THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
W.P.Nos.8100 and 7119 OF 2020
COMMON ORDER:
As the subject matter of the both writ petitions is one
and same, they are taken up together and disposed of by this
common order.
W.P.No.7119 of 2020 is filed seeking to declare the
building permission No.2/C21/07694/2019, dated
16.05.2019, granted in favour of respondent No.3 in respect
of plot Nos.97 & 98 (P) to an extent of 1000 sq. yards situated at Shilpa Hills Venture in survey Nos.60, 66, 67 (P) & 68(P) of Khanamet Village, Serilingampally Mandal, Ranga Reddy District, as illegal and malafide.
W.P.No.8100 of 2020 is filed seeking to declare the action of the respondent No.2 in issuing Notice No.987/TPS/ZO/SLPZ/GHMC/2020, dated 29.05.2020 under Section 560 of the GHMC Act, 1955, directing the petitioner to show cause as to why the building permission No.2/C21/07694/2019, dated 20.05.2019 shall not be cancelled, as illegal and arbitrary.
Heard Sri P.Sri Ram, learned counsel for the petitioner in W.P.No.7119 of 2020, Sri V.Ravinder Rao, learned senior counsel appearing on behalf of Sri T.Rajinikanth Reddy, learned counsel for the petitioner in W.P.No.8100 of 2020, learned Government Pleader for Municipal Administration 2 and Urban Development, and Sri Sampath Prabhakar Reddy, learned Standing Counsel for GHMC.
For the sake of convenience, the parties are hereinafter referred as to they are arrayed in W.P.No.8100 of 2020.
Petitioner claims to be the owner and possessor of the land to an extent of 1089 Sq. Yards in survey No.66 situated at Khanamet Village, Serilingampally Mandal, Ranga Reddy District, having purchased the same from one G.Venugopal Rao and two others under registered sale deed dated 18.04.2019. Said Venugopal is stated to have acquired the property by way of agreement of sale-cum-GPA executed by one Syed Jagangir, who acquired the said land from his forefather Syed Meer, the original owner of the subject land. Petitioner also referred to the civil disputes adjudicated between Syed Jahangir and the unofficial respondent herein. Thereafter, petitioner got the subject land regularized vide proceedings dated 19.10.2016. Subsequently, the petitioner obtained building permission dated 23.02.2020 for construction of one cellar+stilt+5 upper floors. However, based on the representation made by the unofficial respondent, the present show cause notice has been issued stating as to why the building permission granted in his favour shall not be cancelled, which is not only illegal, arbitrary, bad and against the principles of natural justice and equity.
3
It is the case of the unofficial respondent that he is the owner and possessor of plot No.97 & 98 (P) to an extent of 1000 sq. yards situated at Shilpa Hills Venture in survey Nos.60, 66, 67 (P) & 68 (P) of Khanamet Village, Serilingampally Mandal, Ranga Reddy District, having purchased the same under registered sale deed No.3248 of 2013 from T.Narasimulu and T.Chandraiah. The unofficial respondent claims to be developer of larger extent including other properties and known as Shilpa Hills layout consisting of land situated in survey Nos.60, 66, 67 (P) and 68 (P) of Khanamet Village, Serilingampally Mandal, Ranga Reddy District. It is also stated that the vendors of the unofficial respondent have purchased the larger extent of land from the family members of Syed Meer and his sons Syed Yousuf @ Syed Babu and Syed Yousuf along with Syed Fakeer, Syed Shareef and others. In the year 1995, a draft layout was made and the plots were sold to the purchasers, who subsequently got regularized their plots and after obtaining permission the purchasers have also constructed buildings. However, the respondent No.4 kept the land vacant. Taking advantage of the same, the petitioner with the help of some fabricated documents, obtained building permission, without having any title to the property. The building permission is also defective in nature as there are no proceedings according permission for conversion of the subject land from agriculture 4 to non-agriculture. Hence, it is prayed to dismiss the writ petition.
No interim orders are granted by this Court in both the writ petitions.
Learned counsel for the unofficial respondents, while taking this Court through the litigations pending before the revenue authorities as well as the civil Court, contends that without verifying the title to the subject property, the respondent authorities have granted building permission in favour of the petitioner and the same is illegal and arbitrary.
