Commissioner, Municipal Corporation of Hyderabad and another vs R. Siddappa

P. Venkatarama Reddi, J

This writ appeal and contempt appeal arises out of the order passed by the learned single Judge in Writ Petition No.3634 of 1988. That writ petition was filed by the respondents herein seeking an order to direct the respondents (officials of the Municipal Corporation) to restore the possession of the land in Plot No.4 Survey No.21 admeasuring 136 Sq. yards situate in Walker Town, Padmarao Nagar, Secunderabad, which according to the petitioner belongs to him. The contention of the petitioner is that he purchased the plot in the year 1979 by means of a registered sale deed executed by one R. Satyamma who in turn purchased the same under a registered sale deed from one Putli Begum in the year 1968. In the plan enclosed to the sale deed the reference is to Survey No.21 and Plot No.4 is not found in the sale deed. However, boundaries are mentioned. Before filing the writ petition, the petitioner instituted a suit OS No.3358 of 1984 in the Court of II Assistant Judge, City Civil Court for declaration and permanent injunction. That suit was disposed of ex parte on 16-7-1986 as the Municipal Corporation did not care to file the written statement nor to let in any evidence. The cryptic judgment dated 16-7-1986 of the II Assistant Judge is in two sentences which reads as follows:

"PW1 examined. Exs.A1 to A12 marked. Suit claim proved. Suit decreed with costs."

It is interesting to note that in the decree, the survey number given is 24 whereas in the schedule appended to the decree, survey number 21 is mentioned. It appears that prior to the filing of the suit, there was a statutory notice to which the Municipal Corporation did not reply. Even after the suit was decreed, a legal notice dated 7-9-1988 was issued to the respondent-authorities calling upon them to hand over the possession of the suit land and pay the full compensation. The factum of filing of suit and decree therein has also been mentioned in that notice. It is unfortunate that even after this notice the authorities concerned continued to remain silent for reasons best known to them and did not move their little finger to have the ex parte decree set aside. Be that as it may, the petitioner filed a writ petition i.e., 3634 of 1988 in November, 1988 seeking the relief as mentioned above. In the affidavit filed in support of the writ petition, it was alleged that the possession of 113.71 sq. metres was forcibly taken "to construct the same as a road or park'''' without following the due procedure. The claim as to ownership was based mainly on the decree in the suit. Utter negligent and callous attitude of the Corporation persisted even in these writ proceedings. No counter was filed in the writ petition.

At the time of hearing of the writ petition, a contention was advanced that it was impracticable to restore the land inasmuch as it was utilised for widening the road. The learned single Judge disposed of the writ petition with the following directions:

"Therefore, I direct the respondents-Corporation to take steps for payment of compensation to the petitioner on his filing necessary particulars as to the extent of land, survey number and ownership of such land before them. On seeing the documents filed before respondents 1 and 2, the respondents should act upon and complete the process of payment of compensation in accordance with Land Acquisition proceedings positively within a reasonable time."

After the writ petition was disposed of, the writ petitioner''s Counsel while enclosing a copy of the High Court''s order, requested the petitioner to comply with the formalities for determination of compensation. The respondent-writ petitioner was called upon to produce link documents of the site and approved lay out in order to take action in the matter. The petitioner furnished the sale deeds and the decree copy. As far as lay out plan of Smt. Putli Begum in Survey No.21 is concerned, it was stated in the legal notice issued on 22-7-1993 that he applied for certified copy which has not been furnished. It was also stated therein that the Corporation was asking him to furnish unnecessary documents. It is seen from the file mat the papers were put up to the Commissioner and the Commissioner decided to communicate a speaking order to the writ petitioner rejecting his claim for ownership and taking the stand that the land vested in the Municipal Corporation as per the approved lay out. Before such communication was sent, the contempt case was filed and thereafter the Standing Counsel for Corporation submits that the Corporation has refrained from entering into any correspondence. The contempt case which was filed in September, 1993 was disposed of on 26-10-1993. The Standing Counsel for the Corporation sought time to file counter. However, the request was rejected with the following observations :

"Even if any record is either available or produced at this stage, it will not have any relevance because the decree granted by the civil Court in 1986 has become final and it is not open to the respondents to take any defence ignoring the decree granted by the civil Court. The learned Counsel for the respondents submitted that the records are necessary for identifying the land. The petitioner, who is the owner of the land, is the best person who can identify the land and the respondents are, therefore, directed to depute a responsible Subordinate Officer working under them at 10.00 a.m. on 2-11-1993 when the petitioner will come to the respondent''s office and take that officer to the spot and identify the land belonging to him and which has been encroached upon by the respondents. On such identification, the respondents are directed to pay compensation on or before 15-11-1993 for the extent of 136 square yards with negotiations by the petitioner, failing which, the respondents shall pay at the rate of Rs. 1,500/- per square yard to the said extent. If the said order is not complied with, the respondents shall be held liable for contempt. Post on 17-11-1993 for reporting compliance."

The writ appeal and the contempt appeal are preferred against the aforementioned orders.

The stand taken by the Municipal Corporation in some of the earliest communications addressed to the petitioner is that the land was ear-marked for park in the approved lay out and the same was utilised for road laying subsequently. In the belated affidavit filed in the writ appeal, certain details are mentioned by the Additional Commissioner. The same stand is reiterated in this counter. It is categorically stated that the said land was car-marked for park in the lay out issued in the year 1955 in favour of Smt. Putli Begum as seen from the copy of the layout plan dated 5-4-1959 and suppressing this fact Putli Begum sold the land to R. Satyamma who is the vendor of the writ petitioner. It is explained in the affidavit that a Counsel was engaged in the suit and para wise remarks were sent to him for contesting the suit. He failed to take any interest and he allowed the suit to be decreed ex parte. The learned Counsel for the appellants states across the bar that a complaint was lodged by the Corporation against the said Counsel to the Bar Council. It is also mentioned that the Plot No.4 of Putli Begum lay out was never taken over as a park and on Plot No.4, a building has already been constructed by some other person after obtaining permission. It is also averred that in the registered sale deeds, the boundaries are ambiguous.

