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Judgment
Mr. Bankatlal Mandhani, learned counsel for the petitioners.
Mr. C.H. Jayakrishna, learned counsel representing Mr. learned Standing counsel for the Greater Hyderabad Municipal Corporation (GHMC) for respondent No.2.
Mr. R.A. Achuthanand, learned counsel for respondent Nos.5 and 6.
This writ petition is filed seeking the following relief:
“a) declare the inaction of the respondents for non removing the encroachment of the part-cum-play ground of the Mahesh Nagar Colony in Chirag Ali Lane, Nampally area, Hyderabad made by the 4th respondent as illegal, arbitrary, unreasonable, unfair and opposed to public policy and public interest for non-maintenance of environmental necessity being a public purpose.
b) to pass consequential suitable direction or directions to demolish the unauthorised construction by removing the encroachment in the part-cum-play ground area as set apart in a layout sanctioned by the 2nd respondent and direction to hold an enquiry as to how the unauthorised construction came about and to bring the offenders who are responsible for such encroachment in any manner and to bring the offenders to book.
c) be pleased to grant such other relief or reliefs as are deemed fit under the circumstances of the case.”
Brief Facts:
As per averments in the writ petition and submissions made, the grievance of the petitioners is that an area admeasuring more than 1,000 square yards was earmarked as park land as per layout No.75/66 of 1977 dated 31.03.1977. Respondent No.4 has got his garage towards north of park area and has encroached major part of the land earmarked for the purposes of park by forcibly removing compound wall of park area. Respondent No.4 filed suits bearing Nos.O.S.No.5267 of 2000 and O.S. No.4166 of 1991 (subsequently renumbered as O.S.No.218 of 1998) and obtained ex parte decrees. Respondent No.4 sold land (including the area encroached) to respondent Nos.5 and 6 and respondent Nos.5 and 6 are making constructions on the said land. A direction in this writ petition is sought for removal of the encroachment on the park-cum-play ground in Mahesh Nagar Colony, Chirag Ali Lane, Nampally area, Hyderabad. A direction has also been sought to demolish the unauthorised construction(s).
It is submitted by learned counsel appearing on behalf of petitioners that the entire land admeasuring 8135 sq. yards known as uma bagh, was Jagir land and one Mr. Raja Bharat Ram Bhoopal was the owner of the land and the same was sold to M/s. Shankarlal & Shankarlal, a registered firm, in the year 1973 vide a registered sale deed dated 14.11.1973. A layout was made with plots and an area of more than 1,000 square yards was earmarked for park inclusive of temple area and the same was presented to the Municipal Corporation for approval and the layout was sanctioned in the year 1977. That the first sale deed was made in favour of petitioner No.1 and certain boundaries were shown as park in the layout. It is submitted that as per layout dated 31.03.1977, the land in question is reserved for the purposes of the park and therefore, action should have been taken by the Commissioner, Greater Hyderabad Municipal Commissioner (GHMC), to remove the encroachments on the complaint made by petitioners.
4.1. It is submitted that respondent No.4 purchased property and applied for permission and was denied permission on the ground that the area earmarked for park was encroached. That suits were filed by respondent No.4 and obtained ex parte decrees in the suit(s). That Respondent No.4 forcibly removed the compound wall of the park and removed children’s play equipment present in the area earmarked for park. That complaints were made by petitioners to Municipal corporation, Municipal Commissioner taking cognizance of the complaint, visited the area and removed the encroachments and that this fact is not disputed by the contesting respondents.
4.2. It is submitted that two (02) months prior to filing of writ petition, respondent No.4 illegally removed the play equipment of children and a complaint was made in the office of Greater Hyderabad Municipal Corporation and no action was taken by the Building Inspector of the Municipal Corporation of the Hyderabad. It is submitted that the Doctrine of Public Trust would apply to the instant case as the authorities have failed to protect the area earmarked for park. To buttress the said contention of Public Trust Doctrine, learned counsel relied upon the judgment of the Hon’ble Supreme Court in M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu and others AIR 1999 SC 2468 and contended that the areas earmarked for park should be protected and restored.
