HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.17249 OF 2021
ORDER:
This Writ Petition is filed seeking to declare the impugned proceedings bearing No.Lr.No.22943/MED/R1/U6/HMDA/2019, dated 14.07.2021 passed by the 2nd Respondent putting in abeyance all the technical approvals issued by it vide Proceedings Lr.No.22943/MED/R1/U6/ HMDA/24.04.2019 for construction of Project Saketa Arvindam (presently Nestila Aravindam) without assigning any reasons, as illegal and for a consequential direction to Respondent Nos.1 to 4 to record the name of the Petitioner in all the technical approvals etc., including proceedings issued by the 2nd Respondent vide Lr.No.22943/MED/R1/ U6/HMDA/24042019, dated 22.01.2021 and Permit No.G1/P/02/B/ NMC/2021-22, dated 09.04.2021 in File No.789/B/MC/NP/2020 sanctioned by the 3rd Respondent in pursuance of the registered sale deed bearing Doc.No.5800 of 2021 dated 09.02.2021 executed by the 5th Respondent in favour of the Petitioner.
2. Heard Mr. Ghanshyamdas Mandhani, learned counsel for the Petitioner and Mr.V. Narasimha Goud, learned Standing Counsel appearing for the 2nd Respondent, Mr.N. Praveen Kumar, learned Standing Counsel appearing for the 3rd Respondent and Mr. Anup Koushik Karavadi, learned counsel appearing for the 5th Respondent and perused the record.
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3. FACTS OF THE CASE
i) The Petitioner herein and the 5th Respondent are incorporated under the Limited Liability Partnership Act, 2008. The Petitioner was formed by ex-designated partners of the 5th Respondent.
ii) The 5th Respondent had submitted an online application dated 24.04.2019 requesting the 2nd Respondent to grant building permission in respect of open land admeasuring 9860 Square Yards (8,093.61 Square Meters) in Sy.No.36 (part) situated at Bachupally Village and Mandal, Medchal-Malkajgiri District, consisting of cellar + groundfloor + 5 upper floors situated in Bachupally Village, Nizampet Municipal Corporation.
iii) The 2nd Respondent had accorded technical approval and forwarded the same to the 3rd Respondent-Local Body vide proceedings dated 22.01.2021.
iv) Thereafter, the 5th Respondent herein had sold the said property to the Petitioner under registered sale deed dated 09.02.2021 for a total sale consideration of Rs.18,00,00,000/-(Rupees eighteen crore only) including passing of title and the technical approval issued by the 2nd Respondent.
v) Thereafter, the 5th Respondent herein had submitted representations dated 13.05.2021, 01.06.2021 and 18.06.2021 to the 2nd Respondent informing the sale of the said property along with HMDA approvals and other permissions granted to M/s Saketa Kakatiya LLP, 3 KL,J W.P.No.17249 of 2021 M/s Saketa Synergies LLP and M/s Saketa Shree LLP for the same sale consideration.
vi) Thereafter, certain issues viz., non-receipt of balance sale consideration, retirement / exist of designated partners, change of name of the Petitioner, extension of MOU dated 19.02.2021 etc., were cropped up between the Petitioner and Respondent No.5.
vii) Respondent No.5 had submitted representations dated 13.05.2021 and 01.06.2021 to respondent No.2 with a request to suspend the approval and not to consider the request of the Petitioner for change of name.
viii) Despite receiving and acknowledging the said representations, the 2nd Respondent did not act upon it.
ix) The 5th Respondent had filed W.P.No.13348 of 2021 seeking direction against the 2nd Respondent to consider its representations and take appropriate action. This Court vide order dated 15.06.2021 in W.P.No.13348 of 2021 directed the Respondent Nos.2 and 4 herein to consider the representations dated 13.05.2021 and 01.06.2021 and pass necessary orders thereon, strictly in accordance with law, duly putting the Petitioner as well as the 5th Respondent herein on notice, calling for their explanation and affording them an opportunity of hearing as expeditiously as possible, preferably, within a period of four weeks from the date of receipt of a copy of the order. This Court had also directed 4 KL,J W.P.No.17249 of 2021 the Respondent Nos.2 to 4 therein to communicate the orders to the parties.
