IN THE COURT OF IV JUNIOR CIVIL JUDGE : CITY CIVIL COURT: HYDERABAD.
MONDAY, THE 29 th DAY OF JUNE, 2015
PRESENT: SMT.N.RUKMINI DEVI, B.A., LL.M.,
IV JUNIOR CIVIL JUDGE
O.S.NO.207 OF 2014
Between:
1. A.Shekar S/o Late A.Ramchander, aged about 36 years, Occ: Business
2. A.Lavanya W/o Late A.Shankar, aged about 42 years, Occ: Business, plaintiffs 1 and 2 are represented by their registered AGPA holder A.Sarveshwar Rao S/o Late A.Venkat Swamy, aged about 63 years, Occ: Builder, R/o H.No.SRT134, Jawahar Nagar, Near Ashok Nagar X Roads, Hyderabad500 020.
3. A.Sarveshwar Rao S/o Late A.Venkat Swamy, R/o H.No.SRT134, Jawahar Nagar, Near Ashok Nagar X Road, Hyderabad500 020
..Plaintiffs
AND
1. Deputy Commissioner, Circle No.9, Greater Hyderabad Municipal Corporation, Hyderabad.
2. Assistant City Planner, Circle No.9, GHMC, Hyderabad.
..Defendants
This suit is coming on 25.06.2015 before me for final hearing in the presence of Sri K.Nandaiah, Counsel for the plaintiffs and of Sri G.Parasuram, Standing Counsel for the defendants corporation and upon hearing both the counsel and perusing the material on record and the matter having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit filed for declaration to declare notice bearing
No.872/ACP/TPS/C9/CZ/GHMC dated 31.01.2014 issued by the defendant corporation under Section 452(1) and 461(1) of the HMC Act as illegal, null and void and not binding on the plaintiffs and also for grant of perpetual injunction restraining the defendant corporation, its employees, subordinates, etc., from causing damage or removing any structure or structures in the suit schedule property A and B i.e. schedule A property bearing H.No.11364/87 (SRT254), admeasuring 171.14 sq. yards, situated at Industrial Housing Colony, Chikkadpally, Hyderabad and schedule B property bearing SRT No.253, municipal No.11364/7, admeasuring 2 O.S.No.207/2014 25.82 sq. yards out of the total land admeasuring 128 sq. yards, situated at Industrial
Housing Colony, Jawahar Nagar, Chikkadpally, Hyderabad and with costs.
2.The brief averments of the plaint are as follows: Plaintiff No.1 and 2 are the absolute owners and possessors of H.No.11364/87 (SRT254), admeasuring 151.41 sq. yards, situated at Industrial Housing Colony, Chikkadpally, Hyderabad, which is the schedule A property herein. They acquired the said property through a will deed
dated 02.04.2007 executed by A.Ramchander, who is the father of plaintiff No.1 and
fatherinlaw of plaintiff No.2. Originally the father of plaintiff No.1 and fatherinlaw of plaintiff No.2 was the owner and possessor of the said property having purchased the same from Government of A.P., represented by Commissioner of Labour through a registered sale deed vide document No.1506/1999 dated 18.08.1999. It is submitted that A.Ramchander, during his lifetime executed a will deed on 02.04.2007 bequeathing the property mentioned in schedule A property in favour of his son and daughterinlaw i.e plaintiffs 1 and 2 herein. Thereafter, said
A.Ramchander died on 09.04.2009 due to ill health and since then plaintiffs 1 and 2 have became owners of the schedule A property. It is submitted that plaintiffs 1 and 2 being owners of their property have entered into a registered development agreementcumGPA with plaintiff No.3 herein vide document No.961/2013 dated 28.01.2013 for developing schedule A property by constructing building in accordance with the terms and conditions. It is further submitted that plaintiff No.3 is the absolute owner and possessor of SRT No.253, municipal No.11364/7, admeasuring 25.82 sq. yards out of 128 sq. yards, situated at Industrial Housing
Colony, Jawahar Nagar, Chikkadpally, Hyderabad, having purchased the same under a registered sale deed vide document No.2829/2013 dated 10.07.2013, which is schedule B property herein. It is submitted that schedule A and B properties are 3 O.S.No.207/2014 adjacent to each other as such the plaintiffs have agreed to construct a multi storied building in the total extent of 177.23 sq. yards together according to the above said development agreement. It is submitted that the defendant corporation has accorded permission for construction of ground and first floor vide permit
No.30350/DC/CZ/Cir9/2013 in file No.73837/02/09/2013/C09 dated 20.12.2013 and accordingly plaintiff No.3 had constructed ground and first floor as per the sanctioned plan. The plaintiffs further submit that in spite of assurance given by the municipal authorities with regard to regularization of deviations or unauthorized construction on the schedule of properties, but defendant No.1 had issued a notice bearing No.871/ACP/TPS/C9/CZ/GHMC dated 31.01.2014 under Section 452(1) and 461(1) of the HMC Act, to give explanation within 7 days from the date of receipt of the said notice or otherwise steps will be taken to remove defendants/unauthorized constructions, if any. The plaintiffs received the said notice on 06.02.2014 and they have already given explanation to the said notice. It is submitted that due to urgency and also due to the above said facts the issuance of notice under Section 685 of the HMC Act to the defendant corporation before filing of the suit is not necessary and requested the Court to grant the reliefs as prayed for.