4.3. It is submitted that Civil Suit in O.S.No.218 of 1998 (earlier numbered as O.S.No.4166 of 1991) was filed by respondent No.4 and ex parte decree was obtained. That in the said suit, petition under Order I Rule 10 Code of Civil Procedure, 1908 (CPC) bearing I.A.No.3047/1993 for impleadment was filed by the petitioners, but the same was dismissed. That an application under Order IX Rule 13 of CPC was filed and the same was dismissed. That another suit O.S.No.5267 of 2000 was filed and ex parte orders were obtained by respondent No.4. It is submitted that respondent No.4 sold the property to respondent Nos.5 and 6 and that respondent Nos.5 and 6 purchased some other property in the same area.
4.4. It is submitted that unofficial respondents on ex parte decrees are trying to encroach the park area by showing it as a private property to make illegal constructions. It is submitted that the community hall which is existing in the said area has been constructed by the Municipal Corporation and funds for the community hall were sanctioned by the Municipal Corporation. That the other issue is whether the temple is existing in the park area or not and that the official respondents have not disputed the facts stated in the writ petition. The learned counsel appearing on behalf of the petitioners pleaded that in the interest of the residents, park area be protected.
Learned counsel appearing on behalf of the respondent Nos.5 and 6 submitted that initial sale was made in the year 1974 vide sale deed dated 07.08.1974 and that the layout is granted on 31.03.1977. The sale deed is prior to that of sanctioned layout and the subsequent layout which has been sanctioned cannot take away the right(s) of the respondents.
5.1 Learned counsel for respondents No.5 and 6 has submitted that the area being shown by petitioners as park area is, in fact, not a park area. It is submitted that the plot of respondents No.5 and 6 i.e., plot No.5 is being shown by writ petitioners as park area. It is submitted that respondents No.5 and 6 have purchased land vide registered sale deed dated 28.08.1984 from respondent No.4. It is further submitted that a room is in existence and the entire area is surrounded by a compound wall and the same is not park area. It is submitted that plot held by respondent Nos.5 and 6 is being contended as park area by the petitioners which is not correct.
5.2. It is submitted that the vendor of respondents No.5 and 6, i.e., respondent No.4, filed O.S.No.218 of 1998 and that ex parte decree for declaration of title and injunction has been granted which attained finality. That O.S.No.5267 of 200 was filed and an ex parte decree was granted. It is further submitted that being aggrieved by the action of Municipal Corporation in refusing to grant building permission, respondent Nos.5 and 6, filed O.S.No.1837 of 2008 in which an order of status quo has been passed. It is also submitted that petitioners are parties to the aforesaid suit. That this writ petition cannot be entertained and petitioners being parties to the suit cannot seek adjudication of the same issue in a writ petition.
Learned counsel appearing on behalf of the Corporation submitted that pursuant to the directions of this Court, a report dated 04.12.2023 was prepared and that as per the report of the Deputy Director, Survey and Land Records, GHMC, Hyderabad, the original revised layout copy could not be traced, but as per the photostat copy of revised layout issued in the year 1977 (in the name M/s. Shankarlal & Shankarlal), dimensions of area earmarked for park is 964 sq.yds. That the report also sets both the boundaries of the park and that the temple is constructed in part of the park area as per layout. It is further submitted from the report that as per the ground position, the disputed land stated to be purchased by the respondent Nos.5 and 6 i.e, Plot No.5 (vide sale deed document No.11768/1980) is not matching with the Plot No.5 in the revised layout plan (File No.1/layout/TP/74 Dt.31.03.1977). Further, as per the information produced by the concerned circle office and head office, the original layout file is not traceable and a detailed sketch map showing the disputed area and existing Community hall, existing Temple in park and existing plots was enclosed to the report.
Heard learned counsels, perused the record and the report of the Deputy Director, Survey and Land Records, GHMC.
Considered the rival submissions. The entire controversy revolves around the issue of extent of area earmarked for park, whether any such extent of earmarked area for park is under encroachment or not. This is a question of fact which needs to be established by documents, records and evidence. This Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of Constitution of India to adjudicate on factual aspects. It is also brought to the notice of this Court that the suit filed by unofficial respondents i.e., O.S.No.1837 of 2008 is pending in the Court below. We deem it appropriate to grant the liberty to the parties to approach the competent Court. Needless to state that it would be open for the parties to raise all the issues canvassed herein in the said suit.
With the above directions, Writ Petition is disposed of with aforesaid liberty.
Miscellaneous applications, pending, if any, shall stand closed.