x) Thereafter, the Petitioner herein had submitted representations dated 26.05.2021, 01.06.2021 and 03.07.2021 seeking change of name in the technical approval and all other consequential proceedings.
xi) Thereafter, in compliance of the said orders, the 2nd Respondent had conducted hearing and passed the impugned proceedings dated 14.07.2021. In the impugned proceedings, it was stated that the Petitioner herein had filed an application for change of name as per the agreement made by the 5th Respondent, but the Petitioner had not fulfilled the sale consideration as mentioned in the registered sale deed dated 09.02.2021. The Petitioner herein did not submit any documentary evidence in proof of fulfillment of the sale consideration. Therefore, the Petitioner herein was directed to submit documents in proof of fulfilling the sale consideration paid by it in favour of the 5th Respondent in terms of the said registered sale deed dated 09.02.2021 and till the name change is considered by the 2nd Respondent, the technical approval issued vide proceedings dated 22.01.2021 was kept in abeyance until further orders. Feeling aggrieved by the said orders, the Petitioner herein has filed the present Writ Petition.
4. CONTENTIONS OF THE PETITIONER:
i) Impugned proceedings dated 14.07.2021 are arbitrary, without jurisdiction or authority vested in law.
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ii) In terms of the registered sale deed, dated 09.02.2021, the 5th Respondent had transferred the title in respect of the above said subject property including its technical approvals and permissions etc., in favour of the Petitioner. With regard to balance sale consideration of Rs.3,53,27,404/- (Rupees three Crores fifty three Lakhs, twenty seven Thousand, four Hundred and Four only), the same stood discharged by way of Memorandum of Understanding (MOU), dated 19.02.2021. The said MOU was scribed by the counsel appearing for the 5th Respondent and it is valid.
iii) However, the 5th Respondent had filed a suit O.S.No.80 of 2021 against the petitioner herein for recovery of the above said amount of Rs.3,53,27,404/- (Rupees three Crores fifty three Lakhs, twenty seven Thousand, four Hundred and Four only) along with interest at the rate of 24% from the date of filing of the suit till realization.
iv) There is no challenge to the enforceability of the said MOU dated 19.02.2021 by the 5th Respondent herein in O.S.No.80 of 2021 and it is only a suit for recovery of money.
v) Part payment of sale consideration or non-payment of sale consideration as agreed in the sale deed does not cancel or invalidate the sale deed. Title passes with the execution of sale deed. 6
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vi) Reliance is placed on the decisions of the Hon'ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through LRs1 and Vidhyadhar v. Manikrao2.
vii) Reliance is also placed on the principal laid down by the Hon'ble Apex Court in Dattatreya Shanker Mote v. Anand Chintaman Datar3 and Section 8 of the Transfer of Property Act, 1882, which provide that with the transfer of property, all the rights and interests are transferred, unless a different intention is expressed. Therefore, all the approvals and permissions stood transferred in favour of the Petitioner.
viii) If the essential characteristics of the document remain unchanged, an unregistered document can modify the registered document. In support of the said contention, reliance was placed on the principle laid down by the Apex Court in Indarjit v. Lal Chand4.
ix) Vide common order dated 15.09.2021 passed by the XVI Addl. District Judge, Ranga Reddy at L.B.Nagar, in I.A. 487 of 2021 and I.A. No. 772 of 2021 in O.S. No. 80 of 2021 the Court below permitted the Petitioner herein to deposit the suit amount of Rs.3,53,27,404/- (Rupees three Crores fifty three Lakhs, twenty seven Thousand, four Hundred and Four only) on or before 18.04.2021 to the credit of the suit, subject to the 1 (2020) 7 SCC 366 2 (1999) 3 SCC 573 3 (1974) 2 SCC 799 4 16 A.W.N (1896) 16 7 KL,J W.P.No.17249 of 2021 disposal of the main suit and in default, the petition schedule property shall be attached before judgment on payment of process.
