Dilshad Jah v. 1. Union of lndia

Counsel for the Petitioner : SRI KISHORE RAI Counsel for the Respondents : Ms. NVR RAJAYA LAKSHMI, COUNSEL REPRESENTING SRI GADI PRAVEEN KUMAR, DEPUW SOLICITOR GENERAI* OF INDIA The Court made the following ORDER L THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA WRIT PETITION No.4O9 of 20l5 i Sri Kishore Rai, learned Senior Counsel appearing for the petitioner. Ms.NryR_Rdya Lakshmi, learned counsel representing Sri Gadi praveen Kumar, lear-ned Deputy Solicitor General of India appearing ior the res-po"d;;i". - -- ORDER: Thc petitioner prays for setting aside of a letter dated 26.07.2014 issued by the respondent No.2/ General Oflicer Commanding (GOC)-He, Andhra Sub Area, Secunderabad, by which the Security Clearance accorded by the He for the construction work undertaken by the petitioner in Survey No.90/p, tlandlaguda Village, Iiajendranagar Mandal, Ranga Reddy District, was directed to be kept in abeyance.

2. The petitioner is represented by the General power of Attorney Holders.

3. The ambiguity in the status of the Survey Number whcre the petitioner's construction is taking place is the cited ground in the impugned letter. The petitioner assails the impugned letter as being arbitrary and illegal in light of the facts both prior and subsequent to thc impugned letter. \-\ 2

4. The facts which have been presented to the Court and are relevant to the present writ petition are briefly stated below:

5. 'fhe petitioner claims to havc purchased the subject property i.e., thc iand in Survey No.90/P situated a-t Bandlaguda Jagir Viilage and Gram Panchayat, Rajendranagar Mandal, Ranga Reddy District, under a registered Sale Deed dated 02.12.2006. The petitioner obtained a 'No Objection Certificate' on 29.O5.2OO6 from the respondent No.2 for construction of residentia-I houses on the larld covered by Survey No.90 (Part) subject to the condition that the buildings shall be constructed in accordance rvith the approved plans. The petitioner thereafter executed a Registered Agreement of Sale-cum-Gencral Power of Attorney on O5.06.20O7 in favour of B.H. Ravi Kumar and Syed Shz*r Mahrnood Htrssaini for developing the property. On O5.O1.2011, the petitioner had obtained a sanction from the Gram Pancha),at, Rajendranagar Mandal, Ranga Reddy District for construction of 17 Duplex Vilias (Ground + 2 Floors). The petitioner rvas holvever stopped by the respondent No.2 on 18.(11.2O13 from procc'eding with the construction on the ground that the petitioner rvould have to obtain a No Objection Certihcatc from the respondenl No.2. lttI 3

6. The petitioner applied for a No Objection Certilicate on O7.O2.2O13 which was finally granted on 14.08.2O13 restricting the Security Clearance to only "Ground Floo/. The petitioner challenged the restriction in an earlier writ petition, namely, W.P.No.33343 of 2013, during the pendency of which the respondent No.2 issued the letter dated 26.07.2014 (impugned in the present writ petition) keeping the Security Clearance given on

14.O8.20 l3 in abeyance.

7. The petitioner fited O.S.No.l23 of 2Ol4 along with an application (1.A. No.464 of 20141 for restraining ther respondent No.2 lrom interfering with the petitioner's possession over the schedule propcrty. 1'he application (1.A.No.464 of 2O 14) was dismissed on O I . 1 2.2O 14 by the learned Additional Junior Civil Judge-cum-XVII Metropolitan Magistrate, Cyberabad at Rajendranagar. The petitioner challenged the same in C.M.A.No. 1 ol 2015 in the Courr of the learned II Additional District Judge, Ranga Reddy District at L.B. Nagar.

8. During pendency of the writ petitions ald C.M.A.No. I of 2O15, the respondenr No.2 initiated proceedings under the public Premises (Eviction of Unauthorized Occupants) Act, 1971 before 4 \ the Station Commander and Estate Officer., Secunderabad, on 28.03.2015 and the Station Commandcr and trstate Oflicer, Secunderabad passed an ordcr on 22.06.2015 declaring the petitioner as an encroacher ol the schedule property and directed the petitioner to hand over possession of thc schedule property within 15 days. The (iencral Powe r of Attorney Holders of the petitioner challenged the said order in C.M.A.No.9 1 of 2O15 in thc Court of the learned II Additional District Judge, Ranga Reddy District.

