THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.20906 of 2020
ORDER:
Heard the learned counsel for the petitioners, the learned Government Pleader for Municipal Administration and Urban Development for respondent No.1, the learned Standing Counsel for GHMC for respondent Nos.2 and 3, Sri M. Naga Raghu, learned counsel for respondent No.4, and Smt. Jyothi Eswar Gogineni, learned counsel for respondent Nos.5 and 10. With their consent, the Writ Petition is disposed of at the stage of admission itself.
2. This writ petition is filed seeking a writ of mandamus declaring the impugned order dated 09/10.10.2020 passed by the respondent No.3 - Commissioner, GHMC, rejecting the objections of the petitioners seeking cancellation of the building permission granted in favour of the unofficial respondents, as illegal and arbitrary.
3. The case of the petitioners, in brief, is that an extent of Acs.5.12 guntas, forming part of Survey Nos.91, 92 and 93 of Shaikpet Village, originally belonged to one G. Rangaiah. The said Rangaiah had five sons viz., G. Balaiah, G. Kistaiah, G.Sathaiah, G. Laxmaiah and G. Eeraiah. G. Jangaiah is the son of G. Kistaiah and G. Narasimha is the son of G. Sathaiah. The petitioner Nos.1 to 4 and one L. Sundar Rao have purchased the land admeasuring Ac.0.20 guntas in Survey No.91 and Ac.0.20 guntas in Survey No.92 of Shaikpet Village, Golconda Mandal, Hyderabad District, from G. Jangaiah and G.Narasimha under unregistered sale deed dated 07.09.1994, and subsequently, the petitioner Nos.1 to 4 have constructed a compound wall around the said land and also 2 W.P.No.20906 of 2020 AAR,J erected a servant quarter therein. Thereafter, the said L. Sundar Rao has relinquished his 1/5th share in the said land in favour of the petitioner Nos.1 to 4 under two registered sale deeds dated 22.02.2010. Subsequently, the petitioner Nos.1 to 4 have executed a Registered Agreement of Sale-cum-Irrevocable General Power of Attorney in favour of the petitioner No.5-company, and delivered possession to it.
4. While so, one Umamaheshwara Reddy, the authorised signatory of M/s. Karvy Consultancy attempted to tress pass into the land in Survey No.91 claiming right over the same under a document No.3154 of 2006, and he also filed a complaint in Crime No.144 of 2009 for the offence under Sections 448 and 506 I.P.C against the petitioner Nos.1 to 4. The petitioner Nos.1 to 4 also filed a complaint against the sad Umamaheshwara Reddy before the XVII Additional Chief Metropolitan Magistrate and the same was forwarded to the Jubilee Hills Police Station on 14.05.2009. The matter was taken up under Section 145 Cr.P.C by the Special Executive Magistrate, Hyderabad, and enquired into. In the said proceedings, the letter dated 20.07.2009, of the Tahsildar, Shaikpet Mandal, was filed. According to the said letter, the land in Survey No.91 is patta land. The Special Executive Magistrate, after conducting enquiry, by order dated 31.08.2010 held that since 25.03.2009 till the date of passing of the said order, the petitioner Nos.1 to 4 were alone in possession and enjoyment of the subject land and the said Umamaheshwara Reddy was not in possession of the subject land.
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5. The Tahsildar, Shaikpet Mandal, also addressed a letter dated 20.08.2010 to the District Collector, Hyderabad District, stating that the petitioner No.2 has made an application requesting him to cancel the NOC issued by the District Collector, Hyderabad, in favour of M/s. Karvy Consultancy Limited, and he also sought to issue NOC in his favour. The Joint Collector, Hyderabad, on behalf of the NOC Committee constituted vide G.O.Ms.No.2111 dated 05.12.2005 and G.O.Ms.No.93 dated 28.01.2006 informed to the Commissioner, GHMC, to reject the NOC in favour of the petitioner No.2 and to keep in abeyance the NOC in favour of M/s.Karvy Consultancy Limited. The Commissioner, GHMC, was also informed not to accord building permission in favour of the applicant or any other person in respect of the land in Survey Nos.91 and 92 of Shaikpet Village till the title dispute with regard to Survey Nos.91 and 92 is resolved by a Civil Court. M/s. Karvy Consultancy filed a suit in O.S.No.628 of 2010 on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad, against the petitioner Nos.1 to 4 and others seeking declaration and recovery of possession.