x) In compliance of the said order, the said amount was deposited and in proof of the same, a copy of the challan dated 16.09.2021 was filed and also a memo was filed before the Court below. Therefore, the Petitioner herein had paid balance sale consideration in terms of the registered sale deed dated 09.02.2021. Thereafter, the Petitioner herein vide a letter dated 20.09.2021 informed the 2nd Respondent about the compliance of the impugned proceedings dated 14.07.2021 by depositing the said amount to the credit of the above said suit O.S.No.80 of 2021 and requested the 2nd Respondent to transfer technical approvals and other permissions into the name of the Petitioner herein and also to withdraw the abeyance proceedings.
xi) Reliance is also placed on the decisions in Pawan Raj v. Municipal Corporation of Hyderabad5, SSPDL Ltd., Hyd. v. HMDA6, District Collector, Hyderabad v. N. Krishna Mohan7, S. H. Kishanlal v. State of Telangana8 and Kanjuvaried v. Radhalekhsmi Naithiyaramm9.
xii) With the said submissions, learned counsel for the Petitioner would submit that the 2nd Respondent does not have the power to issue 5 (2008) 1 ALD 792 6 (2017) 6 ALD 570 7 (2000) 4 ALD 126 (DB) 8 (2021) SCC online TS 783 9 AIR 1955 Tra-cochin 69(FB) 8 KL,J W.P.No.17249 of 2021 the impugned proceedings keeping the technical approval issued by it in abeyance on the ground that the Petitioner herein has not paid sale consideration in favour of the 5th Respondent in terms of the registered sale deed dated 09.02.2021. The 2nd Respondent does not have the power to issue the impugned proceedings under Section 23 of the Hyderabad Metropolitan Development Authority Act, 2008 (for short, 'the HMDA Act').
xiii) With the said submissions, learned counsel for the Petitioner sought to set aside the Impugned proceedings dated 14.07.2021 and to issue a consequential direction to the 2nd Respondent to consider the request of the petitioner to transfer the technical approvals and other permissions in the name of the petitioner.
5. CONTENTIONS OF THE 2ND RESOPNDENT
i) It has received representations from the 5th Respondent stating that the Petitioner herein had not paid sale consideration in terms of the sale deed dated 09.02.2021.
ii) As per the orders dated 15.06.2021 passed by this Court in W.P.No.13348 of 2021 directing the 2nd Respondent to consider the representation submitted by the 5th Respondent and pass appropriate orders in accordance with law by giving an opportunity of hearing to both the parties, the 2nd Respondent had conducted hearing and passed impugned proceedings dated 14.07.2021.
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iii) During the said enquiry, the 2nd Respondent came to a conclusion that the Petitioner herein has not paid the sale consideration in terms of the said sale deed dated 09.02.2021. Therefore, it was informed to the Petitioner and the 5th Respondent herein that unless and until the said balance sale consideration is paid by the Petitioner to the 5th Respondent, the request of the Petitioner for change of name in the technical approvals and other permissions cannot be considered and that the technical approvals dated 22.01.2021 issued in favour of the Petitioner are kept in abeyance. Thus, the impugned proceedings were issued in compliance of the orders dated 15.06.2021 passed in W.P.No.13348 of 2021. Therefore, there is no irregularity or illegality in the said order.
6. CONTENTIONS OF THE 5TH REPNODENT
i) The Writ Petition is not maintainable.
ii) There are questions of fact.
iii) There is an obligation cast upon the 5th Respondent to mortgage 10% of the built up area of the registered mortgage deed executed by the 5th Respondent in favour of the 2nd Respondent herein, the same was not complied with by the Petitioner herein.
iv) The Petitioner cannot claim that the mortgage deed stood transferred in its name vide sale deed dated 09.02.2021. The mortgage deed executed by the 5th Respondent needs to be rectified and modified with the name of the Petitioner.