3.The defendant corporation filed its written statement denying the averments made in the plaint and stated that the plaintiffs failed to issue mandatory notice under Section 685 of the HMC Act to it before filing of the suit and also put the plaintiffs to strict proof of their ownership and possession over the suit schedule property. The corporation admitted the permission of the plaintiffs for construction of ground plus first floor vide permit No.30350/DC/CZ/Cir9/2013 dated 20.12.2013.
The defendants denied the averment that the plaintiffs made construction strictly as per the sanctioned plan. It is further contended that the plaintiffs failed to issue 4 O.S.No.207/2014 mandatory notice under Section 440 of the HMC Act before commencement of construction work. It is submitted that the plaintiffs resorted to large scale deviations and unauthorizedly constructed second, third floors and pent house over and above the sanctioned plan and also converted the same into flats and covered the open spaces as mentioned in the sanctioned plan. The defendant corporation further denied the illegal interference of its officials with the suit schedule property as alleged by the plaintiff. It is stated that after verifying the illegal construction the corporation issued notices under the HMC Act to the plaintiffs, but in stead of giving reply to the said notices they have come up with concocted stories and file the present suit without any cause of action to protect the illegal construction, as such the same is liable to be dismissed.
4.Basing on the above pleadings the following issues are framed for trial:
1. Whether the plaintiffs are entitled for declaration as prayed for ?
2. Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed for ?
3. Whether the suit is maintainable without giving mandatory notice under Section 685 of the HMC Act before filing of the suit ?
4. To what relief ?
5.On behalf of the plaintiffs the third plaintiff who is also Development
AgreementcumGeneral Power of Attorney holder of plaintiffs 1 and 2 is examined as
PW1 and Ex.A1 to A7 are marked on their behalf. On behalf of defendant corporation
Ex.B1 and B2 are marked (by consent) and none were examined on its behalf.
6.Heard both sides.
7.Issue No.1&2: Since these two issues are interconnected with each other the
Court intends to answer them together.
This is a suit for injunction simplicitor and the burden heavily lies on the plaintiffs to prove prima facie case i.e. to prove that they are in possession and enjoyment of the suit schedule property as on the date of the suit and that their 5 O.S.No.207/2014 possession is legal possession. They must also to prove that they obtained permission from the defendant corporation and made construction strictly as per the plan obtained by them without any deviations and also by following the procedure as contemplated under the HMC Act. Granting of injunction is a discretionary remedy and in exercise of the judicial discretion in granting or refusing to grant, the Court will see that prima facie case, irreparable loss or injury and balance of convenience in favour of the plaintiffs. The conduct may also relate to fraud and misrepresentation and suppression of material facts, etc., are to be scrutinized before granting injunction. To substantiate the case of the plaintiffs, plaintiff No.3 who is also the
Development AgreementcumGeneral Power of Attorney holder is examined as PW1 and he reiterated the contents of the plaint averments in his chief examination and got marked Ex.A1 to A7 on their behalf. Ex.A1 is the certified copy of Development
AgreementcumGPA vide document No.961/2013 dated 28.01.2013 executed by plaintiff No.1 and 2 in favour of plaintiff No.3. Ex.A2 is the certified copy of sale deed dated 18.06.1999 executed by the Government of A.P., Commissioner of Labour in favour of A.Ramchander. Ex.A3 is the certified copy of sale deed dated 10.072013.