Per contra, the learned senior counsel appearing on behalf of the learned counsel for the petitioner has contended that after verifying the documents filed by the petitioner, the building permission was granted. However, merely based on the representation made by the unofficial respondent, the authorities have issued in the impugned show cause notice directing the petitioner to submit explanation as to why the building permission granted earlier shall not be cancelled and the same is illegal and arbitrary exercise of power vested with the authorities. Hence, the impugned show cause notice is liable to be set aside.
As can be seen from the record, earlier the unofficial respondent has filed W.P.No.37123 of 2013 against the orders passed by the revenue authorities granting succession in 5 favour of vendor's vendor of the petitioner viz., Syed Jahangir in respect of land in survey No.66 admeasuring Ac.0-09 guntas and the same is pending before this Court and no interim orders are passed therein. Further, in the civil suit filed by the unofficial respondent seeking injunction also no interim orders are passed by the civil Court and the suit is pending adjudication before the I Additional Junior Civil Judge, Kukatpally, being O.S.No.269 of 2020. Thus, as of now, there is no order restraining the respondent authorities from granting building permission in favour of the petitioner. That apart, the pleadings of the parties raise several disputed questions with regard to title, which can only be decided by the competent Civil Court after appreciating the evidence let in by the parties and this Court under Article 226 of the Constitution of India cannot go into those aspects. Further, no useful purpose will be achieved even if the matter is remanded back to the GHMC to decide the matter, afresh, duly taking into consideration the objections raised by the unofficial respondent, as the Commissioner under the GHMC Act is not vested with the powers to go into the disputed questions of title.
In Masnam Hussain v. State of Telangana1, this Court held as under:
"..Unfortunately, the Municipal Authorities have not been entrusted with the functions and duties to determine whether a particular individuals occupation of land is legal or illegal.
1 2020 (5) ALD 539 (TS) 6 The limited functions that are entrusted to the Municipal authorities under the Act is with respect to regulated development of zones and wards, and to issue construction permissions in the respective areas by following due process prescribed under the Act.
So far as the encroachment into petitioner's land is concerned, if the allegation of the petitioner that the 4th respondent had encroached into and occupied the petitioner's land is taken to be true, even assuming for the sake of argument that the authorities are not taking action against the alleged illegal construction being made by the 4th respondent, the remedy of the petitioner with respect to illegal encroachment is to approach competent Civil Court seeking mandatory injunction and recovery of possession. In T. Rameshwar v. Commissioner, Municipal Corporation of Hyderabad2, this Court has held under:
"Therefore, the law as interpreted by this Court with reference to HMC Act and the Act, which requires the Commissioner to consider the objections, as and when they are raised, for grant of permission on the ground of title in a pragmatic manner taking into consideration only prima facie factors. While doing so, the Commissioner cannot assume the role of an adjudicator or arbitrator and decide the title inter se between the applicant for building permission and the objector of such building permission. If the applicant is able to show that prima facie such applicant has a right to proceed with the construction notwithstanding the pendency of any litigation by way of a suit or other proceeding subject to the applicant applying the certain conditions, the Commissioner may either grant permission or postpone the grant of permission."
Moreover, the parties are adequately protected by Section 52 of the Transfer of Property Act. Irrespective of the fact whether any observation is made by the Court that the alienations made by the parties are subject to the final result of the suit or not, the doctrine of lis pendens will apply. 2 2006 (3) ALD 337 7 In view of the above facts and circumstances of the case and considering the ratio laid down by this Court in the above referred judgments, without going into the merits or demerits of the case, Writ Petition No.8100 of 2020 is disposed of setting aside the impugned show cause notice dated 29.05.2020. Consequently, W.P.No.7119 of 2020 is disposed of leaving it open to the petitioner therein to work out his remedies in the pending civil suit being O.S.No.269 of 2020 on the file of I Additional Junior Civil Judge, Kukatpally. It is needless to observer that the Civil Court shall dispose of the suit being uninfluenced by any observations made in this order.
Miscellaneous petitions pending, if any, shall stand closed.
__________________________ A.ABHISHEK REDDY, J Date : 16-02-2021 sur