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v) A suit vide O.S.No.80 of2021 was filed by the 5th Respondent for recovery of the balance sale consideration along with interest is pending and the Petitioner herein instead of pursuing its remedy in the said suit, filed the present Writ Petition and is virtually seeking to decide questions of fact by this Court under Article 226 of the Constitution of India, which is not permissible.
vi) The MOU dated 20.07.2021 entered between the Petitioner and one partner of the 5th Respondent is not valid and it is non-est.
vii) Arbitration proceedings vide Arbitration Case No.4 of 2020 are pending between the 5th Respondent and Saketa Satwik LLP.
viii) Reliance is placed on the principle laid down by the Apex Court in Chandrakant Shankar Rao Machale v. Parubai Bhairu Mohite (Dead) Through Lrs.10, to contend that the terms of a registered document can only be varied or altered by another registered document. Further reliance was placed on Jyoti Brothers v. Shree Durga Mining Co.11 and it was contended that in regard to the MOU in question that a contract to enter into a contract is not valid.
ix) There was suppression and misrepresentation of facts by the Petitioner herein while making application to the 2nd Respondent seeking change of name in all the technical approvals and subsequent permissions. Therefore, the 2nd Respondent is having power under 10 (2008) 6 SCC 745 11 A.I.R 1956, Cal. 280 11 KL,J W.P.No.17249 of 2021 HMDA Act, 2008 to revoke or cancel the technical approval dated 22.01.2021 issued in favour of the 5th Respondent.
x) In the event of construction being carried out by the Petitioner herein without change of its name in the technical approvals and other permissions, the said construction would be unauthorized and it will cause great prejudice to the 5th Respondent. There is a provision to prosecute the 5th Respondent for violation of terms of the technical approval dated 22.01.2021 and also the mortgage deed executed by the 5th Respondent in favour of the 2nd Respondent.
xi) The 5th Respondent had submitted representations to the 2nd Respondent with a request not to consider the change of name in favour of the Petitioner herein and revoke the technical approval dated 22.01.2021.
xii) Despite receiving and acknowledging the said representation, the 2nd Respondent did not act upon it and therefore, the 5th Respondent had filed the above Writ Petition wherein this Court directed the 2nd Respondent to consider the same and pass appropriate orders in accordance with law and in compliance of the said order, the 2nd Respondent had issued the impugned proceedings. Therefore, there is no irregularity or illegality in the said impugned proceedings. With the said submissions, the 5th respondent sought to dismiss the Writ Petition.
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7. CONSIDERATION OF THE COURT
i) The above stated facts would reveal that the 5th Respondent herein, being the absolute owner and possessor of subject property, had submitted an online application with the 2nd Respondent seeking grant of building permission. The 2nd Respondent had considered the same and issued proceedings dated 22.01.2021 according technical approvals in favour of the 5th Respondent in respect of the subject property and forwarded the same to the 3rd Respondent-Local Body. Thereafter, the 5th Respondent had sold the subject property along with its technical approvals in favour of the Petitioner herein for a total sale consideration of Rs.18,00,00,000/-(Rupees Eighteen Crores only).
ii) In the said sale deed, it is specifically mentioned about grant of technical approval in favour of the 5th Respondent. It is also specifically mentioned that the 5th Respondent as per its resolution dated 18.12.2020 and modified resolution dated 01.02.2021, unanimously agreed to sell the schedule specified property along with the approval to the Petitioner herein and the Petitioner had agreed to buy the same under mutual negotiations for the said sale consideration.
iii) The details of payment including the cheques issued were specifically mentioned in the said sale deed. It is also specifically mentioned at Clause 3 of the sale deed that the 5th Respondent had acknowledged the receipt of the entire sale consideration in the manner specified therein and did agree thereby to convey, grant, transfer and 13 KL,J W.P.No.17249 of 2021 assign the said property to the purchaser i.e. the Petitioner herein with all attendant rights of ownership. Both the Petitioner and the 5th Respondent have categorically agreed that neither party have any unsettled claims whatsoever against each other as on the date of sale other than the cheque amount that stands payable in favour of the 5th Respondent by the Petitioner under the said sale deed.
