-4-55, Bhavani Colony, Rajendranagar, Hyderabad (Def.No.2 and 3 impleaded as per order in
CRP.No.2391/2017, dated 3.10.2017)
... Defendants.
This suit is coming before me for final hearing in the presence of
Sri.Ch.Srinivas, Advocate for the plaintiffs and of Sri.G.V.Ramana,
Advocate for the Defendant No.1, and of Sri.Gangadhar Patel, Advocate for the Defendant No.2 and 3 and upon hearing both sides and perusing the material on record and the matter having stood over for consideration, till this day this court passed the following:-
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J U D G M E N T
1.This suit is filed by plaintiff to grant perpetual injunction restraining the defendant corporation, its employees, subordinates, workmen or any other person or persons claiming through or acting under it from interfering with construction work or demolishing any part of the suit property either in whole or in part and to grant costs of the suit.
2. The brief averments in the plaint are as follows:
The plaintiff submits that they are the absolute owners and possessors of the portion of the House property in Premises Bearing Municipal No.15-6- 613,613/1 to 6, 614,614/1 & 2, 615,615/6, 618 & 619, admeasuring 8385 square feets together with undivided share of 212 square yards out of 488 square yards, situated at Feelkhana, Begum Bazar, Hyderabad having obtained the same through Registered Partition Deed dated 24.12.2016 vide document No.3114/2016 with existing Basement, Ground and 4 upper floors.
It is further submitted that portion of the suit property has been constructed by the vendors of the plaintiffs by obtaining permission and sanction vide permit No.260/35 dated 28.9.1989. Further the plaintiffs have also obtained permission for making construction in the remaining portion vide Permit
No.3430/DC/SZ/Cir-5/2011 dated 4.7.2011. Since the date of the above documents, they are in peaceful possession and enjoyment of the suit property without any interruption of any kind from any corner. They have filed the copies of the partition deed, two sanction plans and permit.
3.The plaintiffs further submitted that recently the Telangana State
Government has issued GOMS.No.152/2015 dated 2.11.2015 for regularization of the unauthorized constructions and the constructions made in deviation to sanction plan rules and they have gone through the contents of the said GO and came to under stand that owners of the property
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constructed in deviations to the sanction plan or illegal constructions and they are liable to compulsorily make such application under the said scheme. Accordingly, the plaintiffs and other owners of the complex have jointly made application to the defendant corporation as there are deviations and extra floors in the suit property vide Application No.2000061301 dated 31.12.2015 and the defendant corporation has acknowledged the receipt of the said application vide Receipt No.31122015074844 dated 31.12.2015.
The plaintiffs have paid the initial fees of Rs.10,000/- and enclosed all the relevant documents along with the said application, the same application is neither rejected nor granted and the same is pending with the defendant corporation. The plaintiffs filed the copies of BPS acknowledgment along with the copy of Building Plan.
4.The plaintiffs further submitted that the suit property has been assessed by the defendant officials for property tax and they are regularly collecting the property tax in respect of the suit property and the property tax receipt/extracts are filed. The suit property is also provided with the electricity connection and the plaintiffs are being charged for the consumption of the Electricity by the APCPDCL as per the bills. The structures in the suit property are well within the boundaries of the suit property and there is no encroachment on any side of the suit property. It is further submitted that the structures in the suit property are neither causing any inconvenience nor posing any kind of danger to any of the neighbour.
5.The plaintiffs further submitted that while the matter stood thus, the defendant officials all of a sudden visited the suit premises on 4.4.2016 at about 4 pm in the evening and tried to demolish the structures in the suit property without issuing any notice and without assigning any reasons for the reasons best known to them. With great difficulty the plaintiffs have resisted the said illegal act of the defendant officials with help of neighbours
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and the defendant officials could not succeed in their illegal act of demolition and left the suit premises threatening the plaintiffs that they would come again with more squad at any time and would under take illegal act of demolition.
6.That the plaintiffs further submitted that there is no notice to show cause or even a letter of any kind whatsoever from the defendant giving the plaintiffs at least an opportunity to demonstrate lawfulness of the plaintiff’s ownership and possession to the suit property. The plaintiffs submit that the defendant is under legal obligation to issue the notices as per the provisions of GHMC Act and give fair chance of hearing to the plaintiffs and then to proceed as per law before under taking demolition. But in the instant case, the defendant officials have not issued any notice and therefore their action in visiting the suit premises as stated supra and interfering, trying and threatening the plaintiffs to demolish the suit property without issuing any notice and without assigning any reason is void, illegal, arbitrary, malafide and against the principles of natural justice and therefore in view of the malafide acts including threat of demolition of suit property by the defendant officials, and due to urgency and above mentioned facts, the issuance of the mandatory notice u/s.685 of HMC Act is not necessary and the plaintiffs are filing the present suit without issuing any notice u/s.685 of
HMC Act. Hence the suit.
7. The brief averments in the written statement filed by
Defendant No.1:-
The defendant No.1 submits that the present suit filed by the plaintiff is not maintainable either in law or on facts of the case.
8.It is submitted that the plaintiffs are put to strict proof of their ownership and possession over the property bearing No.15-6-613, 613/1 to 6, 614, 614/1 and 2, 615, 615/6, 618 and 619, situated at
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Feelkhana, Hyderabad. It is true that the plaintiffs have obtained permission for making construction of ground and 1st floor in part of property vide Permit
No.3430/DC/SZ/Cir-5/2011 dated 4.7.2011. It is also true that the vendors of the plaintiffs obtained permission and sanction vide permit No.260/35 dated 28.9.1989 but as admitted by the plaintiffs, the plaintiffs and their vendors have made illegal and unauthorized construction of Cellar, Ground and 4 upper floors as admitted by them in the suit property by clubbing the construction with the property of adjoining property owners. There are several complaints admitting to have made illegal and unauthorized construction and hence it is clear that the plaintiffs have approached this court with unclean hands and they are not entitled for any relief form this court.
9.The defendant No.1 submitted that it is true that recently the
Telangana State Government has issued GOMS.NO.152 of 2015 dated 2.11.2015 for regularization of the unauthorized constructions and the construction made in deviation to the sanction plan rules. It is also true that the plaintiffs and other owners of the complex have joindly made application to the defendant corporation as there are deviations and extra floors in the suit property vide Application No.2000061301 dated 31.12.2015 and the defendant corporation has also acknowledged the receipt of the said applciation vide Receipt No.3112215074844 dated 31.12.2015. It is also submitted the Division bench of Hon’ble High Court has granted stay on disposal of BRS applications and hence the defendant officials are not in a position to dispose of any BPS applications including that of the plaintiffs.
10.It is further submitted that payment of property tax and electricity bills to the concerned departments does not legalize the illegal construction of the plaintiffs.
11.It is further submitted that the allegations of the plaintifs that the
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defendant officials interfered and tried to demolish the suit property on 4.4.2016, that the notice U/s.685 of HMC Act is not necessary, that the action of the defendant officials is illegal, arbitrary and malafide etc are all false and denied and the plaintiffs are put to strict proof of the same and it is submitted that the defendant officials never tried to demolish the suit property at any point of time much less on the date alleged by the plaintiffs.
The plaintiffs have filed the suit without issuing the notice u/s.685 of HMC
Act and therefore the suit is liable to be dismissed. It is further submitted that the plaintiffs have made such allegations against this defendnat only to create false cause of action to file the suit in order to obtain some interim order to protect the illegal construction. Therefore the plaintiffs are not entitled for any kind of relief from this court against the defendant. Hence prays to dismiss the suit.
12.The defendant No.2 and 3 were impleaded as per order in
CRP.No.2391/2017 dated 3.10.2017.
13. The brief averments of the written statement filed under Order
VIII Rule 6, together with counter claim under Order VIII Rule 6 (A)
on behalf of the Defendant No.2 and 3 are as follows:
The Defendant No.1 submits that the suit is neither tenable either in law or on facts. The plaintiffs with malafide intention of harassing are blackmailing these defendant by filing the above suit with all false allegations.
