THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No.38612 of 2022
O R D E R:
The writ petition is filed seeking the following relief: "... to issue a Writ mandamus declaring the action of Respondent No.3 in issuing the permission cancellation notice vide Notice Nos. G1/107025/1378/JALP/2022 and G1/118256/118256/1378/JALP/ 2022 dt.12-9-2022 as illegal, arbitrary and violative of principles of natural justice and consequently direct the Respondents not to interfere with the petitioner property bearing Plot Nos.103 and 106 Part in Sy.No. 146 and 147 situated at Balapur Village and Mandal, under Balapur Gram Panchayat, Jalpally Municipality, Rangareddy District and .....".
2. Mr. V.T.Kalyan, learned counsel for the petitioner submits that the petitioner is owner and possessor of the subject properties having purchased the same by way of registered sale deed. He submits that the petitioner has also applied for LRS and the same is granted to the petitioner and thereafter, the petitioner has made an application seeking building permission in respect of plot No.103 and the same was granted on 11.04.2022. He submits that thereafter, a show cause notice was issued to the petitioner on 27.08.2022 stating that has obtained the building permission without disclosing the fact that there is a title dispute pending in respect of the said property vide O.S.No.1157 of 2018 and on verification, they found that there is a pending suit and hence, they have directed the petitioner to submit his explanation and the petitioner has submitted his explanation to the said notice on 03.09.2022.
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3. Learned counsel for the petitioner submits that a final order is passed on 12.09.2022 whereby the respondents have revoked the building permission which is granted in favour of the petitioner stating that the petitioner has failed to state about the pending suit and the litigation between the parties and that amounts to suppression of fact, as such the permission that is granted to the petitioner has been cancelled as per Section 176(9) of the Telangana Municipalities Act, 2019.
4. Mr. D. Raghavendar Rao, learned counsel appearing for the unofficial respondent submits that he has filed a suit i.e. O.S.No.1157 of 2018 for declaration of title and cancellation of sale deeds and without disclosing the said facts, the petitioner has made an application and obtained the building permission. It is stated that when the representation of the unofficial respondent was not considered, they have filed a writ petition i.e.W.P.No.11396 of 2019 which was disposed of by order dated 08.11.2021. It is stated that in the said order, the respondents are directed to consider the representation and the learned counsel submits that in the said order, there is an observation that the construction activity is being carried out without layout approval from the HMDA and without any permission from the District Collector. It is stated that when a show 3 cause notice is issued about suppression of facts, the petitioner failed to give any response why he has suppressed the said facts.
5. Learned counsel for the unofficial respondent has relied on the order passed by the Division Bench of this court on 24.08.2021 in Fortuna Infrastructure India Pvt. Ltd. Vs. State of Telangana and others in Writ Appeal No.162 of 2021 and he submits that in the said order, it is held that the suppression by 7th respondent therein of the decree in O.S.No.1402 of 1996 in favour of the appellant and pendency of the claim petition E.A.No.81 of 2007 filed by him therein was a deliberate act of deception intended to gain unfair advantage over the appellant and the learned Division Bench has come to the conclusion that there was a suppression on behalf of the 7th respondent therein and has allowed the appeal and also directed the 7th respondent therein not to make any further construction. He submits that as there is suppression and misrepresentation of facts by the petitioner, the respondents have cancelled the building permission granted in favour of the petitioner and there is no illegality in the said order.
6. Learned standing counsel for the respondent municipal corporation has argued in similar lines and submits that in view of the suppression of the material facts by the petitioner, the 4 respondents have passed the order under Section 176(9) of the Telangana Municipalities Act, 2019.
7. The order impugned dated 12.09.2022 is passed only on the ground that a suit is filed by the unofficial respondent herein seeking declaration and other reliefs and that fact was not brought to the notice of the respondents and as such, it amounts to suppression of facts. The undisputed facts are that there are no orders passed against or in favour of the petitioner or the unofficial respondent.
8. Learned counsel for the unofficial respondent has relied on the order passed by a Division Bench of this Court in Writ Appeal No.162 of 2021 and states that it is a suppression of fact by the petitioner. In the said Writ Appeal, the Division Bench has observed that the learned single judge in the impugned order has not gone into the aspect as to whether there is disclosure by 7th respondent of the facts before the building permission was obtained by the 7th respondent on 14.12.2018 and whether it would have affected the decision of the Commissioner to grant or withhold permission to him and also observed that another important question missed the attention of the learned single judge was the conduct of the Commissioner of 2nd respondent in referring the dispute to be decided by him under Section 450 of the Act to the legal adviser of 2nd respondent for his opinion, obtaining such legal opinion on 5 02.07.2019 and then rejecting the appellant's applications for revocation of permission granted to the 7th respondent on the basis of such legal opinion.
9. Coming to the facts of the case, the said judgment of the Division Bench is not applicable on two grounds. One is that even if the said fact is not brought to the notice of the Commissioner, now just because of the pending declaratory suit before a court, cannot be a ground for the Commissioner not to grant any permission in favour of the applicant provided he satisfies all the other requirements. Under the TS-bPASS Act where the application for building permission is made, in the application form, there is no column asking the petitioner to disclose about the details of pending cases. Earlier, this court has passed several orders wherein the Special Chief Secretary, Municipal Administration is directed to take steps to incorporate the column in the application so that it can put a quietus to the complaints under Section 450 of GHMC Act as well as 176(9) of the Telangana Municipalities Act, 2019. Hence, this court is of the view that without having a column in the application form about the details of pending litigation, there cannot be an implicit understanding that the petitioner has to disclose everything, particularly in this case, where there are no orders passed against the petitioner. In view of the same, this court is of the view that the 6 respondents cannot revoke the building permission on suppression and misrepresentation of facts.
10. Further, the second aspect is that the respondents have granted the building permission without the petitioner having layout approval/regularization from the HMDA. In that view of the matter, the respondents shall consider this particular aspect of not having layout approval and the land dues and pass appropriate orders.
11. The petitioner shall submit his representation or reply with regard to the LRS proceedings and the layout permission within a period of (1) week from today and thereafter, within (15) days, the respondents shall pass appropriate orders in accordance with law. Till such time, the petitioner shall not make any construction.
12. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
The Miscellaneous Applications, if any shall stand automatically closed.
_______________________________ LALITHA KANNEGANTI, J 7th December, 2022 gvl