iv) The Petitioner had taken responsibility to pay any other further amounts payable to the 2nd Respondent and any other government organizations and RERA for the completion of the project. There is an indemnity clause in the sale deed. The 5th Respondent being the vendor, agreed that it shall sign, verify and execute such statutory documents as are required so as to effectively convey transfer and convey title to the schedule specified property and also the approval so procured from HMDA unto and in favour of the Petitioner.
v) The above stated facts would reveal that the whole dispute is with regard to the payment of balance sale consideration i.e. Rs.3,53,27,404/- (Rupees three Crores fifty three Lakhs, twenty seven Thousand, four Hundred and Four only). It is relevant to note that the 5th Respondent has filed the above said suit vide O.S.No.80 of 2021 against the Petitioner herein for recovery of the said amount along with 24% of Interest per annum. The said suit is pending. In the said suit, the 5th Respondent has filed a petition vide I.A.No.487 of 2021 seeking attachment before judgment and the Petitioner herein has filed a 14 KL,J W.P.No.17249 of 2021 permission petition vide I.A.No.772 of 2021. The Court below vide common order dated 15.09.2021 in I.A.No.487 of 2021 and I.A.No.772 of 2021 in O.S.No.80 of 2021 permitted the Petitioner herein to deposit suit amount of Rs.3,53,27,404/- (Rupees three Crores fifty three Lakhs, twenty seven Thousand, four Hundred and Four only), on or before 18.09.2021 subject to the disposal of the said suit, in default, the petition schedule property shall be attached before judgment on payment of process. In compliance of the said order, the Petitioner herein has deposited the said amount to the credit of the said suit. In proof of the same, the learned counsel for the Petitioner has filed a copy of challan dated 16.09.2021 and also filed a copy of the said challan before the Court below along with a memo. Thereafter, the Petitioner herein has submitted a representation dated 20.09.2021 to the 2nd Respondent informing it that the Petitioner herein has complied with the orders dated 14.07.2021 and filed proof of deposit of the balance sale consideration under the sale deed in the said suit. Thus, the Petitioner herein had requested the 2nd Respondent to consider the same and revoke the order dated 14.07.2021, wherein the 2nd Respondent kept the technical approval under abeyance and permit the Petitioner to proceed with its construction activity.
vi) It is also relevant to note that the 2nd Respondent in its counter has narrated the entire facts including the orders passed by this Court in W.P.No.13348 2021 and O.S.No.80 of 2021. In paragraph No.9, it is 15 KL,J W.P.No.17249 of 2021 specifically stated that the proposals submitted by the Petitioner will be considered once the 2nd Respondent receives documentary evidence showing that the Petitioner has fulfilled the sale consideration. Thus, the Petitioner herein has now complied with the order dated 14.07.2021 and deposited the balance sale consideration to the credit of the said suit O.S.No.80 of 2021 before the Court below.
vii) With regard to the contentions of the learned counsel for the 5th Respondent that the MOU is non-est, the character of registered document cannot be altered or modified by way of unregistered document and with regard to execution of the same etc., are the complicated questions of fact which cannot be gone into by this Court under Article 226 of the Constitution of India. It is settled principle that this Court can go into questions of fact as held by the Hon'ble Apex Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Limited12 and the same was reiterated by a Division Bench of this Court, to which I am a Member, in M/s. Agni Aviation Consultants v. State of Telangana13 but certainly not into complicated questions of fact.
viii) As discussed supra, the above said issues involved complicated questions of fact, which this Court cannot go into. Therefore, the petitioner and respondent No.5 are at liberty to raise the 12 (2004) 3 SCC 553 13 (2020) 5 ALD 561 16 KL,J W.P.No.17249 of 2021 said issues, pleadings etc., before appropriate Forum including the proceedings in O.S. No.80 of 2021 and Arb. Case No.4 of 2020.
ix) The only issue that falls for consideration before this Court in the present Writ Petition is whether the 2nd Respondent can issue impugned proceedings, dated 14.07.2021 keeping technical approval dated 22.01.2021 issued in favour of the 5th Respondent, in abeyance on the ground that the Petitioner herein has not paid the balance sale consideration to the 5th Respondent in terms of the registered sale deed dated 09.02.2021.