6. It is stated that the petitioners have made an application for building permission, but the Commissioner, GHMC, has rejected the same on 23.09.2010 holding that the subject land is Government land. Aggrieved by the same, the petitioners and some other persons filed W.P.No.28169 of 2010, and this Court vide interim order dated 12.11.2010 while directing the petitioners not to deal with the land in question, directed the GHMC not to undertake any development activity.
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7. The unofficial respondents, who are claiming right and title over an extent of 952.76 square yards and 900 square yards in Survey No.92 of Shaikpet on the basis of a sale deed executed by one D. Vittal Rao, the GPA holder of the alleged erstwhile owners, entered into a development with the respondent No.9, and obtained building permission for construction of a residential complex. On coming to know the same, the petitioners have filed their objections and sought to cancel the building permission granted in favour of the unofficial respondents. However, the Commissioner, GHMC, vide the impugned order rejected the objections of the petitioners. Hence, this writ petition.
8. The respondent No.5, who entered into development agreement with the respondent No.4, filed a detailed counter- affidavit denying the petition averments and stating that the respondent No.4 has purchased an open plot admeasuring 952 square yards in Survey No.92 under a registered sale deed. That the respondent No.4 has obtained NOC from the Collector vide Endorsement No.11/5643/2009 before making an application for grant of permission, and that she has also constructed a compound wall around the said plot in the year 1996 and she is in possession and enjoyment of the same. That respondent No.4 has also got regularised her plot under the Scheme of LRS vide proceedings dated 13.05.2019. She gave the said land for development to the respondent Nos.5 and 6 vide Registered Development Agreement-cum-General Power of Attorney dated 11.04.2018. Thereafter, the developers obtained power connection and applied for building permission. At this stage, the petitioners filed a complaint with sham and frivolous documents claiming that 5 W.P.No.20906 of 2020 AAR,J they are the lawful owners of the subject property in Survey Nos.91 and 92 through the legal representatives of Kistaiah and Narasimha, who were parties to the registered GPA executed in favour of D.Vittal Rao. The petitioners failed to establish their legitimate right and title over the subject property. That the respondents are not parties to W.P.No.28169 of 2010 filed by the petitioner Nos.1 to 4. It is further stated that the documents filed by the unofficial respondents show their possession and title in respect of the land in Survey No.92. Moreover, in W.P.No.13093 of 2020, which was filed against the adjacent lands, the Revenue Department clarified that the land in Survey No.92 belongs to the respondent No.4. Since the unofficial respondents have proved their title, the official respondents have granted building permission in their favour. It is further stated that the Commissioner, GHMC, after considering all the facts and giving an ample opportunity of hearing to the petitioners, has rejected their objections, and therefore, prayed to dismiss the writ petition.
9. Respondent No.4 filed a counter affidavit adopting the counter affidavit filed by the respondent No.5.
10. Even though the respondent No.10 also filed a counter affidavit, the contents thereof need not be mentioned herein as the same are more or less similar to that of the counter affidavit filed by the respondent No.5.
11. Learned counsel for the petitioners has argued mainly on the point that the NOC Committee has earlier rejected the building application made by the petitioner No.2, and moreover, this Court vide order dated 12.11.2010 while directing the petitioners not to 6 W.P.No.20906 of 2020 AAR,J deal with the subject land in any manner, directed the GHMC not to undertake any developmental activity for a period of four weeks. The learned counsel has further stated that the impugned rejection order does not contain any reasons. That the Commissioner, GHMC, was obligated to pass necessary orders strictly on merits, as there were no disputed questions of title involved and the only question that was raised was regarding the illegal possession. Moreover, proceedings under Section 145 Cr.P.C. were also initiated. But, the Commissioner, GHMC, without considering the same, has passed the impugned order, in a mechanical manner, rejecting the objections filed by the petitioners seeking cancellation of the building permission granted in favour of the unofficial respondents. Therefore, he prayed to set aside the impugned order.
