IN THE COURT OF VI JUNIOR CIVIL JUDGE, CITY CIVIL COURT,
HYDERABAD.
Dated This The 01 st Day of October, 2020.
Present: S mt. K.Chandishwari Devi,
VI Junior Civil Judge
O.S.No. 2531 of 2017
Between :
1. Kalva Vijay Kumar, S/o. Sri Kalva Suryanarayana, Aged 68 years, Occ: Business, R/o. H.No. 83850, Surya Mahal, Mozamjahi Market, Hyderabad.
2. Kalva Ashok Kumar, S/o. Sri Kalva Suryanarayana, Aged 64 years, Occ: Business, R/o. H.No. 83849, Surya Mahal, Mozamjahi Market, Hyderabad.
3. Kalva Praveen Kumar, S/o. Sri Kalva Prakash Rao, Aged 55 years, Occ: Business, R/o. Plot No. 10, Anandnagar Colony, New Bowenpally, Secunderabad
...Plaintiffs
A N D
1. Greater Hyderabad Municipal Corporation, Tank Bund Road, Hyderabad,rep. by its Commissioner.
2. The Deputy Commissioner, Circle No. 14, Greater Hyderabad Municipal Corporation, Hyderabad.
...Defendants
This suit is coming before me for final hearing in the presence of
Sri D. Madhava Rao, Advocate for the Plaintiffs and Sri G. Gopala Chary,
Standing Counsel for Defendant Nos.1 and 2 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: 2
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:J U D G M E N T:
This suit is filed by the plaintiffs against the defendants seeking the relief of perpetual injunction by restraining the defendants, their agents, servants and all persons claiming through them from illegally demolishing the suit schedule property other than due process of law by way of permanent injunction and to declare the notice issued by GHMC, dt.1307 2017 vide:13/ACP/NALA/TPS/C 14/C2 to be Null/void and to award costs of the suit.
The brief averments in the plaint are as follows:
2.The Plaintiffs submitted that originally late Sri Kalva Suryanarayana who was the father of Plaintiff Nos.1 and 2 and grandfather of Plaintiff
No.3 had acquired the property bearing No.53848 to 53850 under
Registered Sale Deed.
3.The Plaintiffs further submitted that after demise of Late Kalva
Suryanarayana, the plaintiffs have succeeded the suit schedule property by operation of law. The plaintiffs further stated that there is a Nala that was existing from the date of purchase of the suit schedule property and the said Nala was mentioned in the Sale Deed also and abutting to the Nala there was a wall constructed by the Government to protect the
Government land, adjacent to the Nala the wall which was constructed by the Government separates the land from plaintiffs’ property with that of
Government property and moreover the Nala is closed one which is existing under ground and is passing from east side and the said Nala was 3
O.S.No.2531 OF 2017
in existence since time immemorial.
4.The plaintiffs further submitted that the Government had distributed
FormD pattas to landless poor and based on such FormD pattas, the Patta holders started illegally occupying entire land of Government, alienated the property in favour of several people and some individual who were interested in the property got all such patta holders evicted and converted it into vacant land and developed the same based on Sale Deeds. Later the
Government through Revenue Department took action and initiated some proceedings and W.P.M.P.No.38327 of 2015 is pending in the Hon'ble
High Court. The plaintiffs further stated that certain individuals who had acquired the land started excavating the land and then the Government wall that was existing long before was collapsed, as such, the plaintiffs had given complaint to the GHMC on 16052017 and requested them to reconstruct the wall.
5.The plaintiffs further submitted that defendant No.2 had issued the
Notice Vide No.B/ACP/NALA/TPS/C14/C2/GHMC/17, dt:13072017 to them and in that notice it was mentioned that the plaintiffs have encroached upon the Nala. The plaintiffs further submitted that if the
GHMC have any evidence in its possession that Nala exists is 10.50 Mts, then it is required to be placed before this Court by the Defendants. The plaintiffs further submitted that the Nala exists physically and it is closed, and due to the existence of Nala no accidents had occurred and moreover plaintiffs did not encroached the Nala or made any new construction and 4
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the suit property is 7 decades old and the construction of the suit property was made based on sanctioned plan which was issued by defendant No.1 and 2.