14.The defendants denied that, the plaintiffs are the absolute owners and possessors of the Portion of the House property in Premises bearing
Municipal No.15-6-613 613/1 to 6, 614, 614/1 & 2 , 615/6, 618 & 619, admeasuring 8385 square feet together with undivided share of 212 square yards out of 488 square yards, situated at Feelkhana, Begum Bazar,
Hyderabad having obtained the same through Registered Partition Deed
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dated 24.12.2014 vide document No.3114/2014 with existing Basement,
Ground and 4 upper floors. It is further submitted that in the said partition deed executed behind back of these Defendant No.2 & 3 by the plaintiffs and unofficial Defendant G.Dayanand and others, these defendant’s name and their property is mentioned in the said property in the said deed of partition. It is further submitted that portion of the suit property has been constructed by the vendors of the plaintiffs by obtaining permission and sanction vide permit No.3430/DC/SZ/Cir-5/2011 dated 4.7.2011 and Since the date of the above documents, they are in peaceful possession and enjoyment of the suit property without any interruption of any kind from any corner. They have filed the copies of the partition deed, two sanction plans and permit but Infact the plaintiffs are not possession of the suit schedule property and the plaintiffs and unofficial defendants, already had sold the shops under the new commercial complex Ground + four floors to the third parties and they are in possession of the suit schedule property. The plaintiffs filed this present suit having colluded with unofficial defendant
G.Dayanand Reddy and filed this present suit for the purpose to protect their illegal construction of commercial complex Ground + Four floors in premises bearing Municipal No. 15-6-613 613/1 to 6, 614, 614/1 & 2 , 615/6, 618 & 619, admeasuring 8385 square feet together with undivided share of 212 square yards out of 488 square yards, situated at Feelkhana, Begum Bazar,
Hyderabad. Infact, the vendor of the plaintiffs illegally constructed new commercial complex consisting of Ground + floors without having either sanction plan or permission sanctioned by the Defendant No.1.
15.The Defendant No.1 further submitted that recently the Telangana
State Government has issued GOMS.No.152/2015 dated 2.11.2015 for regularization of the unauthorized constructions and the constructions made in deviation to sanction plan rules and they have gone through the contents
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of the said GO and came to under stand that owners of the property constructed in deviations to the sanction plan or illegal constructions are liable to compulsorily make such application under the said scheme.
Accordingly, the plaintiffs and other owners of the complex have jointly made application to the defendant corporation as there are deviations and extra floors in the suit property vide Application No.2000061301 dated 31.12.2015 and the defendant corporation has acknowledged the receipt of the said application vide Receipt No.31122015074844 dated 31.12.2015.
The plaintiffs have paid the initial fees of Rs.10,000/- and enclosed all the relevant documents along with the said application but the same application is neither rejected nor granted and the same is pending with the defendant
No.1 corporation for consideration of its officials. The plaintiffs filed the copies of BPS acknowledgment along with the copy of Building Plan. Infact, these Defendants No.1 and 2 submit that during the pendency of the suit the Government of Telangana introduces a Building Regularization Scheme to regularize the Buildings which are constructed contrary to the sanctioned plan or without any permission and as per the said scheme the construction should be completed on or before 31.12.2014. In the said scheme they have also clearly stated that when there is a dispute in relation to the ownership then the building cannot be regularized. In the instant case these defendants have filed a suit in O.S.No.850/2013 before the Hon’ble XXV Additional Chief
Judge, City Civil Court, Hyderabad seeking a relief for mandatory injunction,
damages and restoration of possession. In the said suit they have specifically contended that the part of the property belongs to these defendants No.1 and 2 and their property involved in the suit schedule property. Even in the written statement filed by G.Dayanand Reddy and plaintiff No.1 in various suits, they admitted that the defendant No.1 and 2 purchased the property by way of registered sale deeds and there is no
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dispute in relation to the ownership. Once ownership has been admitted by the plaintiffs they cannot make an application for regularization without consent of the Defendants No.1 and 2. In this case the building was constructed under utter violation of relevant laws and a suit was also filed for regularization of the said building in the above matter. The illegal construction of new commercial building is liable to be demolished by the defendant No.1 in respect of suit property in premises bearing Municipal No.
15-6-613 613/1 to 6, 614, 614/1 & 2 , 615/6, 618 & 619, admeasuring 8385 square feet together with undivided share of 212 square yards out of 488 square yards, situated at Feelkhana, Begum Bazar, Hyderabad.
16.The suit property has been assessed by the defendant officials for property tax and they are regularly collecting the property tax in respect of the suit property and the property tax receipt/extracts are filed. The suit property is also provided with the electricity connection and the plaintiffs are being charged for the consumption of the Electricity by the APCPDCL as per the bills. The structures in the suit property are well within the boundaries of the suit property and there is no encroachment on any suit side of the suit property. It is further submitted the submissions made by the plaintiffs that the structures in the suit property are neither causing any inconvenience nor posing any kind of danger to any of the neighbour. Infact, assessed by the defendant officials for property tax and they are regularly collecting the property tax in respect of the suit property electricity connections do not support the plaintiffs to protect their illegal construction of the commercial complex Ground + four floors in the suit property.
17.The defendants No.1 and 2 absolutely denied the cause of action and stated that the cause of action shown by the plaintiffs herein is imaginary and is created for the purpose of this present suit, hence the suit is liable to be dismissed with exemplary costs.
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COUNTER CLAIM PRAYER :
This suit is filed seeking relief of Mandatory injunction directing the
Defendant No.1 take appropriate action by demolishing illegal construction i.e., new commercial building consisting of Ground +Four floors in the premises bearing Municipal No.15-6-613, 613/1 to 6, 614,614/1 & 2, 615,615/6, 618 & 619, admeasuring 8385 square feets together with undivided share of 212 square yards out of 488 square yards, situated at
Feelkhana, Begum Bazar, Siddiamber Bazaar, Hyderabad thereby dismissing the suit of the plaintiffs.
18. PARTICULARS OF THE COUNTER-CLAIM UNDER ORDER VIII RULE 6-A OF CPC
Facts of the counter claim :
The Defendants No.1 and 2 are the absolute owners and possessors of shop No.A of Door No.15-6-615 to 619 to an extent of 101 Sq.feet situated at
Siddiamber Bazaar, Begum Bazaar, Hyderabad. The same has been purchased from the 5th defendant by way of registered Doc.No.2074/2010
dated 29.11.2010. After purchasing the said property by G.Dayanand Reddy
who is the Defendant No.1 and plaintiff No.2 the Defendant No.1 and 2 in
O.S.NO.850/2013 on the file of the Hon’ble XXV Additional Chief Judge, City
Civil Court, Hyderabad at Hyderabad. That G.Dayanand Reddy is interested to construct a new commercial building by demolishing the existing structure of the suit schedule property and he has entered into an agreement with all other co-owners to that effect. Believing the same, the
Defendant No.2 and 3 entered into M.O.U and as per the M.O.U, G.Dayanand
Reddy has to complete the construction and hand over the same to the
Defendants No.2 and 3 within a period of 9 months from the date of MOU however, G.Dayanand Reddy failed to complete the construction, more so, he kept quiet by demolishing existing structures. G.Dayanand Reddy has to
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complete the construction within time and handed over the same, since D2 and D3 are asking out their livelihood by running small jewellery shop in the old premises but G.Dayanand Reddy never has taken into consideration the request of the defendants to complete the construction as per M.O.U. Hence, having left with no other option these defendants issued notice through telegram by terminating the M.O.U to G.Dayanand Reddy but, he received no response from him. It is submitted that, G.Dayanand Reddy also tried to attack these defendants by his henchmen, for which the defendant No.1 and 2 lodged a complaint before the S.H.O., Afzulgunj P.S., basing on which a crime No.277/2010 was registered and the same is pending before the
Criminal Court Nampally. Subsequently the defendant No.1 and 2 filed a Civil
Suit O.S.No.2209/2013 before the Hon’ble III Junior Civil Judge, City Civil
Court, Hyderabad for perpetual injunction restraining G.Dayanand Reddy not to interfere with the peaceful possession and enjoyment of the suit schedule property. G.Dayanand Reddy categorically admitted that he has demolished the old structure and he is constructing new shopping complex and the construction activity is under process and for supporting his averments, he also filed photographs to show the stage of the construction of commercial shopping complex in O.S.No.2209/2012 on the file of III Junior Civil Judge,
City Civil Court at Hyderabad.
