Telangana High Court

M/S. Fortuna Infrastructure ... vs State Of Telangana on 24 August, 2021

Bench: M.S.Ramachandra Rao, T.Vinod Kumar

     HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                  AND
        HONOURABLE SRI JUSTICE T.VINOD KUMAR

                    WRIT APPEAL No.162 of 2021

JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)


       This Appeal is preferred against the order dt.08.03.2021 in

W.P.No.28185 of 2019 passed by a learned single Judge of this Court.


2.     The 1st respondent in this Appeal is the State of Telangana,

represented by its Principal Secretary, Municipal Administration and

Urban Development Department, 2nd respondent is the Greater

Hyderabad Municipal Corporation, represented by its Commissioner,

respondent Nos.3 to 5 are the employees of the said Corporation,

6th respondent is the Deputy Director of Survey and Land Records,

Hyderabad, and 7th respondent is a private party.

The Municipal permission dt.14.12.2018 granted to respondent No.7

3. A building permission dt.14.12.2018 was issued by the Greater

Hyderabad Municipal Corporation (GHMC) (2nd respondent) in

favour of 7th respondent in respect of land in Sy.No.227 (old)

corresponding to T.S.No.20/1/A, 20/2 and 20/3, Block No.F in Ward

No.87 situated at Somjiguda, Hyderabad.

The applications dt.19.1.2019 and 13.3.2019 of appellant to revoke the said permission invoking Sec.450 of the GHMC Act, 1955

4. The appellant filed applications on 19.01.2019 and 13.03.2019

before the 2nd respondent contending that the said building permission ::2:: MSR,J & TVK,J wa_162_2021

was obtained by 7th respondent by playing fraud and

misrepresentation and it was liable to be revoked in exercise of the

powers conferred on the Commissioner under Section 450 of the

Greater Hyderabad Municipal Corporation Act, 1955 (for short 'the

Act').

5. The appellant contended that it is the absolute owner and

possessor of land admeasuring 19013 sq. yds equivalent to Ac.3.39

gts out of Ac.14.39 gts in old Sy.No.227 equivalent to new

Sy.T.S.No.20/1/A, 20/2 and 20/3, Ward No.87, Block-F situated at

Somajiguda, Hyderabad by virtue of a sale deed dt.17.11.2007 being

Doc.No.2473 of 2007 executed by the IV Additional Senior Civil

Judge, City Civil Court, Hyderabad on behalf of Nawab Mohammed

Mazharuddin Khan and others pursuant to a decree dt.27.11.1996 in

O.S.No.1402 of 1996 by the IV Additional Judge, City Civil Court,

Hyderabad in E.P.No.155 of 2002 therein.

6. Appellant pointed out that M/s.Pradeep Constructions

represented by 7th respondent filed a Claim Petition E.A.No.81 of

2008 in the said E.P. invoking Order XXI Rule 97 C.P.C. and that the

same is pending, but suppressing the same, the 7th respondent applied

for permission and obtained it on 14.12.2018.

The order dt.4.12.2019 of the Commissioner of the GHMC ( 2nd respondent) rejecting appellant's applications under Sec.450 of the Act

7. The Commissioner of the 2nd respondent Corporation passed an

order in proceedings No.1/C17/13164/2018 HO dt.04.12.2019 ::3:: MSR,J & TVK,J wa_162_2021

rejecting the request of the appellant to revoke the permission granted

to the 7th respondent for building permission on 14.12.2018.

8. In the said order, it is stated in para-16 that on receipt of

pleadings from the parties, matter was referred to the Legal Adviser of

2nd respondent for his opinion; that the Legal Adviser, through his

opinion dt.02.07.2019, had opined that 7th respondent was entitled for

consideration of the building permission and objection petitions are

liable to be rejected, and that the 2nd respondent Corporation need not

cancel the building permission already granted to the 7th respondent.

It is also observed that grant of building permission had been

recommended earlier by the Deputy Director, Survey and Land

Records (6th respondent)/AC (Estates) of 2nd respondent and legal

opinion offered by the Legal Adviser of 2nd respondent to the effect

that 7th respondent had established title.

9. The Commissioner of 2nd respondent stated that earlier the

appellant had filed W.P.No.6173 of 2019 for a direction to him to

dispose of the applications filed for cancellation of building

permissions under Section 450 of the Act, that the High Court had

directed disposal of the said applications, but the High Court had not

specified that the said building permission already granted needs to be

revoked.

10. Then a reference is made by the Commissioner of 2nd

respondent to another suit O.S.No.701 of 2019 filed by one Mir

Dawar Baquri before the IV Junior Civil Judge against 7th respondent ::4:: MSR,J & TVK,J wa_162_2021

and the 2nd respondent (to which the appellant is not a party); and after

noting that E.A.No.81 of 2007 is pending in E.P.No.37 of 2008 in

O.S.No.1402 of 1996, a finding is also recorded that the property

covered by the decree in O.S.No.1402 of 1996 is different from the

property to which building permission is granted to the 7th respondent.

11. He then stated that from 1929 onwards, on the basis of various

registered documents, the 7th respondent has prima facie title, that the

dispute between the appellant and 7th respondent is pending in the

Courts and not settled in favor of the appellant, and the 2nd respondent

is not restrained from considering the building permission nor was it

directed to cancel the building permission.

W.P.No.28185 of 2019

12. This order was questioned by the appellant in W.P.No.28185 of

2019.

The order dt.8.3.2021 in WP.No.28185 of 2020

13. The learned Single Judge held that Commissioner of

2nd respondent cannot go into the issues of title, that he had

elaborately dealt with the objections of the appellant and found that

appellant has raised serious disputed questions of title and facts which

cannot be gone into by the Commissioner, and has relegated the

parties to the Civil Court.