6.The plaintiffs further submitted that they had given reply on 3107 2017 to the notice issued by defendant Nos.1 and 2 and there is no further communication or order passed considering the said reply. The plaintiffs further stated that the defendant subordinate officials came to the suit schedule property couple of times and more particularly on 18092017 they are threatening them with demolition and moreover the officials have threatened that the demolition would be carried out at any time as the reply given by the plaintiffs is not in consonance and that they would not be considering the same and that the men and machinery would be brought to the site at any time to demolish the property.
7.The plaintiffs further submitted that the defendants did not issue notice to show cause or even letter of any kind what so ever giving them at least an opportunity to demonstrate the lawfulness of plaintiffs’ ownership and possession over the property. The plaintiffs further submitted that the defendants are under legal obligation to issue the notice as per the provisions of GHMC Act and give fair chance of hearing to the plaintiffs and then to proceed as per the law before undertaking the demolition.
But, in the instant suit the officials of defendant did not issue any notice and their action in visiting the property and interfering and trying to threaten the plaintiffs to demolish the suit schedule property is illegal, 5
O.S.No.2531 OF 2017
void, arbitrary, malafide and against the principles of natural Justice and, as such, the plaintiffs did not issue mandatory notice U/s. 685 of GHMC
Act to the defendants prior to the institution of the suit as there was an urgency. Hence, the suit.
On the other hand the defendant Corporation have filed the written statement for the facts as follows :
8.The defendant Corporation submitted that the plaintiffs be put to strict proof of their ownership and possession over the suit schedule property.
9.The defendant Corporation further submitted that the plaintiffs have illegally and unauthorizedly constructed rooms and shop over the Nala by encroaching upon existing 3.00 mts nala, which is going to be affected under proposed 10.50 mts Nala widening i.e., Lakdikapool Nala2 from
Malakunta to Seena Bakery via Abdul Qayyum Lane, M.J. Market,
Hyderabad. The defendant Corporation further submitted that as per the storm water drainage Master plan of GHMC, the width of the Nala shall be 10.50 mts wide, whereas the plaintiffs herein have constructed by encroaching entire 3 ft width existing Nala which is causing obstruction from free flow of water in the drain. The defendant Corporation issued
Notices under Sections 405 & 406 of HMC Act, 1955 dt: 13072017 to the plaintiffs herein. The defendants further stated that the property bearing
H.No.53848/B is a shop which was constructed on the Nala with RCC structures and H.No.53850 is consisting of 6 rooms which are 6
O.S.No.2531 OF 2017
constructed on the Nala with asbestos sheet roof and the main house consists of Ground + 2 upper floors which is abutting to the said properties on the Nala, part of which is going to be affected in proposed widening of the Nala to 10.50 mts.
10.The defendant Corporation further submitted that after issuing the above notices, they have partly demolished the structures over the Nala on 28102017 but due to shortage of men and machinery they could not complete the total demolition of the structures over the Nala. It is further stated that the contention of the plaintiffs that the officials of defendant
Nos.1 and 2 had threatened the plaintiffs to demolish the structures illegally more particularly on 18092017 is strenuously denied and moreover the contents of complaint, dt.16052017 and reply dt.3107 2017 are vague.
11.It is further stated that there are no malafide acts on the part of the defendants Corporation and the plaintiffs at the most can claim for compensation as per law if they prove their ownership in respect of the property which is going to be affected due to widening of Nala but they cannot restrain the defendants Corporation from taking the legal steps for widening of the Nala.
12.The defendant Corporation further submitted that the suit is liable to be dismissed as the plaintiffs did not issue the mandatory notice prior to the institution of the suit. Hence, prays to dismiss the suit.
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13.Based on the pleadings of both the parties the following issues were framed for trial on 25012019:
1. Whether the notice issued by GHMC to the plaintiff is null and void?
2. Whether the plaintiffs are entitled for perpetual injunction against the defendant Corporation as prayed for?
3. Whether the suit is maintainable without issuing mandatory notice U/s. 685 of GHMC Act, 1955?
4. To what relief ?
14.On behalf of plaintiffs, plaintiff No.1 has filed the chief affidavit on his behalf and also on behalf Plaintiff Nos.2 and 3 and he was examined as
PW1 and through him Exs.A1 to A6 were marked. Ex.A1 is the Certified
Copy of Sale Deed bearing document No.577/1950 which is in Urdu language filed along with English Translation, Ex.A2 is the Office Copy of
Complaint given by the Plaintiff to the Commissioner GHMC, Hyderabad, dt.16052017, Ex.A3 is the Notice U/s. 406 of HMC Act., 1955, dt.1307 2017 given by Dy. Commissioner to the plaintiff, Ex.A4 is the Office Copy of representation made by the plaintiffs to the Dy. Commissioner, Circle
No.14, GHMC, Hyderabad, dt.31072017, Ex.A5 is the letter
No.C/9964/2017 issued by Thasildhar and Ex.A6 is the Copy of plan issued by the Dy. Director, S&LRS, Hyderabad District.
15.On behalf of defendants, none were examined, but Exs.B1 to B6 were marked in confrontation with PW1. Ex.B1 is the Notice U/s.406 of
HMC Act, 1955, dt.13072017 issued to the Plaintiffs, Ex.B2 is the Notice 8
O.S.No.2531 OF 2017
U/s. 405 of HMC Act, 1955, dt. 072017 to the father of the plaintiff
No.3, Ex.B3 is the plan showing the effected portion of the premises bearing H.No.53850, Ex.B4 is the plan showing the effected portion of the premises bearing H.No.53848/B, Ex.B5 is the Hyderabad Strom
Water Projectdetails of drains in the basin and Ex.B6 is the copy of Town
Survey Land Register.
16.Heard both sides. Perused the material available on record.
ISSUE No.1:
Whether the notice issued by GHMC to the plaintiff is null and void?
17.This suit is filed by the plaintiffs against the defendants seeking the relief of perpetual injunction by restraining the defendants, their agents, servants and all persons claiming through them from illegally demolishing the suit schedule property other than due process of law by way of permanent injunction and to declare the notice issued by GHMC, dt.1307 2017 vide:13/ACP/NALA/TPS/C 14/C2 to be Null/void and to award costs of the suit.
18.During the course of arguments the learned counsel for plaintiffs through Cisco Webex meeting No.1662402052 contended that the suit schedule property was originally purchased by Late Sri Kalva
Suryanarayana who is the father of plaintiff Nos.1 and 2 herein and the grandfather of plaintiff No.3 herein and after his demise the property was succeeded by all the three plaintiffs. The counsel further contended that 9
O.S.No.2531 OF 2017
there is a nala and it is existing for the past 7 decades and abutting to the nala there was a wall which was constructed by the Government to protect the Government land and that wall separates the plaintiffs’ property with that of Government’s property.
19.The learned counsel further contended that the nala is fully covered and it is passing from east side and the existence of nala and existence of
Government property is evident from T.S.L.R. map of T.S.No.50, Ward
No.49, Block – C, locality Feelkhana, Nampally Village. The learned counsel further contended that the Government had issued FormD pattas to landless poor based on such FormD pattas the patta holders had started illegally occupying the entire land of the Government and also started alienating the property in favour of several people and later on some individuals who were interested in the property got all such patta holders evicted and converted it to be a vacant land and at that time the
Government had realized that the property now sought to be developed is a Government property, therefore the Government through Revenue
Department filed W.P.No.38327 of 2015 which is pending before the
Hon’ble High Court.
20.The counsel further contended that the Government wall which was existing was collapsed, as such, the plaintiffs had given complaint to the
GHMC i.e., Defendants on 16052017 and requested them to reconstruct the wall, then the defendants had issued a notice U/Sec. 406 of HMC Act, 10
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1955, dt.13072017 to the plaintiffs herein and the counsel further contended that the plaintiffs had given reply to the said notice on 3107 2017 and vehemently contended that the notice issued by defendant No.2 is null and void.
21.On perusal of Ex.A3 it is clearly mentioned in the notice that the plaintiffs have encroached upon nala and as per Storm Water Drainage
Plan of GHMC, the width of the nala shall be 10.50mts wide, where as the width of the nala now available due to this encroachment at the site under reference is 3 mts wide which is causing obstruction for free flow of water in the drain.