The sequence of events narrated by us unfold a sad commentary on the negligent and indifferent way in which the litigation was conducted on behalf of the Municipal Corporation of Hyderabad. We cannot but condemn this apathy and indifference on the part of the concerned officials in the strongest terms and in fact we have seriously thought, of ordering a probe into the matter. But, we are told that the officials concerned have retired and it is doubtful whether any responsibility can be fixed at this distance of time on the culprits.

Apart from placing reliance on the civil Court''s decree which has become final, the learned Counsel for the respondent harped upon failures and omissions on the part of the Municipal Corporation to respond to the various notices and in taking diligent steps in the Court of law. But, we are of the view that such lapses and omissions by themselves do not advance the petitioner''s case who has to establish his claim for ownership. In fact, the learned single Judge did not grant any positive direction for restoration of land. The learned single Judge guardedly observed that on production of documents relating to ownership of the land, the Corporation authorities should take expeditious steps for payment of compensation. As it is the case of the petitioner that the ownership of land is clinchingly established not only on the strength of the sale deeds but also by virtue of the Civil Court''s decree which has attained finality and as the Civil Court''s decree is the sheet-anchor of the respondent''s case, we have to consider for the purpose of disposal of the writ appeal and the contempt appeal whether the Civil Court''s decree should be given effect to by this Court. It may be recalled that the directions in the contempt petition were issued by the learned single Judge based on the fact that the decree of the Civil Court has become final. While on this question, apart from taking note of the unsatisfactory manner of disposal of suit and the discrepancy in the survey number mentioned in the decree, we should take note of certain material facts:

By the time the petitioner filed the suit, admittedly, he received the communication dated 19-9-1981 in which a categorical stand was taken by the Corporation that the land in question was reserved for park in the lay out of Putli Begum. The communication further indicates that the request for conversion of park for residential purpose was negatived by the Corporation. The factum of receipt of communication is admitted by the petitioner in the affidavit filed in support of the writ petition. But, this crucial and material fact has not been mentioned in the plaint. That apart, misleading averment was made at paragraph 5 in the following terms :

"It is respectfully submitted that the defendant is laying claims to the said suit property for the purpose of constructing a park at Padmarao Nagar."

It is further averred that the land was in his physical possession. The fact that already, the land was ear-marked for a park in the approved lay out, according to the stand taken by the Municipal Corporation, has been suppressed. With regard to the assertion that he was in physical possession, it is far from truth. In the affidavit filed in support of the writ petition, it was mentioned that possession was taken over from him and a road was laid. The deposition of PW1 in the suit has not been produced before us and we are not sure whether the plaintiff-writ petitioner deposed therein about his possession of the land. The legal notice dated 22-12-1985 shows that the Corporation interfered with the possession of the writ petitioner''s land and "put tar for the purpose of making a road and converted it into a road". According to this averment in the legal notice, the road was laid on the disputed land. To this legal notice, the Corporation sent a reply on 3-2-1986 stating that the Corporation laid the BT road 8 years back. This communication was admittedly received by the petitioner. Thus, it is fairly clear that even by the date of filing the suit, the writ petitioner was not in physical possession of the disputed land as alleged. Even otherwise, during the pendency of the suit, it cannot be denied or disputed that the writ petitioner was divested of the possession when the road was laid. Nevertheless, he did not choose to amend the plaint and seek relief for recovery of possession. Six years later, the writ petitioner thought it fit to file a writ petition seeking recovery of possession knowing fully well the limitations inherent in Article 226 of the Constitution of India. Initially, the writ petitioner filed declaratory/injunction suit and after a long gap, he chose to approach the High Court by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Apart from the civil nature of the dispute, we do not think that the writ petitioner is entitled to get the relief in the writ proceedings. It is axiomatic that a writ under Article 226 of the Constitution of India cannot be issued ''ex debito justitiae''. The conduct of the party who approaches the Court is one of the material considerations that has to be taken into account. A person who suppresses the material facts and obtains an ex parte decree from the Civil Court and then approach this Court for enforcement of that decree is, in our view, disabled from getting the discretionary relief under Article 226 of the Constitution of India. It is often said that he or she who approaches the Court under Article 226 of the Constitution must do so with clean hands. The writ petitioner failed to disclose all the material facts before the Civil Court and failed to file the relevant communications which were received from the Municipal Corporation. The Court was kept in dark not merely because of the inaction on the part of the Corporation to file written statement but also because of the plaintiff''s failure to disclose the material facts. We are therefore of the view that no relief can be granted to the writ petitioner on the footing that he has established his claim for ownership. The learned single Judge who heard the contempt case erred in law in granting a direction which we have extracted above and which, it seems to us, goes beyond the scope of the judgment in the writ petition itself.

For the reasons aforesaid, the contempt appeal is allowed and the order of the learned single Judge in Contempt Case No.504 of 1993 is set aside.

As regards the writ appeal, suffice it to clarify that the learned single Judge did not give any positive direction for payment of compensation straight-away. The order of the learned single Judge amounts to giving a direction to the Corporation that the ownership documents should be looked into and appropriate decision be taken. In that view of the matter, no interference is called for with the order of the learned single Judge. However, insofar as there are any observations in the judgment as regards the ascertainment and payment of compensation, those observations are vacated. The writ appeal is accordingly disposed of.