9. The learned II Additional District Judgel Ranga Reddy District, allowed both the C.M.As (C.M.A.Nos. I and 91 of 2015) on 2l.ll.2ol9. A Co-ordinatc Bcnch of this Court allowed W.P.No.33343 of 2013 on 2t.12.2O23 rvhercin the petitioner had prayed for Security Clearancc [or (iround + 2 Floors and directed ttre respondent No.2 to consider the request of the petitioner for issuance of Security Clearancc for construction of Ground + 2 Upper Floors for residential houscs in the property taking into coosideration certain relevant factors which will be enumerated later. I / 5

10. Learned Senior Counsel appearing for the petitioner submits that the impugned letter dated 26.02.2014 issued by ttre respondent No.2 keeping the Security Clearance granted on 14.08.2013 in abeyance cannot be sustained since the co-ordinate Bench of this High Court allowed W.p.No.33343 of 2013 on 21.12.2023- Counsel further disputes that the petitioner has encroached upon Survey No.9 i and relies on the common judgment dated 21.11.2019 passed by the rearned II Additional District Judge, Ranga Reddy Disrrict, in C.M.A.Nos. 1 arrd 91 of 20 15 on this issue. 1 1. The issue before the Court is whether the impugned letter dated 26.07.2014 issued by the respondent No.2/GOC_He, Andhra Sub Area, Secunderabad, keeping the Securit5r Clearance granted to the petitioner in abeyance, can be set aside.

12. The petitioner,s conrenrion is that the impugned letter dated 26.07.2014 cannot be sustained in light of the order of the Co_ ordinate Bench in W.p.No.33343 ol 2O13 dated 2I.12.2023. The petitioner relies on the common judgment dated, 2I.11.2079 passed by the II Additional District Judge, Ranga Reddy District at L.B. Nagar, allorving C.M.A.Nos. I arrd 91 of 2015, which were frled 6 challenging the order dated O1.12.2O 14 passed by the learned Additional Junior Civil Judge, Rajendranagar', in I.A.No.464 of 2Ol4 in O.S.No. 123 of 2074, and the ordr:r dated 27.O6.2O1s passed by the Station Commander and Estatc C)flicer, Telangana & Andhra Sub Area, respectively.

13. The primary contention of learned counsel appearing for the respondents is of an ambiguity with regard to the Su rvey Numbers where the petitioner is carrying out construction work as well as an ambiguity with regard to the Security Clearance being granted only for Ground Floor or Grouncl + 2 Floors.

14. After hearing learned counsel for thc parties and perusing the material placed before the Court includinpi the orders relied on by the petitioner, this Court dccms it fit to point out certain material facts which are evidcnt from the material on record.

15. First, the order passed by thc Co-ordinaLe Bench on

21.12.2023 in W.P.No.33343 ol 2Ol3 rvas concerned ',vith regard to the restriction contained in the Security Clearance lor construction of residential houses in Survey No.9O/P to Ground Floor. 'lhe order passed in the said writ petition needs to be scen in the i 1 context of the specific prayers in w.p.No.333 43 of 2013 which are set out below: ".--.to issue a tuit, direction or order more particularly a writ of Mandamus declaring the action of tlte seand. respondent in resticting the Securitg Clearane for construction of residentiot houses in the propertg i.e., kmd admeasuring 7 Acres 25.75 Guntas in Sg.No.9O/ p situated. at Bandlaguda Village Rajendemagar Mandol, Raruga Redd.g District, to Ground. floor as arbitrary, disciminatory, iltegal, null and uoid and without jurisdiction and to consequentiallg dired the secontJ respondent to atnsider the SecuitA Clearance for anstruction of the Ground ptus 2 upper Floors for residential lnuses in the propertA i.e., Land ad.ma.suring 1 Acres 25-75 Guntas in Sg.No.9O/ p situated at Bandlagudn Village, Rajendemagar Mandal, Ranga Reddg Dbtrict". 16' Incidentafly, the retiefs craimeci in w.p.No.33343 of 2013 did not specilically mention the Security clearance dated r4.og.2013 and instead merely mention the content in the Security Clearance restricting the petitioner,s construction to Ground Floor only. The relief claimed in I.A.No_ 1 of 2013 is to direct the respondent No.2 not to interfere with the construction being carried out by the petitioner in Survey No.90/ p situated at Bandlaguda Village, Rajendranagar Mandal, Ranga Reddy District. I 8 lililili

17. Further, it is seen from the order passed by the Co-ordinate Bench on 21.12.2023 in W.P.No.33343 of 2013 that there is no.,.-- reference to the letter dated 26.07.2O14 (impugned in the present Writ Petition). Even though W.P.No.33343 of 20 13 was filed before the petitioner received the letter dated 26.07 .2O 14, it is difftcult tij- -- accept that the petitioner failed to bring this letter to the notice of the Co-ordinate Bench or file a subsequent I.A. for relief against the letter at the time of disposal of the writ petiticn on 21.12.2023.

18. The petitioner's entire case rests on the order of the Co- ordinate Bench including that the Security Clearance daterl

14.O8.2O 13 was set aside by the Co-ordinate Bench. 'l'he petitioner invites this Court to accordingiy set aside thc impugned letter daLed 26.O7.2014 on the ground that the Security Clcarance dated

14.O8.2O i3 was set aside by the order dated 21.12.2023.

19. It is however relevant to point out that thc order of the Co- ordinate Bench dated 21.12.2023 did not set asidc the Security Clearance and directed the respondent No.2 to consider th: request of the petitioner for issuance of Security Clearance for construction of Ground + 2 Upper Floors for residential houses in _ I I Survey No.90/P of Bandlaguda Village, Rajendranagar Mandal, Ranga Reddy District, in accordance with law, taking into consideration an earlier permission granted to the petitioner on 05.01.2011, the No Objection Certificate dated 29.05.2O06 of Maj. Quarter Master, Artillery Centre, Hyderabad, and the observations at para 19 of the common judgment order dated 2l.lL.2Ol9 in C.M.A.Nos.1 and 91 of 2015.