Ex.A4 is the notice bearing No.871/ACP/TPS/C9/CZ/GHMC dated 31.01.2014.
Ex.A5 is the will deed dated 02.04.2007 in favour of plaintiffs 1 and 2. Ex.A6 is the original sanctioned plan dated 20.12.2013. Ex.A7 is the original permit dated 20.12.2013.
8.The case of plaintiffs is that originally the father of plaintiff No.1 and fatherin law of plaintiff No.2 by name A.Ramchander, purchased the suit schedule A property under Ex.A2 in an extent of 150 sq. yards, situated at Industrial Housing Colony,
Chikkadpally, Hyderabad and during his lifetime he executed a will deed under Ex.A5 in favour of his son and daughterinlaw i.e. plaintiff No.1 and 2 herein by making 6 O.S.No.207/2014 them joint owners to schedule A property. After the death of A.Ramchander, plaintiff
No.1 and 2 became absolute owners and possessors of the said property as per will deed under Ex.A5. Plaintiff No.3 is also owner of schedule B property having purchased the same under a registered sale deed in an extent of 25.82 sq. yards out of 128 sq. yards, which is marked as Ex.A3. Thereafter plaintiffs 1 to 3 have executed a development agreement within themselves in favour of plaintiff No.3, being a builder to develop their properties under Ex.A1 and accordingly plaintiff No.3 being builder obtained permission from the defendant corporation for construction of ground plus first floor under Ex.A6 and A7 and made construction accordingly. On the other hand, the defendant corporation stated that the plaintiffs obtained permission under Ex.A6 and A7 for construction of ground and first floor but they made construction of flats by converting the residential building into commercial flats and made unauthorized construction of second, third floors and pent house over and above the sanctioned plans and covered the open spaces and also failed to issue commencement notice as required under Section 440 of the HMC Act, due to which the corporation got issued notices to the plaintiffs under HMC Act, but contended that the plaintiffs without giving reply to said notice filed by present suit by suppressing the material facts and also failed to issue mandatory notice under Section 685 of the HMC Act and there is no cause of action for the suit and the same is liable to be dismissed.
9.To substantiate the case of plaintiffs, plaintiff No.3 is examined as PW1 and he reiterated the contents of plaint averments in his chief examination affidavit.
According to PW1 he obtained permission from the defendant corporation for construction of ground and first floor for single residential unit. Plaintiffs 1 and 2 have entered into a development agreement with plaintiff No.3 under Ex.A1 to 7 O.S.No.207/2014 develop the suit schedule properties and according to PW1 he made construction as per the sanctioned plan. As seen from Ex.A1, PW1 agreed for developing the suit schedule properties as flats, but he obtained permission from the defendant corporation for construction of ground and first floor as a single residential unit in an extent of 117.14 sq. meters after effecting the extent of 33.33 sq. meters for the purpose of road widening. This fact has been admitted by PW1 in his cross examination. According to PW1 he made construction strictly as per the sanctioned plan obtained by him without any deviations, but no documentary evidence is filed into the Court to prove that he made only ground plus first floor as a single unit for residential purpose. This fact has been admitted by PW1 during his cross examination. PW1 further admitted that at the time of filing of the suit he made construction of ground floor and at present the structures are ground plus first floor and construction work is going on. As seen from the record this Court has granted status quo order at initial stage to protect the structures from being demolished by the defendant corporation as the plaintiffs apprehended for demolition of the structures in pursuance of notice under Ex.A4 and the said order is still continuing and when the said order is still in substance making of construction is nothing but violation of Court orders, which he is not permitted to do so. The own admission of
PW1 clearly reveals that he violated the Court orders and made construction when status quo order is in existence and as such the plaintiffs are not entitled for the equitable relief of injunction. Moreover, no averment in the plaint that he made construction in an extent of 117.14 sq. meters by leaving road widening portion as per sanctioned plan.
