THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 12101 OF 2022
O R D E R:
This Writ Petition is filed seeking the following relief: " to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents herein in issuing Ex.P1 rejection letter dated 25.02.2022 in respect of building permission application bearing file NO. 004873/GHMC/2676/SLP2/2021-BP dated 25.02.2022 as illegal, arbitrary and contrary to the provisions of the GHMC Act and the common order passed in W.P.Nos. 14881 and 14885 of 2020 dated 27.11.2020 and set aside the same and consequently, direct the respondents herein to grant building permission to me in respect of Plot No. 453, H.No. NA, Survey No. 11/8, 11/9, 11/10, 11/11 of Survey No. 11 situated at 181910 as prayed in building permission application bearing file No. 004873/GHMC/2676/SLP2/2021-BP dated 25.02.2022 as directed in W.P.Nos 14881 and 14885 of 2020 dated 27.11.2020 and pass such other order or orders may deem fit and proper in the circumstances of the case"
2. Sri S. Sridhar, learned counsel for the petitioner submits that petitioner is absolute owner and possessor of residential open land bearing Plot No. 453 admeasuring 417 square yards in Survey Nos. 11/8, 11/9, 11/10 and 11/11 Part of Survey No. 11 situated at Ayyappa Colony, Khanamet Village and purchased the same through a registered sale deed dated 24.01.1996. He submits that petitioner has made an Application to the respondents seeking building permission on 2 01.12.2021, then a shortfall intimation letter dated 12.12.2021 was issued. It is submitted that as per the said shortfall notice, the building plan submitted by the petitioner is not satisfactory and the proposals are returned as the matter is sub judice. It is further submitted that thereafter, the petitioner has filed Writ Petition No. 1113 of 2022 before this Court challenging the shortfall intimation letter dated 12.12.2021. It is submitted that this Court by order dated 06.01.2022 disposed of the said Writ Petition setting aside the shortfall intimation letter dated 12.12.2021 and directed the respondents herein to consider the building permission afresh and pass necessary orders. Learned counsel submits that the respondents, having considered the said Application rejected it on the ground that as per the list furnished by the ULC Authority, subject property belongs to the government and it also discloses that special leave petitions are filed in Hon'ble Supreme Court and the stay order is passed in the said SLP. He submits that the Division Bench in common judgment dated 12.09.2022 in Writ Petition Nos. 20407 of 2008, 9714 and 16658 of 2009 held that the Authority under ULC has no power or jurisdiction over Gurukul Ghatkesar Trust lands and that the order of the Commissioner, Appeals, ULC dated 24.01.2007 is without jurisdiction and against the said 3 judgment, one Arya Pratinidhi Sabha filed SLP (Civil) Appeal No. 19015 of 2013 aggrieved by the findings of the Division Bench that the provisions of the Endowments Act, 1987 have application over the Gurukul Ghatkesar Trust. The Hon'ble Supreme Court on 19.11.2013 stayed the direction contained in the impugned judgment therein. Learned counsel submits that thereafter, number of appeals were filed before the Hon'ble Supreme Court including the respondent government but no relief was granted and all applications filed for grant of interim orders are tagged on to SLP No. 35744 of 2013 and at no point of time, the Hon'ble Supreme Court has granted stay on the subject lands with regard to alienations, registration and construction. He submits that this action of the respondents is contrary to Sections 428 and 429 of the Greater Hyderabad Municipal Corporation Act, 1955. He further submits that when the building permissions were rejected in respect of Plot Nos. 140, 141, 154, 155, 172 and 173 in Survey No. 78 of Hafeezpet Village, Serilingamapally Mandal, Ranga Reddy District on the ground that the said lands are government lands, the owners of the said plots filed Writ Petition Nos. 14881 and 14885 of 2020 before this Court challenging the rejection orders passed by the respondents. Then the Division Bench of this Court considering 4 the scope and powers of the respondents herein under the provisions of the GHMC Act in respect of building permissions, has set aside the rejection orders and directed the respondents to grant building permission to the owners. He submits that the respondents are bound to consider the building permissions irrespective of the other issues if they are prima facie satisfied with the title to the property.
3. A counter-affidavit has been filed on behalf of respondents. Learned Special Government Pleader submits that the matter is sub judice before the Hon'ble Supreme Court and the respondents have rightly rejected the application. He submits that the land over which the petitioner is claiming building permission is surplus land under ULC Act and government land, as such there cannot be any permission. He has relied on the order of the Hon'ble Supreme Court in Ritesh Tewari v. State of Uttar Pradesh1. Paragraph 17 of the said order reads as under:
" The ex parte orders of assessment of surplus land against the original tenure-holders have been placed on record. Admittedly, the said assessment orders had not been challenged by them and attained finality. In view of the provisions of Section 5 and 10 of the 1976 Act, transfer of such land by them in favour of anyone was not only prohibited but null and void."1
(2010) 10 Supreme Court Cases 677 5
4. Petitioner, basing on a registered sale deed has approached the respondents seeking building permission. While granting permission, the respondents have to look only at the prima facie title to the property and the possession of the applicant. Apart from those, they cannot consider any other issues. The respondents, basing on a list furnished by the ULC authorities have passed the rejection order which is contrary to the settled position of law.
5. At this juncture, it is appropriate to have a look at the judgment in Hyderabad Potteries Private Limited v. Collector, Hyderabad District2, wherein it is observed that:
" Of course, the Commissioner has to consider the objections, if any, raised for grant of permission. But, an objection raised by a member of the Committee itself would not be enough to reject the application for grant of permission. The Commissioner is required to make pragmatic assessment of the material available on record and decide the question of prima facie title and lawful possession of the applicants. The applications for grant of permission cannot be rejected solely on the basis of TSLR entries. After all, the decision to grant permission itself would not confer any title upon the applicant, nor it would take away the rights of the objector (s), whether the Government or any individual, for asserting their right, title and interest in the land in respect of which permission has been granted and dispute the title in any manner known to law. Similarly, the Commissioner is not entitled to decide any disputed questions of title or the ownership. All that the 2 2001(3) ALD 600 6 Commissioner required to do is to find out pram facie title and lawful possession of the applicant and obviously such consideration is confined to only for the purpose of granting permission and nothing more."
In the light of the law laid down in the above judgment, while granting permission to the applicant, the respondents can only look at the prima facie title and lawful possession.
6. It is also the case of the petitioner that in respect of the several plot owners, permission was granted. Mere granting permission will not confer any title to the petitioner. If the stand of the government is that the property vests with the government, they are always at liberty to initiate appropriate proceedings against the petitioner. As far as granting building permission is concerned, the municipal corporation except looking at the prima facie title and legal possession, cannot seek any NOC or they cannot rely on any other document.
7. In the light of the above discussion, the proceedings dated 25.02.2022 are set aside and the respondents are directed to consider the building permission without looking into the list furnished by the ULC department.
8. The Writ Petition is accordingly, allowed. No order as to costs.
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9. The Miscellaneous Applications, if any shall stand automatically closed.
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LALITHA KANNEGANTI, J 15th November 2022 ksld 8