19.Aggrieved by the new construction complex raised by G.Dayanand
Reddy, the Defendants No.1 and 2 made several complaints to the officials of the Def.No.1 and he stated that he is proceeding with the construction of huge building consisting of Ground + 4 upper floors without obtaining any permission from the competent authority for which the Defendant No.2 and 3 preferred a W.P.No.7458/2013 and the same was withdrawn due to the some procedural lapses. The defendants filed another W.P.No.14418/2013 seeking direction to the Defendant No.1 to initiate action against the illegal
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constructions and further a direction not to permit any construction in the subject land but the same is pending adjudication.
20.The defendant No.2 and 3 made an application to the Defendant No.1
dated 4.7.2014 under RTI Act seeking information whether G.Dayanand
Reddy, had permission to construct such a huge commercial complex building and in response to the said application, the defendant No.1 issued proceeding vide Lr.No.634/ACP/C5/SZ/GHMC/2014 dated 15.7.2014 informing that they have not granted any permission to the suit premises from 2010 to 2014. These defendants No.2 & 3 made another complaint dated 19.7.2014 requesting the Defendant No.1 authorities to take appropriate action against the illegal construction made by the 5th defendant in view of the specific admission by Defendants No.1 official vide their letter dt:15.7.2014, but the official defendant did not take any action on the complaint dt:3.9.2014 under
Right to Information Act, regarding the status of the action taken by them and in response to the same, the 2nd defendant issued another Letter vide
Lr.No.550/RTI/ACP/C5/SZ/GHMC/2014 dated 29.9.2014 stating that there is a suit in O.S.No.963/2013 filed on dt:7.5.2013 for which they also filed
Parawise remarks to the standing counsel of GHMC on 17.6.2013.
21.These Defendants No.1 and 2 filed a third party application before the
IV Junior Civil Judge, City Civil Court, Hyderabad for certified copies in
O.S.NO.963/2013 and to their utter surprise, the said suit was dismissed for
default on 23.1.2014, and though the said suit was dismissed, the defendant stated in their letter dt:29.9.2014 that the suit is still pending, this itself shows that the officials of the Defendant No.1 are colluded with the
G.Dayanand Reddy and the plaintiffs and they are not taking any action against the illegal construction for one reason or the other. It is the duty of the defendants to bring to this court’s notice that the 1st plaintiff in the suit was expired much before or filing the suit and other plaintiffs also sold their
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respective shares to G.Dayanand Reddy, in the year 2010 itself. The 1st plaintiff’s wife also sold her share of property to G.Dayanand Reddy and he is the person behind to file a suit with the persons who are no way related with the property.
22.The defendant No.1 and 2 submit that aggrieved by the action of the
Def.No.1 as they are not taking any action against the illegal construction, they filed a Writ petition before this court vide W.P.No.39418/2014 and after hearing the parties, this court was pleased to pass an order dt:23.12.2014 as “ Interim direction as prayed for”. Inspite of the directions of this court, the respondents failed to take appropriate action against the illegal construction made by G.Dayanand Reddy and others. Aggrieved by the said action of
Def.No.1, the Defendant No.2 and 3 preferred a C.C.No.587/2015 against
G.Dayanand Reddy and after filing the contempt case, he filed his a counter in the W.P.No.39418/2014 before this court and prays to dispose of the W.P.
leaving open to the parties to contest in the suit. Aggrieved by the same, the petitioners filed a Writ Appeal No.871/2015 and this court was pleased to dismiss the said appeal by confirming the Single Judge’s Order in
O.SnO.1624/2014 is a similar one to O.S.No.963/2013 which is dismissed for
default and after filing the same, the unofficial respondents filed
O.S.No.1624/2014 and obtained status quo orders.
23.These defendants No.1 and 2 submit that, after knowing about the filing of implead petition in o.S.No.1624/2014, the same was dismissed and the defendants No.1 and 2 preferred a C.R.P No.4879 of 2015 initially this court was pleased to order notice and after receiving the notices, the unofficial defendant made an application before this court to send the matter before National Lok Adalat. At this juncture they filed a Misc. petition to bring the issue before this court, upon which this court has recorded the same. It is further submitted, the plaintiff who are in O.S.No.1624/2014
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withdrew the suit on 4.4.2016. it is also relevant to mention here that in the said suit also the GHMC officials filed a written statement stating that no permission was accorded to the said new commercial building.
24.These defendants No.1 and 2 submitted that during the pendency of the suit the Government of Telangana introduced a Building Regularization
Scheme to regularize the buildings which are constructed contrary to the sanctioned plan or without any permission. As per the said scheme, the construction should be completed on or before 31.12.2014 and in the said scheme they have also clearly stated that when there is a dispute in relation to the ownership then that building cannot be regularized. In the instant case, these defendants have filed a suit vide O.S.No.850/2013 before the
Hon’ble XXV Additional Chief Judge, City Civil Court, Hyderabad seeking a
relief of mandatory injunction, damages and restoration of possession. In the said suit they have specifically contended that the part of the property belongs to these Def.No.1 and 2 is involved in the suit schedule property.
Even in the written statement filed by G.Dayanand Reddy and plaintiff No.1 in various suits, they admitted that the Defendant No.1 and 2 purchased the property by way of registered sale deeds and there is no dispute in relation to the ownership. Once ownership has been admitted by the plaintiffs, they cannot make an application for regularization without consent of the
Defendants No.1 and 2. In this case, the building was constructed with utter violation of relevant laws and a suit was also filed for regularization of the said building.
25.The plaintiffs have approached the court with unclean hands and are hiding the real facts. Literally the unofficial defendants played fraud upon the courts and obtained Status Quo orders and dragged the matter for considerable time. The conduct of the unofficial defendant clearly shows that they have utter dis respect on the courts and its orders. In the present case
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they filed a suit in O.S.No.963/2013 and obtained Status Quo on the ground that the building was an old construction and in O.S.No.963/2013, the defendant remained exparte. Again in the year 2014 they filed
O.S.No.1624/2014 and approached this court for not taking any action
against the illegal construction and they revealed about the filing of the suit and status quo orders. When they approached this court by way of
C.R.P.No.4879/2015 they withdrew the same. This itself shows that the unofficial defendant is misusing the process of law and played fraud upon the courts.
26.That O.S.No.1624/2014 was filed by the defendant and others on 11.9.2014 seeking injunction against GHMC on the ground that GHMC officials are interfering with the repairing works to the old building which was constructed as per the plan dt:28.9.1989 and also filed a counter in
W.P.No.39418 of 2014 on 27.7.2015 stating that they had constructed the building as per the sanction plan. The very same respondent filed written statement in O.S.No.2209/2012 on 18.11.2015 stating that the building was a new construction.
27.It is submitted that the subject building is constructed cellar + Ground + 4 upper floors without obtaining any sanctioned plan from the authorities concerned, even assuming the building is constructed as per sanctioned plan, there is only 10 feet wide road existing in front of the building i.e.,
Northern side and there is 2 ½ feet road in Western side. The other two sides neighbour’s building is comprising four upper floors without obtaining any permission. It is submitted that the said locality is heavy crowded business area and if any, unwarranted incident like fire takes place, the consequences would be unimaginable. There is no way to enter even in case of fire by adopting illegal methods. If this court does not direct the defendant No.1 to demolish the building, the petitioners would be put to great hardship and
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irreparable loss.
28.The defendant No.1 and 2 have no efficacious alternative remedy, except to approach this court to demolish the suit poperty.
29.That the counter claim is being filed questioning the action of the official of the Def.No.1 herein not taking action against the illegal constructions of new commercial complex made by the plaintiffs though dismissal of the O.S.No.963/2013 and O.S.No.1624/2014 as illegal, arbitrary, malafidly and violation of GHMC. Subsequently, dismissal of the both suit, the plaintiffs have filed this suit hidden real facts.