22.For better appreciation it is relevant to extract Section 406 of GHMC
Act and Section 406 reads as follows:
Power to require removal of a structure or fixture erected or set up: The Commissioner may, by written notice, require the owner, occupier of any premises contiguous to, or in front of, or in connection with which any wall, fence, rail, post, step, booth or other structure or fixture which it would be unlawful to erect or set up under this Act has been erected or set up to remove the said wall, fence, rail, post, step, booth or other structure or thing:
Provided that, if any such case the structure or fixture shall have been lawfully erected or set up, compensation shall be paid by the Commissioner to every person who sustains loss or damage by the removal or alteration thereof.
23.The plaintiffs after receiving the notice under Ex.A3 has given reply under Ex.A4 and in Ex.A4 the plaintiffs have stated that the existing 3 mtrs nala is in their land and the proposal to take over further land of 10 feets 11
O.S.No.2531 OF 2017
is totally unreasonable and moreover the plaintiffs in their reply i.e., in
Ex.A4 have categorically stated that they did not encroach into the nala land and infact nala is flowing through their land which can be verified from T.S.L.R. and also from Ex.A1 i.e., Sale Deed and the counsel for plaintiffs further contended that the plaintiffs after giving reply to Ex.A3 the defendants did not pass the reasoned order on notice whether they have satisfied with the reply given by the plaintiffs herein.
24.Per contra the learned standing counsel for defendants through Cisco
Webex meeting No.1662402052 contended that the defendants had followed the due procedure of law incorporated in GHMC Act and issued notice to plaintiffs herein and moreover PW1 in his crossexamination has admitted that Exs.B1 and B2 were legally issued to them by the defendants herein.
25.After considering the submissions made by the learned counsels for both the parties, this Court is of the view that PW1 in his cross examination has stated that he has encroached 3 mtrs on the nala and subsequently when a suggestion was put to PW1, he had denied the suggestion and stated that he did not encroach the nala, it is clearly understood that PW1 is making different versions i.e., contradictory statements with regard to the encroachment of nala and on perusal of
Ex.B5 in serial No.44 it is mentioned as Lakadika Pool NallaII and as per
Ex.B5 the minimum width should be 8.00 and the maximum width should 12
O.S.No.2531 OF 2017
be 10.50 but as per Ex.B1 it is clearly noticed that due to encroachment of nala by the plaintiffs now the width of the nala is only 3 mtrs, this Court is of the opinion that the defendants have rightly issued the notices to the plaintiffs herein and, as such, the notices cannot be declared as null and void. Issue No.1 is answered against the plaintiffs and in favour of the defendants.
ISSUE No.2
Whether the plaintiffs are entitled for perpetual injunction against the defendant Corporation as prayed for?
26.The learned counsel for plaintiffs vehemently contended through
Cisco Webex meeting No.1662402052 that the nala is in existence from time immemorial and the counsel further contended that as per Ex.A1 i.e., in schedule of property on east side it is mentioned as “Naka Bader”and
Government wall include in the Sale Deed, but on perusal of Ex.A5 i.e., on eastern side it is mentioned as T.S.No.95, BlockC, Ward No.49 (P.W.D.Plot No.C) the boundaries in Ex.A1 and Ex.A5 are not tallying and moreover PW1 in his plaint has stated that as per the recitals of the Sale
Deed there is a nala i.e., existing and abutting to the nala there was a wall which was constructed by the Government. PW1 in his crossexamination has categorically stated that “it is true that the boundaries mentioned in the suit schedule property in my plaint and the boundaries in Ex.A5 are different.” 13
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27.The learned counsel vehemently contended that even after giving reply to Ex.A3, the officials of the defendant Corporation are in post haste to take action illegally without following the due process of law and the officials were bent upon to demolish the suit schedule property and threatened the plaintiffs to dispossess illegally from the suit schedule property.
28.Per contra the learned standing counsel for defendants vehemently contended that they never threatened the plaintiffs with illegal dispossession from the suit schedule property nor threatened to demolish the suit schedule property and the learned standing counsel further contended that they had partly demolished the structures over the nala on 28102017 but they could not complete the total demolition of the structures over the nala due to inadequacy of men and machinery. PW1 in his crossexamination has stated that he has filed the present suit against the defendants herein and since 1950 to till date the plaintiffs are in possession of the suit schedule property and the defendant officials came to the suit schedule property and demolished the part of the property and when a suggestion was put PW1, PW1 has denied the suggestion which is as follows: “It is not true to suggest that I have not mentioned the above said facts in my plaint”.