10.PW1 in his cross examination clearly admitted that he received notice from the defendant corporation under Ex.A4. As seen from Ex.A4 the corporation clearly 8 O.S.No.207/2014 stated that the plaintiffs constructed ground plus first floor by deviating the sanctioned plan in respect of all round setbacks and unauthorizedly laid RCC slab for second floor over the permitted ground and first floor at premises No.11364/8 and 11364/7(P) (SRT254&253 (P)), situated at Chikkadpally, Hyderabad, contrary to the sanctioned plan, rules and regulations, building bye laws, which are in force.
11.PW1 during his cross examination admitted that he received the above said notice, but he has not sought for any relief of declaration of the said notice at the time of filing of the suit and he filed suit for injunction simplicitor, but later he filed application for amendment to amend the plaint to seek the relief of declaration and accordingly the said application was allowed and he amended the plaint accordingly as per the orders in IA.No.230/2014 dated 08.09.2014. Though the plaintiffs received notice under Ex.A4, but they failed to give any reply to the said notice and filed the suit immediately by preventing the defendant corporation from proceeding further in order to protect their construction.
12.With regard to the construction of the plaintiffs is concerned, they have not filed any documentary proof to show that they made construction strictly as per the sanctioned plan and they also failed to prove that they made single residential unit as per the sanctioned plan. As per the agreement under Ex.A1 at para 8 it is clearly mentioned that the parties have agreed that the builder/developer shall construct a building complex comprising ground and first floor as approved by GHMC, if any further construction is made other than the approval of GHMC the said construction shall be divided equally among the owner and developer in accordance with their respective shares as per agreement. The said agreement clearly reveals the intention of the parties that they made unauthorized construction over and above the sanctioned plan for which they are not entitled for the equitable relief of injunction.
9 O.S.No.207/2014
Moreover, under Ex.B1 the plaintiffs have clearly mentioned their shares on the construction i.e. flats in the ground and first floor at the rate of 50% each, which clearly reveals that though they have obtained permission for construction of ground and first floor for single residential unit, but they have converted the same into flats for which they are not entitled to. Further both plaintiffs 1 and 2 categorically mentioned in para 9 of the plaint that in spite of assurance given by the municipal authorities with regard to the regularization of deviations and unauthorized constructions in respect of the suit schedule property, but defendant No.1 had issued notice bearing No.871/ACP/TPS/C9/CZ/GHMC dated 31.01.2014 under Section 452(1) and 461(1) of the HMC Act, which has been received by the plaintiffs on 06.02.2014, to give explanation within 7 days from the date of receipt of the said notice otherwise steps will be taken to remove deviations/unauthorized construction if any, wherein the plaintiffs have already given reply to the said notice. But, no proof filed into the Court to show that the plaintiffs gave reply to the said notice and moreover, the contents of Ex.B1 and B2 clearly reveals that there is unauthorized construction in the suit schedule property. Moreover, PW1 during his cross examination clearly admitted that he clubbed both the constructions in the suit schedule property of the present suit as well the property in O.S.No.206/2014 and made unauthorized construction of second, third floors and pent house over and above the sanctioned plan, which is sufficient to prove that the entire construction is unauthorized one and also deviated the sanctioned plan. It is a settled principle of law that admitted facts need not be proved again. Admittedly the plaintiffs have not filed any documentary evidence to show that their construction is made strictly as per the sanctioned plan and moreover, their admission under Ex.B1 and B2 also clearly reveals the intention of the parties and their unauthorized construction. PW1 10 O.S.No.207/2014 admitted in his cross examination that no commencement notice under Section 440 of the HMC Act, in writing, was given to the corporation intimating the date of commencement of construction work. Even though notice under Section 440 was not given to the corporation in writing before commencement of construction, but it is the duty of the corporation to verity and regulate the structures as per the sanctioned plan and in case of violation, the duty cast upon the corporation to issue required notices and proceed against such construction and demolish the same. Accordingly the corporation issued notice under Ex.A4 to the plaintiffs for which the plaintiffs have stated that they have given reply to the said notice, but PW1 during cross examination admitted that no reply was given to Ex.A4 notice, though he stated that he gave reply to notice, which reveals that PW1 is not a trustworthy witness and he is an interested witness to the present case. In the present case, the plaintiffs sought for absolute permanent injunction against the defendant corporation and its officials.