30.It is therefore prayed before this court to grant Mandatory injunction against the Def.No.l to demolish the suit schedule property against the illegal construction in respect of premises No.15-6-615 to 619 situated at
Siddiamber Bazaar, Hyderabad made by the plaintiffs unofficial defendant without any sanction plan as illegal, arbitrary, malafide and contrary to the
GHMC Act consequently direct the Defendant No.1 to take appropriate steps.
31. WRITTEN STATEMENT OF THE DEFENDANT NO.1 TO THE
COUNTER CLAIM FILED BY THE DEFENDANT NO.2 AND 3
The answering Defendant submits that the GHMC is not party in
O.S.No.850/2013 and Crime No.277/2010 and O.S.No.2209/2013 and as such
it is unable to answer specifically as to the allegations made and the Def.2 and 3 are put to strict proof.
32.The answering Defendant submits that filing of writ petitions from time to time by Def.No.2 and 3 is matter of court record. And presently writ petition No.14418/2013 is pending before the Hon’ble High Court for hearing.
33.The answering Defendant submits that filing of application by Def.No.2 and 3 under RTI and giving reply by the GHMC is matter of record. Allegation of the Def.No.2 and 3 that they have given complaint dated 19.7.2014 to the
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GHMC and that no action is taken by it is not correct and hereby denied and during the time of the complaints made by Def.No.2 and 3 there were civil suits pending against the GHMC and in most of the suits there was order of injunction restraining the GHMC from interfering with the property of the plaintiffs and other.
34.The answering Defendant submits that the allegations made therein are hereby denied and the defendant No.2 and 3 are put to strict proof. As submitted earlier from time to time there was order of injunction against
GHMC and because of the same the matter could not be proceeded further.
35.The answering Defendant submits that most of the allegations made therein are matter of court record and do not call for any reply. The answering Defendant denies that the contents of the plaint in
O.S.No.1624/2014 is similar to the contents of the plant in O.S.No.963/2013.
36.The answering Defendant submits that the allegations made therein are matter of court record and do not call for any reply. The answering
Defendant submits that the plaintiffs have moved application under building regularization scheme and the said application is pending because the subject matter of the scheme is before the Hon’ble High Court and the
Def.No.2 and 3 did not read the building regularization scheme properly and they cannot read the scheme to their discretion. The answering Defendant submits that since it is not party to O.S.No.850/2013 it is not in a position to traverse the allegations and the Def.No.2 and 3 are put to strict proof.
37.The answering Defendant submits that it for the GHMC to examine the issue in relation to the so called construction of the complex, size of the road, etc. The answering Defendant submits that it is well aware about its duty and responsibility and the Def.No.2 and 3 need not teach. The plaintiffs and other have invoked the building regularization scheme and have submitted required papers in terms of the scheme. That since the
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regularization scheme is the subject matter before the Hon’ble High Court every activity in terms of the said scheme is stalled. The answering
Defendant submits that as and when the Hon’ble High Court gives clarity in the matter the answering defendant shall proceed accordingly.
38.The answering Defendant submits that Def.No.2 and 3 have filed writ petition No.14418/2013 against the GHMC and others. The main relief that is sought in the writ petition is the subject matter of the counter claim. Since the Def.No.2 and 3 have invoked the jurisdiction of the Hon’ble High Court in respect of the relief sought in this counter claim, the counter claim as filed is not maintainable and has to be dismissed. The def.No.2 and 3 are trying to mislead this court. The subject matter of writ petition i.e., the property involved therein is similar to the property as referred and pleaded in the counter claim and in the writ petition the main relief is sought against the corporation and in the counter claim also the main relief is sought against the corporation. That there cannot be double jeopardy and the Def.No.2 and 3 cannot maintain the counter claim as the same is vexatious. The answering defendant further denies that since the writ petition is pending for adjudication the counter claim be proceeded further.
39.The answering Defendant submits Def.No.2 and 3 cannot maintain a counter claim and seek mandatory injunction in view of the pendency of the writ petition and the counter claim is liable to be dismissed.
40. The answering Defendant submits that whether the building is liable to be demolished or not shall be examined by the corporation after necessary orders are passed by the Hon’ble High Court in the litigation regarding the regularisation scheme.
41. The answering Defendant submits that since the W.P.No.14418/2013 is pending before the Hon’ble High Court, the counter claim is liable to be dismissed. The answering Defendant further submits that a novel method is
19 O.S.NO.870/2016
adopted by the Def.No.2 and 3 in initiating litigation after litigation.
42. The answering Defendant submits when counter claim itself is not maintainable question of filing of counter claim within limitation does not arise.
43. The answering Defendant submits that the def.No.2 and 3 have no cause to file this counter claim and the valuation made and court fees paid is improper and since the counter claim is not maintainable no relief can be granted to def.No.2 and 3 and the counter claim is liable to be dismissed.
44. WRITTEN STATEMENT OF THE PLAINTIFFS TO THE COUNTER
CLAIM OF THE DEFENDANT NO.2 AND 3
The plaintiffs submit that the Def.No.2 and 3 have been impleaded as per the Orders dated 2.10.2017 passed in C.R.P.No.2391/2017 on the file of the Hon’ble High Court of Judicature at Hyderabad. They are arrayed as
Def.No.2 and 3 in the suit, mischievously in the counter claim filed by them they are referring themselves as Def.no.1 and 2. The plaintiffs reserve their right to file additional written statement as and when the defendant No.2 and 3 seek amendment to the counter claim.
45.The plaintiffs submit that one Sri.G.Dayanand Reddy has executed and registered the sale deed in respect of portion of Shop No.A in cellar floor admeasuring 101 square feet out of 416.8 square feet including common areas together with undivided share of land measuring 1.8 sq.yard yards in premises bearing Municipal No.15-6-615 to 15-6-619, situated at Begum bazar, Siddiamber bazar, Hyderabad under a registered sale deed bearing
Doc.No.2074/2010, registered in the office of the Sub-Registrar, Doodhbowli on 29.11.2010. That after purchase of the property by Def.No.2 and 3 they have entered into a memorandum of understanding with G.Dayanand Reddy is matter of record. The said memorandum of understanding dated 29.11.2010 was subject matter of Civil Revision Petition in
20 O.S.NO.870/2016
C.R.P.No.3186/2016 wherein the Hon’ble High Court has observed that the said MOU can be admitted in evidence for limited purpose of proving possession but not for any other purpose. That reference by Def.No.2 and 3 with regard to the said MOU is of no relevance in view of the order passed by the Hon’ble High Court. That Def.No.2 was doing polishing work of gold and silver articles and Def.No.3 was doing business with a meager turnover. The issuance of telegram by the Def.No.2 and 3 are only for self serving purposes and has no legal binding. Further allegation of the Def.No.2 and 3 that
G.Dayanand Reddy tried to attack these defendants and in this regard a complaint was registered with Crime No.277/2010 and the same is pending
before the Criminal Court Nampally is not correct and hereby denied and the
Def.No.2 and 3 are put to strict proof and they submit that out of malafide intentions and oblique motives Def.No.2 and 3 have filed suit
O.S.No.2209/2013 on the file of III JCJ, CCC, Hyderabad for perpetual
injunction against G.Dayanand Reddy and the same was dismissed on contest.
46.The plaintiffs for want of knowledge deny that the Def.No.2 and 3 made several complaints against G.Dayanand Reddy to the officials of
Def.No.1 with regard to the constructions and the Def.No.2 and 3 are put to strict proof.Plaintiffs for want of knowledge deny that Def.No.2 and 3 filed
W.P.No.7458/2013 and the same was withdrawn due to some procedural lapses and the def.No.2 and 3 are put to strict proof. Further allegation of the
Def.No.2 and 3 that they have filed another W.P.No.14418/2013 and the said writ petition is pending and the Def.No.2 and 3 are put to strict proof. Since they are not parties to the suit writ petition they are unaware about the same. The conduct and attitude of the Def.No.2 and 3 is malafide and that they want to harass G.Dayanand Reddy by filing frivolous cases against him.