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29.On reading the entire plaint averments and chief affidavit filed by
PW1 it is noticed that PW1 did not mention that part of his schedule property was demolished by the defendant Nos.1 and 2 herein.
30.At this juncture it is relevant to go through Section 101 of Indian
Evidence Act, 1872. Section 101 of Indian Evidence Act reads as
follows: “Burden of proof:Who ever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists”.
“When a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person”.
31.In the instant suit the burden of proof lies on the plaintiffs to prove their case that there is a Nala and as per Ex.A1 the Nala is in their property for the past 7 decades, but on perusal of Ex.A1 in the schedule of property it is mentioned on east side there is Naka Bader and Government wall include in the sale deed. On perusal of entire Ex.A1 it is noticed that there is no mention about the nala then how can the plaintiffs claim right over the nala and moreover the defendants are contending that the plaintiffs have encroached 3 mtrs over the nala, to deny the contention made by the defendants with regard to the encroachment of Nala by the plaintiffs, the plaintiffs did not produce any cogent evidence i.e., the plaintiffs did not file the sanction plan nor got appointed an Advocate Commissioner to make the physical verification of the suit schedule property nor examined any neighbours before this Court to prove that they did not encroach the 15
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nala except PW1 evidence, hence, issue No.2 is answered against the plaintiffs and in favour of the defendants.
ISSUE No.3:
Whether the suit is maintainable without issuing mandatory notice U/s. 685 of GHMC Act, 1955?
32.Plaintiffs in their plaint, chief affidavit and also during cross examination have categorically stated that they did not issue mandatory notice u/s.685 of H.M.C.Act, 1955 to the defendant Corporation prior to the institution of the suit.
“Section 685 of HMC Act speaks as follows: Section 685 protection of persons acting under this Act against suits. 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 of 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 one month next after notice in writing has been issued”.
33.This Court has relied upon the verdict passed in Viquarunnisa
Begum and others Vs. Municipal Corporation of Hyderabad 2010 (3)
ALD 47, their lordships held that “in view of the malafide on the part of the defendant Corporation and its officials there is no necessity of issuance of notice U/s. 685 of HMC Act, but in the instant suit the plaintiffs failed to prove that the defendant Officials had acted malafidely, as such, issuance of notice is mandatory but the plaintiffs did not issue the mandatory notice 16
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U/sec. 685 of GHMC Act to the defendants prior to the institution of the suit, as such, the suit is not maintainable. Issue No.3 is answered against the plaintiffs and in favour of the defendants Corporation.
ISSUE No.4:
To what relief ?
In the result, the suit is dismissed without costs.
Typed to dictation by the Personal Assistant, corrected and
pronounced by me in the open Court, on this the 01st day of October,
2020.
Sd/
VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT,HYDERABAD.
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APPENDIX OF EVIDENCE
Witnesses Examined
FOR PLAINTIFFS: FOR DEFENDANTS:
PW1: Kalva Vijay Kumar. None
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.A1 is the Certified Copy of Sale Deed bearing document No.577/1950 which is in Urdu language filed along with English Translation.
Ex.A2 is the Office Copy of Complaint given by the Plaintiff to the Commissioner GHMC, Hyderabad, dt.16052017.
Ex.A3 is the Notice U/s. 406 of HMC Act., 1955, dt.13072017 given by Dy. Commissioner to the plaintiff.
Ex.A4 is the Office Copy of representation made by the plaintiffs to the Dy. Commissioner, Circle No.14, GHMC, Hyderabad, dt.31072017.
Ex.A5 is the letter No.C/9964/2017 issued by Thasildhar.
Ex.A6 is the Copy of plan issued by the Dy. Director, S&LRS, Hyderabad District.
DOCUMENTS MARKED FOR DEFENDANT:
Ex.B1 is the Notice U/s.406 of HMC Act, 1955, dt.13072017 issued to the Plaintiffs.
Ex.B2 is the Notice U/s. 405 of HMC Act, 1955, dt. 072017 to the father of the plaintiff No.3.
Ex.B3 is the plan showing the effected portion of the premises bearing H.No.53850.
Ex.B4 is the plan showing the effected portion of the premises bearing H.No.53848/B.
Ex.B5 is the Hyderabad Strom Water Projectdetails of drains in the basin.
Ex.B6 is the copy of Town Survey Land Register. Sd/
VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.