HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.4910 OF 2010 DATED 23rd SEPTEMBER, 2014.
BETWEEN V.Kailashnath Reddy and ors …….Petitioners And Mahabub Nagar Municipality, Mahabubnagar, Mahabub Nagar District, Rep. by its Commissioner and ors.
… Respondents.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.4910 OF 2010
ORDER:
Heard the learned Counsel for the petitioner, learned Standing Counsel for Respondent No.1 and learned Counsel for Respondent Nos. 2 and 3.
The petitioners are related to each other; whereas Respondents 2 and 3 are the purchasers of the undivided share of the property of the petitioners and others. The subject property originally belongs to the grandfather (since died) of the petitioners 1 to 4 who purchased the land admeasuring an extent of 1100 square yards through two registered sale deeds and constructed two houses bearing H.Nos.1-6-68/A and 1-6-
68/A&B over the said land during his life time. The said houses were in the name of the grandmother of the petitioners 1 to 4. The said grandmother expired on 20.07.2001. The third respondent purchased the undivided shares of the legal representatives of the said grandmother, except the petitioners’ share, through registered sale deeds dated 21.09.2006 and 8.11.2007. However, the possession was not handed over to the third respondent and thereby the second respondent who is the husband of the third respondent stopped paying the rent to the petitioners under the guise of the aforesaid sale deeds. When the petitioners asked the respondents 2 and 3 to vacate the house property and handover the possession, the second respondent filed suit in O.S.No. 200 of 2008 on the file of the learned Senior Civil Judge, Mahabubnagar seeking injunction restraining the defendants therein (petitioners) from interfering with their peaceful possession of the subject property and the said suit was decreed ex parte by judgment and decree dated 06.03.2009. Then the petitioner filed suit in O.S.No. 52 of 2009 on the file of the learned Senior Civil Judge, at Wanaparthy seeking partition of the property. The third respondent herein is the 16th defendant in the said suit and she filed her written statement in the said suit and the said suit is pending for trial. While so, the second respondent taking advantage of the ex parte decree dated 06.03.2009 passed in O.S.No.200 of 2008 took steps to construct first floor on the existing house without obtaining any permission from the first respondent-Municipality. In view of the same, the fifth respondent made a representation to the first respondent on 05.02.2010 informing that H.No.1-6- 68/A&B is a joint family property and unless the said property is divided and suit in O.S.No.52 of 2009 pending consideration in regard thereto is disposed of, the respondents 2 and 3 should not be permitted to make any construction. When no action has been taken by the first respondent on the said representation, the present Writ Petition was filed.
The first respondent filed a counter affidavit stating that third respondent has not obtained any permission by submitting application in the prescribed format and paying requisite fee and that the application filed by the third respondent on 19.9.2009 seeking building permission was not considered as the petitioners dispute the ownership of respondents 2 and 3 over the property in question. It is further stated that the building in question is old one and roof is leaking here and there and third respondent erected the shed with tin sheets over the roof slab without obtaining the building permission from the first respondent which is contrary to Section 209 of the A.P. Municipalities Act 1965. Since no permission was obtained, even the temporary construction would be treated as unauthorized one and liable for auction as per the provisions of the A.P. Municipalities Act, 1965.
Respondents 2 and 3 filed a separate counter affidavit stating that after the death of grandmother of the petitioners 1 to 4, her legal heirs sold the said property to them and sale deed was executed on 21.09.2006 alienating their 2/9th undivided share of the property. Some other co-sharers executed separate sale deed on 8.11.2007 alienating their undivided 2/9th share. Due to heavy rains, the rain water leaked through the roof of the said premises and stock was inundated and damaged and therefore they got the roof repaired and laid TAR sheets. It was further stated that in order to prevent further loss, they intended to construct upper floor and therefore submitted an application along with plan to the first respondent on 19.9.2009. When there was no response from the first respondent, they erected temporary tin shed over the roof.
It is clear from the material available on record that some of the sharers of the subject property sold the house property in question to respondents 2 and 3 under the registered sale deeds and the petitioners did not execute any sale deed. Prior to the execution of the sale deed by the said shareholders, the respondents 2 and 3 have been in possession of the said house as lessees. Since the said house/building is more than 50 years old and roof was leaking, respondents 2 and 3 submitted an application to the first respondent seeking permission for construction of first floor. It appears that said application was not considered in view of non-payment of requisite fee and non submission of the application in the prescribed format. But the respondents 2 and 3 raised temporary structures without any order or permission from the first respondent and therefore the first respondent states that the said structures are unauthorized since no necessary permission was obtained from it (Mahabub Nagar Municipality-first respondent). Further it is clear that the suit in O.S.No.52 of 2009 filed by the petitioners on the file of the learned Senior Civil Judge, Wanaparthy seeking partition of the property is pending adjudication.
In the light of the above discussion, this Writ Petition is disposed of directing the first respondent to inspect the premises in question and take necessary action in accordance with law if there are any violations made by respondents 2 and 3 in respect of the building in which they are in possession.
The Writ Petition is accordingly disposed of. Miscellaneous petitions pending consideration if any in the Writ Petition shall stand closed. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO DATED 23RD SEPTEMBER, 2014.
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