THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.155 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. M.Dhananjay Reddy, learned Standing
Counsel for Greater Hyderabad Municipal Corporation
(GHMC) for the appellants and Mr. P.Radhive Reddy,
learned counsel for respondent No.1/writ petitioner.
2. This intra-court appeal has been filed by GHMC and its officials against the order dated 01.12.2022 passed by the learned Single Judge disposing of W.P.No.43031 of 2022 filed by respondent No.1 as the writ petitioner.
3. Respondent No.1 had filed the related writ petition seeking the following relief:
To issue an order or direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd and 4th respondents herein in rejecting my application vide File No. 2/C26/13493/2020, dated 03.10.2020, for building 2 plan approval vide Letter No. 2/C26/13493/2020 dated 13.10.2020 with respect to Petitioner's house Plots Nos. P-77, P-78 and P-79 of Mahadevapuram Residential Project, situated in Sy. Nos. 329/9 and 329/7 (Part) of Gajularamaram Village Qutuballapur Mandal even though the subject properties were regularized by the 2nd respondent vide Proceedings. No. LRS/2666/ 1351/C15/NZ/2008, dated 19.11.2011, in terms of G.O.Ms. No. 902, MA, dated 31.12.2007, as arbitrary, illegal, null and void, against norms of public policy and principles of natural justice and in violation of fundamental rights guaranteed under Constitution of India apart from violative of Article 300-A of the Constitution of India and to set aside the same and consequently to direct the respondent authorities to process her application in File No. 2/C26/13493/2020, dated 03.10.2020 without going into the aspect of title of subject matter plots.
4. Grievance expressed by respondent No.1 before the learned Single Judge was with regard to the shortfall notice dated 13.10.2020 issued by GHMC to respondent No.1 stating amongst others that the Tahsildar, Quthbullapur Mandal, vide letter dated 05.01.2018 had informed that land admeasuring Acs.255.28 guntas in Survey No.329 of Gajularamaram Village is being treated as government land 3 and continues to remain in the possession of the government.
5. The aforesaid remarks were made in the context of building permission sought for by respondent No.1 from GHMC for construction of residential building consisting of one floor in Plot Nos.P-77, P-78 and P-79 in Survey Nos.329/9 and 329/7 (part) situated at Gajularamaram Village, Quthbullapur Mandal, Medchal District (subject land).
6. According to respondent No.1, she had purchased the subject land admeasuring 600 square yards by way of a registered sale deed on 15.12.2011. Vendor of respondent No.1 had purchased the same by a registered sale deed in the year 2003. According to respondent No.1, she had made an application for regularisation of the subject land before the competent authority which was granted vide proceedings dated 19.11.2011. Respondent No.1 had made an application to GHMC seeking building permission on 03.10.2020. However, Town Planning Officer of GHMC 4 issued impugned letter dated 13.10.2020 which for all intent and purpose amounted to rejection of building permission. Aggrieved, the related writ petition came to be filed.
7. Learned Standing Counsel for GHMC had sought for time to file counter affidavit. However, relying on the earlier decision of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad District1, learned Single Judge disposed of the writ petition directing the appellants to process the application of respondent No.1 for building permission without taking into consideration letter of the Tahsildar dated 05.01.2018 subject to compliance of other shortfalls by respondent No.1.
8. Learned Standing Counsel for the appellants submits that learned Single Judge ought to have granted time to the appellants to file counter affidavit. It was not justified to dispose of the writ petition without granting reasonable 1 2001 (3) ALD 600 5 opportunity to the contesting respondents (appellants herein) to file counter affidavit. That apart, the subject land is a government land. On government land no building permission can be granted by GHMC. Without making the government a party, respondent No.1 had filed the writ petition which was accordingly disposed of. He, therefore, submits that order of the learned Single Judge may be set aside.
9. Per contra, Mr. P.Radhive Reddy, learned counsel for respondent No.1 submits that he was present in the hearing before the learned Single Judge. Though learned Standing Counsel for GHMC had initially sought for time, nonetheless as the hearing progressed, learned Standing Counsel participated in the hearing and contested the proceedings. That apart, the law on this point is very well settled by the decision rendered in Hyderabad Potteries (supra) which decision has since been followed by a Division Bench of this Court. Therefore there is no merit in the writ appeal which should be dismissed. 6
10. Submissions made by learned counsel for the parties have been duly considered.
11. The decision of this Court in Hyderabad Potteries (supra) has been affirmed by the Supreme Court in State of Andhra Pradesh v. Hyderabad Potteries2. Thereafter, in Commissioner v. Syed Iftekhar Ahmed (W.A.No.403 of 2022, dated 05.07.2022), it has been held that municipal authority is required to make a pragmatic assessment of the materials on record and decide the question of prima facie title and lawful possession of the applicant. Application for grant of building permission cannot be rejected on the basis of TSLR entries. All that municipal authority is required to do is to find out prima facie title and lawful possession. Following the aforesaid decision, this Court in Greater Hyderabad Municipal Corporation v. M/s. Sipil Infra Pvt. Ltd. (W.A.No.67 of 2023, dated 19.01.2023) held that if the State has a better claim to the subject property, it has the remedy to establish its claim. Till such time, it cannot have a veto over grant of building 2 (2010) 5 SCC 382 7 permission by the municipal authority if the latter is prima facie satisfied about the title and possession of the subject land by the applicant.
12. Therefore, we are of the view that merely on the basis of the letter of Tahsildar dated 05.01.2018, appellants could not have declined building permission to respondent No.1. To that extent, learned Single Judge was justified in directing the appellants to consider the prayer for building permission made by respondent No.1 de hors the letter of the Tahsildar dated 05.01.2018.
13. Insofar grant of time to file counter affidavit is concerned, we are of the view that the same depends upon the facts and circumstances of each case. In many cases, based on the instructions received by the Standing Counsel or Government Pleader from the respective departments, cases are decided. In this case what was under challenge is the shortfall notice dated 13.10.2020. By filing affidavit appellants could not have improved upon the shortfall notice dated 13.10.2020. In fact, the law on this point is 8 well settled. An order must be capable of being defended on the basis of the contents contained in the order itself. The same cannot be improved upon by way of affidavit (see Commissioner of Police v. Gordhandas Bhanji3 and Mohinder Singh Gill v. Chief Election Commissioner4).
14. In view of the above, writ appeal is dismissed.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ N. TUKARAMJI, J 03.02.2023 vs 3 AIR 1952 SC 16 4 (1978) 1 SCC 405