x) As discussed supra, there are disputes pending between the Petitioner and the 5th Respondent with regard to the said balance sale consideration, cheques issued by the Petitioner and the same were reflected in the said sale deed. According to the Petitioner herein the said cheques were dishonoured. The 5th Respondent has already initiated proceedings for the offence under Section 138 of the Negotiable Instruments Act. It has also filed a suit O.S.No.80 of 2021 for recovery of the above said amount from the Petitioner herein. The above said Arbitration Case No.4 of 2020 pending between the 5th Respondent and M/s. Saketh Satwik LLP Ltd. The Petitioner herein, after seeking permission from the Court below, deposited the said amount. There is no challenge to the said common order dated 15.09.2021 passed by the Court below in I.A. 487 of 2021 and I.A. No. 772 of 2021 in O.S. No. 80 of 2021 dated 15.09.2021. Thus, the said order attained finality. 17
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xi) Thus, the Petitioner herein has deposited the said amount before the Court below and filed a copy of the same before the 2nd Respondent along with a letter dated 29.09.2021. The Petitioner herein had requested the 2nd Respondent to withdraw the impugned proceedings dated 14.07.2021 to consider the change of name and permit the Petitioner to proceed with the construction. In view of the said facts, according to this Court, the 2nd Respondent has to consider the said aspects and also the representation dated 20.09.2021.
xii) As rightly contended by the learned counsel for the petitioner, non-payment of sale consideration will not invalidate the very sale itself as held by the Hon'ble Apex Court in Dahiben (supra), Vidhyadha (supra).
xiii) It is also not in dispute that the 2nd Respondent has the power to revoke/cancel the technical approval issued by it on the ground of suppression and misrepresentation of facts under Section 22 of the HMDA Act. Whereas, in the present case, there is no request by the 5th Respondent to cancel technical approval dated 22.01.2021 and in fact, it was obtained by respondent No.5 itself. The request of the Petitioner is to change the name in the technical approval and other permissions, is pending with the 2nd Respondent. According to this Court, there is no suppression and misrepresentation of facts by the petitioner. Therefore, Section 22 of the HMDA Act has no application to the facts of the present case.
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xiv) As recited in the above said registered sale deed vide Doc.No.5800 of 2021, dated 09.02.2021, the Petitioner herein, being the purchaser of the subject property, has taken the entire responsibility and deposited the balance sale consideration in the Court. The said contentions of the 5th Respondent are not acceptable and even the decisions relied upon by the 5th Respondent have no application to his case.
xv) Therefore, respondent No.5 cannot claim that it has an obligation under the registered mortgage deed executed by it in favour of respondent No.2, there is provision for prosecution etc. As discussed supra, respondent No.5 has transferred the right and title etc. over the subject property in favour of the petitioner and the petitioner has takes the entire responsibility under the said registered sale deed.
8. CONCLUSION:
i) In view of the above said submissions, considering the fact that the Petitioner has already deposited the said amount of Rs.3,53,27,404/- (Rupees three Crores fifty three Lakhs, twenty seven Thousand, four Hundred and Four only), the impugned proceedings dated 14.07.2021 are liable to be set aside.
ii) In the result, the Writ Petition is allowed. The impugned proceedings bearing No.Lr.No.22943/MED/R1/U6/HMDA/2019, dated 14.07.2021 issued by the 2nd Respondent are set aside. Further the 2nd 19 KL,J W.P.No.17249 of 2021 Respondent is directed to consider the request of the Petitioner for change of name in the technical approval and other related permissions as expeditiously as possible. The Respondent Nos.2 and 3 shall permit the Petitioner to proceed with the construction. However, it is left open to the petitioner and the 5th Respondent to raise all the contentions with regard to validity of MOU etc., in appropriate forum including in O.S. No.80 of 2021 and Arb. Case No.4 of 2020.
iii) In the circumstances of the case, there is no order as to costs. As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J Date:04.10.2021 Vvr/Mgr