47.The plaintiffs for want of knowledge deny that Def.No.2 and 3 have
21 O.S.NO.870/2016
made application to Def.No.1 seeking information with regard to the permission obtained by G.Dayanand Reddy and the Def.No.1 informing that they have not granted any permission from 2010 to 2014 and the Def.No.2 and 3 are put to strict proof, further allegations of the Def.No.2 and 3 that they have made another complaint on 19.7.2014 to the Def.No.1 against the alleged illegal construction but Def.No.1 did not take any action and further def.No.1 gave letter dated 29.9.2014 that there is a suit O.S.NO.963/2013 is denied.
48.The plaintiffs for want of knowledge deny that Def.No.2 and 3 have filed third party petition in O.S.No.963/2013. Plaintiffs for want of knowledge further deny that the said suit was dismissed on 23.1.2014 but the Def.No.1 in their letter dated 29.9.2014 stated that the said suit is still pending.
Allegation of the Def.No.2 and 3 that the officials of Def.No.1 are in collusion with G.Dayanand Reddy and plaintiffs and they have not taken any action against the so called illegal constructions for one reason or the other is not correct. Further allegation of the Def.No.2 and 3 that the Defendants ought to have brought to the notice of the court about the death of the plaintiff
No.1 in the said suit who expired much before filing of the said suit is not correct and hereby denied. Plaintiffs for want of knowledge deny that plaintiffs and wife of Plaintiff No.1 in O.S.No.963/2013 have sold their respective share to G.Dayanand Reddy in the year 2010. Allegation of the
Def.No.2 and 3 that the said persons are nowhere related with the property is also denied.
49.Plaintiffs for want of knowledge deny that the Def.No.2 and 3 have filed another W.P.No.39418/2014 against the Municipal Corporation of
Hyderabad. Plaintiffs for want of knowledge further deny that the Hon’ble
High Court on 23.12.2014 was pleased to pass interim direction against the
Municipal Corporation and that inspite of the same the Corporation has
22 O.S.NO.870/2016
failed to take action against the constructions made by G.Dayanand Reddy and others. Since they are not parties to the said writ petition they are unaware as to the filing of the said writ petition and its status. The plaintiffs for want of knowledge further deny that they have preferred C.Cno.587/2015 against G.Dayanand Reddy and after filing of the said contempt case the said G.Dayanand Reddy filed his counter in the said writ petition. Further allegations of the Def.No.2 and 3 that the said writ petition was disposed by observing that the parties to contest the suit is hereby denied. Plaintiffs for want of knowledge deny that the Defendant No.2 and 3 aggrieved by the dismissal of the writ petition have filed W.A.No.871/2015 and the same was dismissed confirming the order passed in the writ petition.
50.Plaintiffs for want of knowledge deny that the Def.No.2 and 3 have filed impleading petition in O.S.NO.1624/2014 and the same was dismissed and against which the defendant No.2 and 3 have preferred C.R.P. The plaintiffs submit that since they are not parties to the said litigation, they are unaware as to what has transpired in the said suit.
51.Plaintiffs submit that the introduction of building penalization scheme and the contents of the said scheme by the GHMC is matter of record.
Further allegation that the Defendant No.2 and 3 have filed suit
O.S.No.850/2013 on the file of the XXV Additional Chief Judge, City Civil
Court, Hyderabad, seeking relief of mandatory injunction, restoration of possession and damages is matter of court record. The contentions of the
Def.No.2 and 3 and G.Dayanand Reddy in the said suit is matter of court record. Allegation of the Defendant No.2 and 3 that once the ownership of the Def.No.2 and 3 is admitted, the plaintiffs cannot make application for regularization without their consent is not correct and hereby denied. That the Def.No.2 and 3 were the owners of undivided share of land measuring 1.8 square yards and Def.No.2 and 3 have also got their names mutated in
23 O.S.NO.870/2016
respect of the mulgi in the constructed portion in the municipal records. That
Def.No.2 and 3 cannot dictate terms as to the procedure to be followed. That since the owners of the property have made constructions in deviation of the sanction plan, plaintiffs and other owners of the property have made application to the Municipal Corporation for getting it regularized.
52.Plaintiffs deny that they have approached this court with unclean hands by hiding the real facts. That in most of the litigation referred above they are not parties as such question of hiding facts does not arise.
Allegation of the Def.No.2 and 3 that the so called unofficial defendants played fraud upon the court and obtained orders of status quo and have dragged the matter for considerable time is not correct and hereby denied.
The plaintiffs are hereby advised that upon satisfaction of the court with regard to three cardinal principles for grant of temporary injunction, the court from time to time has passed orders and the Def.No.2 and 3 does not have any right to make comments on the same. Further allegation of the
Def.No.2 and 3 that the conduct of un official defendants clearly shows that they have disrespect to the courts and to the orders passed by the courts are denied. The Hon’ble courts in the applications filed in O.S.No.963/2013 and O.S.No.1624/2014 have passed orders from time to time and Def.No.1 was bound by the said orders. Allegation of the Def.No.2 and 3 that Def.No.1 has not taken any action against the so called illegal constructions is not correct and denied. It is submitted that Def.no.1 is bound by the order passed by the court from time to time. The plaintiffs for want of knowledge deny that when Def.No.2 and 3 herein approached the Hon’ble High Court by filing CRP.No.4879/2015 the suits were withdrawn.
53.The plaintiffs deny the entire contents of the said paragraphs as they are not parties to any of the litigations referred therein.
54.The plaintiffs submit that the constructed building standing on the site
24 O.S.NO.870/2016
is matter of record. The def.No.2 and 3 cannot dictate terms to the corporation as the authorities are very much aware about the existing law as and also about the building regularization/ penalization scheme floated by the Telangana Government. That the Def.No.2 and 3 out of malafide intentions have filed this counter claim seeking demolition of the building. In respect of the extra constructions made in the property, they have applied for getting it regularized under the G.O. passed by the Telangana
Government. Plaintiffs are advised to submit that since the G.O passed by the Telangana Government is subject matter before the Hon’ble High Court, the entire process of regularization has been stalled presently. That Def.No.2 and 3 have no right to seek mandatory injunction against the corporation.
That application for regularization of illegal constructions in the property is still pending with the defendant No.1 and the defendant is bound to act in terms of the Building regularization scheme issued by the Government of
Telangana as per G.O. Ms.NO.152/2015.
55.The Def.No.2 and 3 have already invoked the jurisdiction of the Hon’ble
High Court by filing writ petitions and in view of the same it cannot be said that the Def.No.2 and 3 have no efficacious remedy except to approach this court.
56.The Def.No.2 and 3 have no right to question the action of Def.No.1 in not taking action as Def.No.2 and 3 have already filed writ petitions against
Def.No.1 also. There cannot be double jeopardy. That earlier the plaintiffs are not parties to O.S.No.963/2013 and O.S.NO.1624/2014 as such question of plaintiffs hiding the real facts is out of question. IN fact The Def.No.2 and 3 have suppressed many facts before this court and are trying to obtain orders without revealing the correct facts.
57.The Def.No.2 and 3 are not entitled for the relief of mandatory injunction. That pending disposal of the application of regularization of the
25 O.S.NO.870/2016
construction, Def.No.2 and 3 cannot seek any reliefs from this court. That the regularization and penalization scheme was introduced by Telangana
Government keeping in view the mass constructions in various zones in view of the urbanization. Property of the plaintiffs is not separate and is part of the building where there are many owners and rights and interests of such owners are also involved. That all of them have invested huge money. The
Def.No.2 and 3 are practically not doing any business and they have adopted unique ways of extracting money. The course adopted by the Def.No.2 and 3 is deplorable. Plaintiff submit that any order passed by this court will affect the rights and interest of many individuals. That since the Def.No.2 and 3 have already invoked the jurisdiction of the Hon’ble High Court by filing writ petition against the Municipal Corporation and others, the Def.No.2 and 3 are not entitled for any relief claimed by them.
58.The Def.No.2 and 3 have filed O.S.No.850/2013 seeking relief of damages, perpetual and mandatory injunction. The Def.No.2 and 3 have sought relief of mandatory injunction by seeking restoration of the property purchased by them and the learned XXV Additional Chief Judge, City Civil
Court, Hyderabad has disallowed the relief of mandatory injunction. The
Def.No.2 and 3 have sought compensation in not completing the complex within time and the court has awarded an amount of Rs.5,00,000/- as damages to the Def.No.2 and 3. The Def.No.2 and 3 simultaneously cannot seek two reliefs in two separate litigations i.e., one for damages for delay in construction and another for demolition of construction.