12. Per contra, the learned counsel appearing on behalf of respondent Nos.5 and 10, has argued that the writ petition itself is not maintainable. That the entire averments in the writ petition pertain to Survey No.91 only, whereas the unofficial respondents are concerned with Survey No.92. That the Commissioner, GHMC, cannot go into the disputed questions of title, and he has to only see as to whether the applicant is having prima facie title or not and whether the applicant is in possession or not and the only grant building permission. That since the Commissioner was satisfied with the prima facie title of the unofficial respondents, he has granted the building permission in their favour. That the unofficial respondents are not parties either to O.S.No.628 of 2010 or to W.P.No.28169 of 2010 and that the said suit pertains to Survey No.91. In order to support her contentions, the learned counsel has relied on the judgments in K. Pavan Raj v. The 7 W.P.No.20906 of 2020 AAR,J Municipal Corporation of Hyderabad1 and Hyderabad Potteries Private Limited v. Collector, Hyderabad District2.
13. After hearing both the parties and going through the record, this Court is of the prima facie opinion that the impugned order passed by the Commissioner, GHMC, is an elaborate order and that the Commissioner has passed the said order duly taking into consideration the fact that he can only go into the prima facie title and lawful possession before granting the building permission and that he is not the competent authority for deciding the title disputes.
14. The main contention of the learned counsel for the petitioners is that the Commissioner, GHMC, has ignored the interim order dated 12.11.2010, passed by this Court in W.P.No.28169 of 2010, and has granted building permission in favour of the unofficial respondents in violation of the said order. However, a perusal of the order dated 12.11.2010 shows that the petitioners have not made the unofficial respondents as parties to the said writ petition. Therefore, the contention of the learned counsel for the petitioners that the Commissioner, GHMC, without taking into consideration the order dated 12.11.2010 passed in W.P.No.28169 of 2010, has granted building permission in favour of the unofficial respondents is not correct.
15. The another contention raised by the learned counsel for the petitioners is that the Committee constituted for issuing the NOC has rejected the application made by the petitioner No.2 herein. 1 2008(1) ALD 792 2 2001 (3) ALD 600 8 W.P.No.20906 of 2020 AAR,J That there are disputes between the petitioners and one M/s.Karvy Consultancy, and that till the disputes are settled between those parties, the application for NOC cannot be considered. Even the order passed by the Joint Collector, Hyderabad, vide Endorsement dated 24.11.2020 does not disclose that the unofficial respondents are parties to the same. Furthermore, the unofficial respondents are not parties to O.S.No.2962 of 2017 filed by respondent Nos.7, 8 and 9, O.S.No.2546 of 2017 filed by respondent No.4 and O.S.No.628 of 2010 filed by M/s. Karvy Consultancy. Therefore, it cannot be said that till the adjudication of title by the Civil Court, the Commissioner, GHMC, ought not to have granted building permission in favour of the unofficial respondents.
16. This Court, while dealing with the powers of the Commissioner, in T. Rameshwar v. Commissioner, Municipal Corporation of Hyderabad3, 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."
17. In Masnam Hussain v. State of Telangana4 2020 (5) ALD 539 (TS), this Court held as under:
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2006 (3) ALD 337 9 W.P.No.20906 of 2020 AAR,J "..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. 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".
18. Further, in Hyderabad Potteries Private Limited (supra), this Court has held that the Municipal Authorities have to prima facie see whether the applicant is having the prima facie title or not and whether the building plan submitted along with the application for building permission is as per the rules, statutes, bylaws and the GOs prescribed, and if they are satisfied with the title and building plan, they are obligated to take an independent decision.
19. Admittedly, in the instant case, the Commissioner, GHMC, has granted building permission in favour of the unofficial respondents based on their prima facie title and lawful possession, and keeping in mind that he is not the competent authority for deciding title disputes, and therefore, the Commissioner, GHMC, has rejected the objections filed by the petitioners. 4 2020 (5) ALD 539 (TS) 10 W.P.No.20906 of 2020 AAR,J
20. For the above mentioned reasons, and taking into consideration the ration laid down by this Court in above judgments, this Court is of the prima facie opinion that the impugned order cannot be found faulted with, the same is in accordance with the settled principles of law laid down by this Court, and the writ petition is liable to be dismissed.
21. The writ petition is, accordingly, dismissed. However, if the petitioners are so advised, they are free to approach the competent Civil Court seeking appropriate relief.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date: 17.03.2021 va