THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 17025 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 1 to 3 in issuing Ex.P1 shortfall letter dated 24.12.2021 in respect of building permission application bearing file No. 005440/GHMC/2939/SLP2/2021-BP dated 20.12.2021 and refusing to consider the same as illegal, arbitrary, discriminatory and in violation of Article 14 of Constitution of India and contrary to the provisions of GHMC Act and contrary to the 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 1 to 3 herein to grant building permission as prayed for in application bearing file No. 005440/GHMC/2939/SLP2/2021-BP dated 20.12.2021 as directed in W.P.Nos. 14881 and 14885 of 2020 dated 27.11.2020 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. Learned counsel for the petitioner Sri S. Sridhar submits that the 2nd petitioner is the absolute owner and possessor of house bearing No. 2-31/8/A/8/1 admeasuring 140 square yards in Survey Nos. 41/12 and 41/13 situated at Izzatnagar, Khanamet Village, Serilingampally Mandal, Ranga Reddy District, having purchased the same by way of a registered sale deed dated 21.05.2020. It is submitted that the 1st petitioner is the absolute owner and possessor of Plot Nos. 2 14, 15 and 16, admeasuring 533 square yards in Survey Nos. 41/12 and 41/13 situated at Izzatnagar, Khanamet Village, Serilingampally Mandal, Ranga Reddy District, having purchased the same by way of a registered sale deed dated 04.06.2020. It is also submitted that when the vendors of the 1st petitioner presented the sale deed for registration, it was refused on the ground that the property is a government land, then the vendors filed Writ Petition NO. 9315 of 2019 which was allowed directing the registering authorities to receive the document and process the same without reference to notification issued by the 4th respondent. Learned counsel submit that the petitioners have submitted an Application dated 20.12.2021 before the respondents for construction of residential complex in the above property consisting of 1 stilt + 5 upper floors. He submits that Respondents 1 to 3 have issued the impugned shortfall intimaoin letter dated 24.122021 stating that the subject lands are government assigned lands and are attracted by the provisons of Telangana Assigned Lands (Prohibition of Transfers) Act, 1977.
Learned counsel submits that this action of the respondents in issuing the shortfall letter dated 24.12.2021 is contrary to law. It is submitted that whenever an Application 3 for building permission is filed, the respondents are bound to consider the same if they are prima facie satisfied with the title and possession of the applicant. Here, the respondents though having satisfied with the prima facie title have gone into the other aspects which are irrelevant and rejected the Application of the petitioner. He submits that this order of the respondents is contrary to the law laid down by this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad District1. It is submitted that when plot Nos. 140, 141, 154, 155, 172 and 173 of Survey No. 78 of Hafeezpet Village were rejected on the ground that the said lands are government lands, the owners of plots filed Writ Petitions No. 14881 and 14885 of 2020 challenging the rejection orders. The Division Bench of this Court has set aside the said orders and directed the respondents to grant building permission to the applicants. It is submitted that in spite of the repeated orders passed by this court, the respondents on extraneous reasons rejected the building permission.
3. A counter-affidavit has been filed by the respondent Corporation. Sri Sampath Prabhakar Reddy, learned Standing Counsel submits that the Corporation has issued the shortfall 1 2001(3) ALD 600 4 notice dated 24.12.2021 basing on the report of the District Collector that the lands in Survey Nos. 41/12 and 41/13 situated at Khanamet Village are government lands. Further, the order in Writ Petitions No. 14881 and 1885 of 2020 dated 27.11.2020 is not applicable to the fats of the present case.
4. In Hyderabad Potteries case (cited supra), 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 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 by this Court in the above judgment, while granting permission to the applicant, they can 5 only look at the prima facie title and lawful possession, apart from that they cannot insist for NOC from the Revenue or any other department. It is the specific case of the petitioner that the petitioners have purchased the property by way of registered sale deeds. Further, it is the specific case of the petitioners that there are several buildings constructed and the municipality has granted permission. The counter is very much silent on this aspect, then it has to be presumed that they are admitting the fact that they have granted permission in the very same locality. When it is the case of the respondents that Survey No. 41/12 and 41/13 are government land and they are not granting permission, it is not stated in the counter on what basis they have granted permission to other persons.
5. In the light of the law laid down in Hyderabad Potteries Case (supra) and also in the light of the order passed by the Division Bench of this Court in Writ Appeal No. 403 of 2022, dated 05.07.2022, the respondents shall process the building Application of the petitioner in accordance with law without taking into consideration the report of the District Collector.
6. The Writ Petition is accordingly, allowed. There shall be no order as to costs.
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7. The miscellaneous Applications, if any shall stand closed.
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LALITHA KANNEGANTI, J 26th October 2022 ksld 7 8