59.The Def.No.2 and 3 cannot maintain a counter claim as they have already invoked the jurisdiction of Hon’ble High Court, question of filing the counter claim within period of limitation is out of question.
60.The Def.No.2 and 3 have no cause to file the present counter claim on any of the dates as mentioned in paragraph.
26 O.S.NO.870/2016
61.The Def.No.2 and 3 have grossly undervalued the counter claim and have paid a meager court fees of Rs.1586/-. That the advantage which the
Def.No.2 and 3 are trying to take should be the basis for making calculation for payment of court fees. The counter claim is liable to be rejected on the ground of undervaluing the relief and paying a paltry court fees.
62.Plaintiff further submits that in respect of the premises bearing
Municipal No. No.15-6-613,613/1 to 6, 614,614/1 & 2, 615,615/6, 618 & 619, admeasuring 8385 square feets together with undivided share of 212 square yards out of 488 square yards, Def.No.2 and 3 cannot seek relief of mandatory injunction for demolition of constructed area which is scattered on different corners of the building with undivided share. That apart from them there are many other persons who are the owners of the property and the counter claim as filed by Def.No.2 and 3 cannot be maintained without joining all the owners of the property. That the counter claim of the Def.No.2 and 3 is liable to be dismissed on the ground of non joinder of proper and necessary parties. The way in which the counter claim is filed clearly goes to show the malafide intentions of the Def.No.2 and 3. The Def.No.2 and 3 are not entitled for any of the reliefs as sought by them and the counter claim is liable to be dismissed.
63.Based on the draft issues filed by the defendants No.2 and 3, plaint, written statement, counter-claim filed by the defendants No.2 and 3, written statement of the defendant No.1 to the counter claim filed by the defendants No.2 and 3 and written statement filed by the plaintiffs to the counter claim of the defendants No.2 and 3 the following issues are framed for trial:
1. Whether the plaintiff is entitled for perpetual injunction against the defendant No.1 as prayed for?
2. Whether the suit is maintainable without issuing mandatory notice
27 O.S.NO.870/2016
under section 685 of G.H.M.C Act,1955 ?
3. Whether the mandatory injunction can be granted against defendant
No.1 as prayed for by the defendants No.2 and 3?
4. To what relief ?
64.To substantiate the case of the plaintiff, the 4th plaintiff has filed his chief affidavit as PW1 and was examined as PW1 and through PW1 Exs.A1 to
A4 were marked and on behalf of defendant Corporation DW1 and 2 were examined through DW2, Exs.B3 to B17 were marked.
65.Heard both sides. Perused the material placed the record.
66. ISSUE NO.1 and 3 :-
It is the case of the plaintiffs that they are absolute owners and possessors of the suit schedule property, for which they have obtained permission from GHMC for construction of ground + 1st floor. It is submitted by the plaintiffs that they have raised their construction in deviation to the sanction plan and raised construction of basement, ground and 4 upper floors which is an unauthorized construction. It is the contention that the plaintiff along with other owners of the complex have jointly made application to the corporation on 31.12.2015 for regularisation of their construction and while the said application was pending, the defendant No.1 along with their officials suddently visited the premises and are trying to demolish the structures without issuing anynotice to the plaintiffs. Hence the suit is filed by the plaintiffs without issuing a mandatory notice under
Section.685 of HMC Act to GHMC.
67.It is the case of the Defendant No.1 that as admitted by the plaintiff, the constructions raised by them in the suit schedule premises is in deviation to the sanctioned plan and it is an unauthorised construction. It is submitted that though they have made an application for regularization of unauthorised construction. It is submitted that the Division Bench of Hon’ble
28 O.S.NO.870/2016
High Court have granted stay of disposal of BRS appliation due to which the defendant officials are not in a position to dispose the application of the plaintiffs at this stage. It is submitted that the plaintiffs failed to issue notice to GHMC under Section. 685 of HMC Act before filing the present suit and further stated that the allegations made against them that they are trying to demolish the suit schedule property is totally false and it is submitted that the plaintiffs approached the court with unclean hands. Hence it is prayed to dismiss the suit.
68.It is the case of the defendants No.2 and 3 that the plaintiffs are not owners of the suit schedule property and they have illegally raised unauthorized constructions in the suit schedule property in deviation to the permission granted by GHMC by raising ground + 4 floors. It is the contention of the Def.No.2 and 3 that they are owners in respect of part of the suit schedule property, but their concern was never obtained by the plaintiffs in making applications for regularization before the GHMC. It is their contention that the illegal construction raised by the plaintiffs is liable to be demolished by the defendant No.1 and the plaintiffs are not entitled to the relief of perpetual injunction. Hence it is prayed to dismiss the suit.
69.The 4th plaintiff has filed his chief affidavit as PW1 where Ex.A1 is the
Certified copy of deed of partition bearing Document No.3114/2014, dated 24.12.2014. Ex.A2 is the Certified copy of Statement of Encumbrance on property for the period from 1.1.1995 to 20.5.2015. Ex.A3 is the original property tax receipts (13 in number). Ex.A4 is the original electricity bill cum notice (3 in number). During his cross examination, PW1 stated that the suit is filed against defendant No.1, as the defendant No.1 came to the suit schedule property for demolition. PW1 stated that when the defendant No.1 came to the schedule property he was in the shop which is beside the suit schedule property. He stated that he does not remember the house number
29 O.S.NO.870/2016
of the suit schedule property and himself, Athmaram Illani, Lakshmi Devi,
Bharath Kumar, Shalu Devi, Jaya, Laveena are the owners of the suit schedule property. He stated that he studied upto B.Com and later he left pursuing LLB in the middle. He stated that One Mr. Dayanand Reddy is a partner and also builder and he has good acquaintance and cordial relationship with Sri.Dayanand Reddy even as on today. He admitted that
Sri.Dayanand Reddy applied for permission for construction of Ground and first floor in the suit schedule property vide permit No.3430/DC/SZ/Cir- 5/2011 and obtained another permission also vide permit No.260/35, dated 28-09-1989. He stated that they have paid Rs.10,000/- to the defendant
No.1 for regularization of the suit schedule property and further stated that he has no idea whether Sri.Dayanand Reddy (builder and developer) has filed two suits or not. He admitted that he has not filed any document before this court regarding regularization. He stated that Sri. Raveen Kumar and
G.S.Mallikarjun are present in the court and that his relationship with the defendants No.2 and 3 are cordial. He stated that he does not remember whether the defendants No.2 and 3 have shops or not in the suit schedule property. He admitted that Sri. Dayanand Reddy has given one mulgi to defendants No.2 and 3 and that he has no idea whether the development agreement entered between him and Sri.Dayanand Reddy has been filed
before this court or not along with the sanction plan and the permission.
70.PW1 stated that the portion of his share is given on lease to others and that the property is still not mutated in their names. He stated that he has no idea whether defendants No.2 and 3 have given complaints with regard to the suit schedule property or not. He stated that as the construction is illegal, they have applied for BRS. He stated that the defendant officials came to the suit schedule property on 04-03-2016 and also stated that his entire family knows regarding the suit which is pending before this court. He
30 O.S.NO.870/2016
stated that he has not given mandatory notice under section 685 of GHMC
Act, 1955 to the defendant No.1 prior to the institution of the suit. He denied to the suggestion that he filed a false suit against the defendant No.1.
