JUDGMENT :

C.V. Bhaskar Reddy, J.

This writ appeal is directed against the order dated 23.08.2022 passed in W.P.No.23668 of 2022 whereby and whereunder the learned Single Judge has dismissed the writ petition.

2. The appellant/writ petitioner filed the writ petition seeking to issue a Writ of Mandamus declaring the impugned notice vide proceedings No.3/15/TPS/W10/ C12/KZ/GHMC/2022 dated 10.05.2022 affixed on his property, describing it as alleged encroachment, as illegal, arbitrary and contrary to Article 300-A of the Constitution of India.

3. The case of the petitioner is that she is the absolute owner and possessor of property bearing H.No.10-3-14/B/13, admeasuring 350 square yards, situated at Humayun Nagar, Hyderabad, having acquired the same from her husband, namely Mohd. Abdul Hameed, through a registered Gift Settlement Deed dated 28.08.2010. She submitted an application on 04.10.2010 enclosing required plans and other necessary documents and sought for building permission from the respondent corporation. The respondent officials, having received the said application, have not granted building permission even after repeated requests. As the application for building permission has not been considered within the statutory period of 30 days, the appellant/writ petitioner has proceeded with the construction under the deemed provision of the Hyderabad Municipal Corporation Act, 1955 (briefly, ‘the Act’ hereinafter). It is also the case of the petitioner that when the respondent corporation interfered with the construction activity, she filed O.S.No.600 of 2011 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad. The Civil Court decreed the suit vide judgment and decree dated 29.08.2011 wherein it has been categorically observed that the appellant/writ petitioner has applied for building permission and the respondent corporation has failed to pass any orders on the said application within the statutory period and as such, the appellant/writ petitioner has proceeded with the construction under the deemed provision under Sections 437 and 440 of the Act. The respondent corporation having allowed the decree passed by the Civil Court to attain finality, with a mala fide intention has issued the impugned notice dated 10.05.2022 under Sections 402 and 405 of the Act alleging that the appellant/writ petitioner has encroached Safdaria Colony Park on western side of house bearing Municipal No.10-3-15/2 and 10-3-15/3, Humayun Nagar, Hyderabad and directed to remove the encroachment within 24 hours failing which the structure would be treated as unauthorised and further action would be taken for removal of the encroachment under Section 405 of the Act. As such, the petitioner prayed to set aside the impugned notice.

4. A counter affidavit has been filed on behalf of the respondent corporation wherein it is stated that the appellant/writ petitioner is not the owner of the said property nor any valid title is in existence in favour of the husband of the petitioner and merely relying upon the Gift Settlement Deed dated 28.08.2010 said to have been executed by her husband, she has made false claim over the subject property and O.S.No.600 of 2011 filed by the appellant/writ petitioner seeking the relief of injunction simplicitor restraining the respondent corporation from interfering with the construction in the subject property does not amount to title suit declaring the ownership in favour of the appellant/writ petitioner. Further, it is stated that the appellant/writ petitioner has made a false claim only to grab the open space meant for public purpose. It is also stated that the office of the Superintending Engineer, Hyderabad Circle, Telangana State Medical Services and Infrastructure Development Corporation, is intending to construct Basthi Dawakhana in the subject property and the respondent officials never tried to interfere or demolish the subject property at any point of time and prayed for dismissal of the writ petition.

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