20. It is evident from the material and the stand taken by the parties that the impugned lerter dared 26.02 .2014 is being considered, for all practical purposes, after 11 years dnd that the impugrred letter only addresses the ambiguity in the location of the petitioner's construction i.e., whether the construction is in Survey No.90/P or Survey No.91. The only mechanism available to solve this controversy is to direct a joint survey of the location of the construction. The joint survey would resolve the issue for determining whether the petitioner is carrying out the construction in Survey No.90/P for which the Security Clearance dated 14.08.2013 was granted or whether the petitioner has encroached into the adjoining land in Survey No.9l. The joint survey shall be conducted with the representatives of both the petitioner as well as ill-l I[l 10 \- the responcients to set at rest the issue raised in the impugnerl letter dated 26.07.2014.

21. With rcgard to the Security Clearance dated 14.08.2O13 restricting the petitioner's construction to Ground Floor only, thlp Court finds that the Co-ordinate Bench in paragraph 18 of tti,-'-- order dated 21.L2.2O23 in W.P.No.33343 of 2073 had directed thr-r respondent No.2 /GOC-HQ, Andhra Sub Area, to consider th,: request of the petitioner for issuing Security Clearance fcrr construction of Ground + 2 Upper Floors for residential houses irr Survey No.90/P within two weeks from the date ofreceipt of a copli - - - . of the order and communicate the decision to the petitioner.

22.ThereisnoevidencebroughttothenoticeofthiSCourt the respondent No.2 has complied with the order or r:ommunicated its decision to the petitioner in terms of the directions. Assuminil that the respondent No.2 is yet to comply with the directions given b), the Co-ordinate Bench in the order dated 21. 12.2023, thi:l Court is of thc view that the respondent No.2 should be give n ir finaI opporrunity to comply with the directions of the Co-ordinatr:-- ' Bench within a period of four weeks from the date of this ordt'r with due regard to the common judgment passed in C.M.A.Nos-rl tiI 11 lLlilitltlii and 91 of 2OlS by the learned II Additional District Judge, Rarga Reddy District at L.B. Nagar, and the earlier permission granted to the petitioner on 05.01 .2011 as well as No Objection Certificate dated 29.05.2006 whereby the petitioner was specilically given permission to construct Ground + 2 Upper Floors on the land in Survey No.9O/p in accordance with the approved plans. In fact, the No Objection Certificate dated 29.05.2006 issued by the Maj. Quarter Master, Artillery Centre, Hyderabad, specifically records that no further correspondence on the subject is required or will be entertained and the matter stands closed once and for all. 23. Pending consideration of the petitioner,s CASC by the respondent No.2, the Court does not find any need to issue further directions on the respondents. The order passcd b,y the Co_ ordinate Bench on 2I.12.2023, the common judgmenr passed by thc II Additionai District Judge, Ranga Reddy District in C.M.A.Nos. 1 and 91 of 2O1S, the earlier permission dated 05.01.201 1 and the No Objection Certificate daLed 29.O5 .2O06 It ould be sufiicienf for considering the petitioner,s request. The discriminatory conduct on the part of the respondents which was highlighted by the II Additional District Judge, Ranga Reddy \ lltli[l 72 District at L.B. Nagar, to ttre extent of allowing other adjacent constructions to exceed Ground + 2 Floors' shall also be taken into I consideration

24. As stated above, the controversy with regard to the Survey Numbers as highlighted in the impugned letter dated 26 'O7 '2014 would be resolved by a joint survey with the representatives of both-- "'- - the petitioner and the respondents' The joint survey shall be undertaken by the parties within two weeks from the date of this . orderandshouldalsoformpartofthedecision-makingprocessof--. the respondent No.2 as had been directed in the earlier writr petition and is being reiterated in the present writ petition' n", form of intcrim direction which the petitioner had enjoyed should continue as was also directed by the Co-ordinate Bench' ,

25. W.P.No.'1O9 of 2O15, along with all connected applications' is' disposecl ol in terms of the above' There shall be no order as t<' CoStS. //TRUE COPY// D/.N.SRIH/,TRI , ASSISTANT REGISTR,AR .s ECTION OFFICER

1. The Secretary, Union of lndia, Ministry of Defence, New Delhi. 2. The cOC- HO Andhra Sub Area Pin 900453 C/o 56 APO, Secunderabad. 3. One CC to SRi KISHORE RAl, Advocate [OPUC] 4. One CC to SR! GADI PRAVEEN KUMAR, DEPUTY SOLICITOR GENERAI- To 0* OF INDIA Advocate IOPUC]

5. Two CD Copies SA BSK r J o I \ 1 gE STaT( ( r ) :. ,l 2 1 t{At 2025 - * oA\r,614 ,,r(rO l'li HIGH COURT' DATED:3110112025 ORDER WP.No.409 of 2015 DISPOSING OF THE W.P WITHOUT COSTS. (- d @ t "l tLi