71. DW1 evidence was echewed
Defendant No.3 was examined as DW2 and Ex.B3 to Ex.B17 were marked in support of his case where Ex.B3 is the Certified Copy of the sale deed document bearing No. 2074/2010 executed by G. Dayanand Reddy in favour of defendant no.2 & 3 along with cash receipt dated 29-11-2010
Ex-B4: Certified copy of the M.O.U executed between impleading petitioner and G. Dayanand Reddy, dated 29-11-2010. Ex-B5: Certified copy of the photos filed by G. Dayanand Reddy I.A. NO. 930/2012 in O.S.No. 2209/2012 on the file of III Junior Civil Judge, City Civil Court, Hyderabad, dated 17-10- 2012. Ex-B6: Ceritifed copy of the third party (7) affidavit filed by Laveena & other in OS.No. 2209/2012 on the file of the III Junior Civil Judge, City Civil
Court, Hyderabad dated 17-10-2012. Ex-B7: Certified copy of the Plaint in
OS.No. 850/2013 on the file of Hon’ble XXV Addtional Chief Judge, City Civil
Court, Hyderabad the suit filed by Defendant no. 2 & 3.Ex-B8: Certified copy of Plaint in OS.NO. 963/2013 on the file of Hon’ble IV Junior Civil Judge,
City Civil Court, Hyderabad, dated 06-05-2013.Ex-B9: Certified copy of
Written statement filed by GHMC in OS.No. 963/2013 on the file of the
Hon’ble IV Junior Civil Judge, City Civil Court, Hyderabad, dated 28-06-
2013.Ex-B10: Certified copy of Judgement in OS.No. 963/2013 on the file of the Hon’ble IV Junior Civil Judge, City Civil Court, Hyderabad. Ex-B11:
Certified copy of the plaint in OS.No. 1624/2014 on the file of Hon’ble VI
Junior Civil Judge, City Civil Court, Hyderabad dated 11-09-2014.Ex-B12:
Certified copy of the written statement in Os.No. 1624/2014 on the file of
Hon’ble VI Junior Civil Judge, City Civil Court, Hyderabad dated 15-06-
2015.Ex-B13: Certified copy of the counter filed by G. Dayanand Reddy in
31 O.S.NO.870/2016
W.V.M.P. No. 2640 of 2015 in W.P. NO. 39418 of 2014.Ex-B14: Original Copy of the Hon’ble High Court in CRP No. 4879/2015 (OS.No. 1624/2014) dated 16-3-2015.Ex-B15: Original copy of the order passed in CRP No. 2391/2017,
dated 03-10-2017.Ex-B16: Certified Copy of the order passed in WP.MP. No
in WP 23305 of 2016 in WP.NO. 18999/2016, dated 10-08-2016. Ex-B17:
Certified copy of the order passed by the Hon’ble High Court in W.P. M.P. No.
34585 of 2016 in W.P. 18999 of 2016, dated 22-08-2016.
72.During his cross examination, he stated that his qualification is B.A.,
L.L.B., and he studied in English Medium. He stated that, till November 2010, he was doing gold business in the name and style of Saveen Jewellers and he denied that even as on today he is doing the same business. He stated that he got enrolled as an advocate in October, 2018 and he did not obtain permission from bar Counsel of Telangana for carrying on business. He stated that he is not doing any business and denied that his above statement is false. He stated that one G.Dayanand Reddy executed a sale deed in respect of portion of Shop No.A in Cellar floor measuring 101 Sq.ft.
With undivided share of 1.8 Sq.feet in Premises No.15-6-615 to 619,
Siddiamber Bazar, Hyderabad under register Doc.No.2074/2010 in favour of
Def.No.2 and 3. He stated that himself and Def.No.2 have entered into an
MOU dated 29.11.2010 with G.Dayanand Reddy and that the said MOU is subject matter of CRP.No.3186/2016 in which the Hon’ble High Court was pleased to observe that the above MOU can be admitted in evidence for limited purpose of proving possession and not for any other purposes. He stated that he is not doing any business since November, 2010. He denied to the suggestion that there is no case with Cr.No.277/2010 and later stated that the number is Cr.No.277/2012. He stated that he did not get the document in the above crime number marked in the evidence before this court. He denied to the suggestion that himself and defendant No.2 out of
32 O.S.NO.870/2016
malafide intention have filed the suit O.S.No.2209/2012 against G.Dayanand
Reddy. He stated that O.S.No.2209/2012 was dismised on contest and further stated that he has filed a writ petition No.14418/2013 before the
Hon’ble High Court seeking direction to be given to GHMC to initiate action
in respect of the construction covered by the property bearing No.15-6-615 to 15-6-619 Siddiamber Bazar, Hyderabad. He stated that he has filed counter claim in the present suit with the same property number which is subject matter of W.P.No.14418/2013. He stated that W.P.No.14418/2013 is filed prior to filing the counter claim and further stated that in suit
O.S.963/2013 before IV JCJ, City Civil Court, Hyderabad, the plaintiffs are not
party. He stated that the subject matter of the present suit is part of
O.S.No.963/2013 and Ex.B10 is not binding on the plaintiffs. He stated that
in W.P.No.39418/2014, the plaintiffs are party but they are not party to contempt case No.587/2015, W.A.No.871/2015 and O.S.No.1624/2014 on the file of VI JCJ, CCC, Hyderabad. He stated that he does not know whether defendant No.1 introduced BRS Scheme and denied to the suggestion that he is well aware about the BRS scheme introduced by GHMC and he is denying the same intentionally. He stated that he has gone through the judgment passed in O.S.No.850/2013 on the file of Hon’ble XXV Additional
Chief Judge, City Civil Court, Hyderabad and the reliefs sought by him in the suit are Mandatory Injunction, Perpetual injunction and damages. He denied to the suggestion that the relief sought by him was dismissed by the court.
He stated that the suit was partly decreed. He stated that Ex.A5 (marked on confrontation to the witness) is the Judgment passed in O.S.No.850/2013. He stated that apart from the relief claimed in respect of damages, the other reliefs sought by him are dismissed. He stated that he preferred an appeal against the above judgment in the Hon’ble High Court and the same is pending. He stated that he does not know whether the plaintiffs made an
33 O.S.NO.870/2016
application for BRS scheme before Def.No.1. He stated that he has mentioned in para No.14 that without the consent of his brother and himself, the plaintiff cannot make an application for regularization. He stated that himself and his brother did not get their names mutated in the municipal records in respect of the mulgi. He stated that the plaintiffs are not parties to any other suits or proceedings except for O.S.No.850/2013 and
W.P.No.18999/2016.
73.He stated that he does not know whether GHMC (Def.No.1) is bound by the orders passed in O.S.No.963/2013 on the file IV JCJ and
O.S.No.1624/2014 on the file of VI JCJ, CCC, Hyderabad from time to time. He
stated that he do not know whether the application made by the plaintiffs with regard to regularisation of construction under the penalisation scheme floated by the Telangana Government is subject matter before the Hon’ble
High Court as such the regularisation is stalled. He denied to the suggestion that himself and Def.No.3 have no right to interfere with the plaintiff as the subject matter of the suit is pending before the Hon’ble High Court. He stated that Def.No.1 is bound to act in pursuant of the scheme of the
Government in respect of the regularisation of the plaintiffs firm. He stated that there are other co-owners in respect of the schedule property shown in counter claim filed by them. He stated that they have sought relief of mandatory injunction against GHMC in their counter claim. He stated that there is no relief sought by them against the plaintiff in their counter claim.
He admitted that he does not remember the relief sought by them against the plaintiff in their counter claim. He stated that a defendant cannot claim relief against co -defendant. He denied to the suggestion that as he has already filed W.P.No.14418/2013 against Def.No.1 for the relief of Mandatory injunction prior to filing of the counter claim, he is not entitled to again file counter claim against GHMC seeking the same relief. He denied to the
34 O.S.NO.870/2016
suggestion that only in order to extract money illegally from the plaintiff, he filed a false counter claim in the present suit.
74.He stated that his qualification is B.A., L.L.B., and he enrolled as an advocate in October, 2018. He admitted that in his chief affidavit, he mentioned his occupation as Business. He stated that he has not gone through the contents of the written statement filed by GHMC. He stated that he mentioned in para No.5 of his chief affidavit that the plaintiffs and other owners of the complex have jointly made application to defendant corporation vide application No.2000061301 dated 30.12.2015 and that he does not know whether GHMC could not take any action against the plaintiffs and other joint owners because their applications are pending before the
Hon’ble High Court. He stated that GHMC is not party to O.S.No.850/2013
filed by him before Hon’ble XXV Additional Chief Judge, City Civil Court,
Hyderabad. He stated that GHMC is not party in O.S.No.2209/2013 filed by them before the III Junior Civil Judge, City Civil Court, Hyderabad. That, present, the construction in the suit schedule premises is completed. He stated that GHMC has issued the documents applied by him through RTI. He stated that he is not a party to O.S.No.963/2013 and O.S.No.1624/2014.