Admittedly when there are deviations/unauthorized construction made by plaintiffs as against the sanctioned plan, if this Court grants permanent injunction as prayed for by the plaintiffs, definitely it is nothing but an infringement of the legitimate duty of the defendant corporation in taking necessary action against the unauthorized construction made by the plaintiffs, in pursuance of notice issued by it under Ex.A4.
Therefore notice under Ex.A4 was issued by the defendant corporation in accordance with the procedure laid down under the HMC Act and the corporation also followed the procedure as contemplated under the HMC Act and therefore, the said notice cannot be declared as null and void and the plaintiffs are also not entitled for the ancillary relief of perpetual injunction as prayed for, as they failed to prove their prima facie case and balance of convenience is also more tilt in favour of the defendant corporation. Hence, issues 1 and 2 are answered against the plaintiffs and 11 O.S.No.207/2014 in favour of the defendant corporation.
13.Issue No.3:
The case of the defendant corporation is that before filing of a suit against the corporation, issuance of a notice under Section 685 of the HMC Act is mandatory.
But, the plaintiffs have not issued any such notice and hence the suit is liable to be dismissed as the same is bad for want of said notice. The contention of the plaintiffs is that they made construction in accordance with the sanctioned plan, but even then the officials of the defendant corporation are interfering with the suit schedule property and trying to demolish the structures therein. Plaintiffs stated in their plaint averments that PW1 who is the builder had invested huge amount in constructing the building in the suit schedule property, the subordinates of the defendant corporation threatened him with dire consequences while issuing notice and put them in dire consequences that they will demolish the structures at any time. Due to urgency of the case and also in view of the above reasons the issuance of notice under Section 685 of the HMC Act is not necessary as such the plaintiffs have filed the present case without issuing the said notice as there is threat of demolition. But, the plaintiffs failed to prove the threat made by the officials of the defendant corporation.
Moreover, the plaintiffs themselves clearly admitted that they received notice under
Ex.A4 from the defendant corporation, which clearly reveals the the corporation intended to take action against the unauthorized construction made by the plaintiffs in accordance with the HMC Act, but not otherwise. Therefore, it can be said that the plaintiffs failed to establish the cause of action and therefore, the non issuance of notice under Section 685 of the HMC Act is fatal to the case of the plaintiffs and the suit is not maintainable as the same is bad for want of the said notice. Hence, this issue is also answered against the plaintiffs and in favour of the defendant 12 O.S.No.207/2014 corporation.
14.In view of the above discussion, I hold that the plaintiffs failed to prove their prima facie case and balance of convenience is also more tilt in favour of the defendant corporation and accordingly the plaintiffs are not entitled for any relief as prayed for and the suit is liable to be dismissed.
15.Issue No.3:
In the result, the suit is dismissed. Under the circumstances of the case no costs.
Typed to my dictation, corrected and pronounced by me in the open Court on this the 29th day of June, 2015.
Sd/ N.Rukmini Devi IV Junior Civil Judge, City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE
Witnesses Examined
For the plaintiffs: For the defendant:
PW1: A.Sarveshwar Rao None
Documents marked for the plaintiffs:
Ex.A1 is the certified copy of Development AgreementcumGPA vide document No.961/2013 dated 28.01.2013 Ex.A2 is the certified copy of sale deed dated 18.06.1999 Ex.A3 is the certified copy of sale deed dated 10.072013 Ex.A4 is the notice bearing No.871/ACP/TPS/C9/CZ/GHMC dated 31.01.2014 Ex.A5 is the will deed dated 02.04.2007 in favour of plaintiffs 1 and 2 Ex.A6 is the original sanctioned plan dated 20.12.2013 Ex.A7 is the original permit dated 20.12.2013
Documents marked for the defendant corporation:
Ex.B1 is the portion of matter in Development AgreementcumGeneral Power of Attorney at page No.6 Ex.B2 is the portion of matter in plaint at para No.7
Sd/ N.Rukmini Devi IV Junior Civil Judge, City Civil Court, Hyderabad.