75.In view of the oral and documentary evidence on record, it is an admitted fact by the plaintiffs that they have raised unauthorised constructions which is in deviation to the sanction given by Defendant No.1.
It is also admitted by the plaintiffs that their application is pending before
Defendant No.1 in which they have sought regularization of their construction. It is further admitted by the plaintiffs that they did not issue mandatory notice under Section. 685 of HMC Act to the defendants. Though the plaintiffs filed Ex.A1 to Ex.A4, it is an admitted fact that their BRS application is still pending before Defendnat No.1 and it is the version of
Defendant No.1 that the plaintiffs have made joint application along with
35 O.S.NO.870/2016
other co-owners of the suit schedule complex and their applications are still pending before Defendant No.1 as the Hon’ble High Court has granted stay on disposal of BRS applications. This goes to show that the constructions raised by the plaintiffs is still not legalized and is still identified as unauthorised construction.
Therefore, In the given circumstances, the plaintiffs are not entitled to seek relief of perpetual injunction in respect of the suit schedule property as prayed for.
76.Further, it is admitted by DW2 in his cross examination that they have not sought for any relief against the plaintiff and their prayer in the counter claim filed by them, they have prayed for mandatory injunction to be granted against defendant No.1 to demolish the suit schedule rpoperty as it pertains to illegal construction. It is clearly seen from the evidence of DW2 that there are several cases and writs pending before the Hon’ble High Court in respect of the suit schedule premises. Further, it is admitted that a writ vide WP.14418/13 was filed by them against Def.No.1 seeking a direction to be given to GHMC to initiate action in respect of the constructions made in the schedule property whis is filed prior to the present suit and that subsequently filed the present counter claim with the same relief.
In view of the judgments of the Hon’ble High reported in (1). Judgment of the Hon’ble Supreme Court reported in
AIR 2007 Supreme Court 10 Supreme Court
Between Rohit Singh and Others V/s. State of Bihar (now State of
Jharkhand) in which it is held, “Normally a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to them that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co - defendants in the suit. But a counter-
36 O.S.NO.870/2016
claim directed solely against the Co-defendants cannot be maintained. By filing a counter claim the litigation cannot be converted into some sort of an inter-pleader suit.
(2). Judgment of the Hon’ble Supreme Court reported in
AIR 2006 Supreme Court 577 Supreme Court
National Insurance Co.Ltd V/s.Mastan and Another, in which it is held “The ‘doctrine of election’ is a branch of ‘rule of estoppel’, in terms whereof a person ma;y be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case”
In view of the above judgments, the counter claim cannot be maintained as no relief is sought by the the defendants No.2 and 3 against the plaintiffs and they have approached the Hon’ble High Court by filing a writ W.P.No.14418/13 with the same prayer prior to filing of the present counter claim, as such the counter claim is liable to be dismissed.
77.ISSUE NO.2
Whether the suit is maintainable without issuing mandatory notice under section 685 of G.H.M.C Act,1955 ?
A notice U/S 685 of HMC Act shall be issued before 30 days prior to filing of the suit against the defendant/GHMC. In the instant case, the plaintiff submitted that she did not issue the notice U/s 685 of HMC Act
37 O.S.NO.870/2016
before filing the present suit.
Section 685 of HMC Act reads as follows:No suit shall be instituted against the Corporation or against the Commissioner or a Deputy
Commissioner or against any officer or servant, appointed under this act, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act- until the expiration of the one month next after notice in writing has been issued”. This court is of the opinion that except self serving statement of PW1 none were examined to prove that the defendant officials have interfered, threatened to demolish the schedule property and acted malafidely, as such a notice U/s 685 of HMC Act is required to be issued to the defendant prior to the institution of the suit, hence the suit is not maintainable for non issuance of notice under section 685 of H.M.C. Act, 1955 to the defendant prior to the institution of the suit.
Issue No.4
78.That the suit of the plaintiff is hereby dismissed and the counter claim is dismissed. No costs.
Typed to my dictation by the Personal Assistant, corrected and pronounced by me on this the 9th day of December, 2019.
FAC VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT,HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses Examined
FOR PLAINTIFF: FOR DEFENDANT :
PW1: Prakash Kumar Ailani DW2 : G.S.Mallikarjun
DOCUMENTS MARKED FOR PLAINTIFF :
Ex.A1 is the Certified copy of deed of partition bearing Document No.3114/2014,
dated 24.12.2014.
38 O.S.NO.870/2016
Ex.A2 is the Certified copy of Statement of Encumbrance on property for the period from 1.1.1995 to 20.5.2015.
Ex.A3 is the original property tax receipts (13 in number)
Ex.A4 is the original electricity bill cum notice (3 in number)
Ex.A5 is the copy of Judgment in O.S.No.850 of 2013 dated 16.2.2018 passed by the Hon’ble XXV Additional Chief Judge, City Civil Court, Hyderabad.
(Ex.A5 is marked through confrontation).
DOCUMENTS MARKED FOR DEFENDANT NO.2 and 3:
Ex.B1 is the Development Agreement was executed in favour of
G.Dayanand Reddy by one Abdulla and plaintiff No.2.
Ex.B2 is the photos along with C.D.
(Ex.B1 and B2 are marked through confrontation)
Ex-B3: Certified Copy of the sale deed document bearing No. 2074/2010 executed by G. Dayanand Reddy in favor of the defendant no.2 & 3 along cash receipt date 29-11-2010 receipt.
Ex-B4: Certified copy of the M.O.U executed between impleading petitioner and G. Dayanand Reddy, dated 29-11-2010.
Ex-B5: Certified copy of the photos filed by G. Dayanand Reddy I.A. NO.
930/2012 in O.S.No. 2209/2012 on the file of the III Junior Civil Judge, City
Civil Court, Hyderabad, dated 17-10-2012.
Ex-B6: Certified copy of the third party (7) affidavit filed by Laveena & other in OS.No. 2209/2012 on the file of the III Junior Civil Judge, City Civil Court,
Hyderabad dated 17-10-2012.
Ex-B7: Certified copy of the Plaint in vide OS.No. 850/2013 on the file of
Hon’ble XXV Additional Chief Judge, City Civil Court, Hyderabad the suit filed
by Defendant no. 2 & 3.
Ex-B8: Certified copy Plaint in OS.NO. 963/2013 on the file of Hon’ble IV
39 O.S.NO.870/2016
Junior Civil Judge, City Civil Court, Hyderabad, dated 06-05-2013.
Ex-B9: Certified copy of Written statement filed by GHMC in OS.No.
963/2013 on the file of the Hon’ble IV Junior Civil Judge, City Civil Court,
Hyderabad, dated 28-06-2013.
Ex-B10: Certified copy of Judgment in OS.No. 963/2013 on the file of the
Hon’ble IV Junior Civil Judge, City Civil Court, Hyderabad.
Ex-B11: Certified copy of the plaint in OS.No. 1624/2014 on the file of
Hon’ble VI Junior Civil Judge, City Civil Court, Hyderabad dated 11-09-2014.
Ex-B12: Certified copy of the written statement in Os.No. 1624/2014 on the file ofHon’ble VI Junior Civil Judge, City Civil Court, Hyderabad dated 15-06- 2015.
Ex-B13: Certified copy of the counter filed by G. Dayanand Reddy in
W.V.M.P. No. 2640 of 2015 in W.P. NO. 39418 of 2014.
Ex-B14: Original Copy of the Hon’ble High Court In vide CRP No. 4879/2015 (OS.No. 1624/2014) dated 16-3-2015.
Ex-B15: Original copy of the order passed in CRP No. 2391/2017, dated 03- 10-2017.
Ex-B16: Certified Copy of the order passed in WP.MP. No in WP 23305 of 2016 in WP.NO. 18999/2016, dated 10-08-2016.
Ex-B17: Certified copy of the order passed by the Hon’ble High Court in
W.P. M.P. No. 34585 of 2016 in W.P. 18999 of 2016, dated 22-08-2016.
FAC VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.