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                                                            wa_162_2021

14. He therefore upheld the order dt.04.12.2019 passed by the

Commissioner of 2nd respondent and refused to stay the building

permission granted to the 7th respondent.

15. He also observed that the appellant was not in possession of the

property in question, and since the appellant alleges that 7th

respondent had encroached his property, the appellant is permitted to

approach the competent Civil Court but not in the High Court.

16. He observed that in E.P.No.37 of 2008 filed by the appellant,

which is pending before the Executing Court for adjudication, identity

of the property, rival claim of 7th respondent and the entitlement of

appellant to be in possession, have to be gone into; and when the

matter is pending before the Civil Court for adjudication, the High

Court is not inclined to deal with them.

17. The learned Single Judge then observed that any constructions

made by 7th respondent in the subject property shall be subject to the

orders of the Execution Court in E.P.No.37 of 2008 and directed the

Executing Court to pass orders on its own merits irrespective of any

observations made by the High Court.

The instant Writ Appeal

18. Assailing the same, this Appeal is filed.

19. Sri V.Srinivas, learned Senior Counsel appearing for Sri

V.Chithralekha, learned counsel for petitioner contended firstly that

the question which the learned Single Judge had to consider was ::6:: MSR,J & TVK,J wa_162_2021

whether there was any error in the order passed by the Commissioner

of 2nd respondent Corporation in exercise of the powers conferred on

him under Section 450 of the Act; and under the said provision, the

Commissioner of the 2nd respondent Corporation is empowered to

revoke any permission granted to proceed with any building or work,

if there was material misrepresentation and fraudulent statement made

by the applicant for such permission; in the instant case, it is not the

case of the 2nd respondent or 7th respondent that 7th respondent had

disclosed about its claim petition E.A.No.81 of 2008 in E.P.No.37 of

2008 in O.S.No.1402 of 1996 on the file of the V Senior Civil Judge,

City Civil Court, Hyderabad; and this aspect of suppression of facts

had to be gone into by the Commissioner while considering

appellant's applications under Section 450 of the Act to revoke the

permission granted to the 7th respondent, but he did not dealt with this

aspect of suppression of fact by 7th respondent at all.

20. He next contended that the Commissioner of the 2nd respondent

had stated in para-16 that after receipt of pleadings of parties, he had

referred the matter to the Legal Adviser of the of 2nd respondent for

his opinion, that the Legal Adviser gave opinion on 02.07.2019 in

favour of 7th respondent, and placing reliance on the legal opinion, the

impugned order had been passed.

Leaned counsel for appellant contended that the Commissioner

of 2nd respondent cannot outsource his quasi judicial function to the

Legal Adviser of 2nd respondent, and such consultation and taking of ::7:: MSR,J & TVK,J wa_162_2021

legal opinion before passing the impugned order and relying on it

vitiates the order dt.04.12.2019 passed by the Commissioner of the 2nd

respondent.

21. He also stated that in the impugned order passed by the

Commissioner there is reference to the suit in O.S.No.701 of 2019

filed by Mir Dawar Baquri, but appellant has nothing to do with the

said suit, and this irrelevant consideration is also the basis for the

order passed by the Commissioner on 04.12.2019.

22. He further contended that the Commissioner of 2nd respondent

cannot refuse to exercise jurisdiction conferred on him under Section

450 of the Act on the ground that the High Court in W.P.No.6173 of

2019 did not specify that building permission already granted to the

7th respondent needs to be revoked and that unless such direction is

given by the High Court, he cannot exercise power under Section 450

of the Act.

23. Sri N.Ashok Kumar, learned Standing Counsel appearing for

respondent Nos.2 to 5 sought to contend that there is nothing wrong if

the Commissioner of the 2nd respondent Corporation takes legal

opinion while exercising power under Section 450 of the Act. He

contended that the Legal Adviser of the 2nd respondent Corporation,

in his opinion dt.02.07.2019, had rightly stated that the building

permission granted to the 7th respondent need not be cancelled in view

of the prima facie title, and the appellant's application for revocation

of such permission granted to 7th respondent should be rejected.

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                                                                   wa_162_2021

He pointed out that in para-6 of the counter-affidavit filed in

W.P.No.28185 of 2019, the 3rd respondent (who filed counter on

behalf of respondent Nos.2 to 5) stated that in view of legal opinion

tendered, the building permission already granted to the

7th respondent is not revoked. He asserted that disputed questions of

title cannot be gone into by the Commissioner of 2nd respondent.

24. Sri V.Ravinder Rao, learned Senior Counsel appearing for Sri

M.Vishnuvardhan Reddy, learned counsel for 7th respondent also

supported the order passed by the Commissioner of 2nd respondent on

04.12.2019 and the order passed by the learned Single Judge. He

sought to contend that the Commissioner did not rely upon the legal

opinion dt.02.07.2019 of the Legal Adviser of the of 2nd respondent,

and he independently considered the matter.

The consideration by the Court

25. We have noted the submissions of the parties.

26. Section 450 of the Act states:

"450. If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under section 428 or 433 or in the further information if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission."

27. Under this provision, the Commissioner of GHMC has power

to cancel any permission obtained for making building construction, if ::9:: MSR,J & TVK,J wa_162_2021

he is satisfied that such permission was granted in consequence of any

material misrepresentation or fraudulent statement by the applicant for

building permission.

28. No material is placed before this Court by the 7th respondent

that he had disclosed to the Commissioner of GHMC about the

litigation pending between it and the appellant i.e. E.A.No.81 of 2008

in E.P.No.37 of 2008 in O.S.No.1402 of 1996 before the V Senior

Civil Judge, City Civil Court, Hyderabad or that appellant had

obtained registered sale deed dt.17.11.2007 from the said Court

through decree dt.27.11.1996 in O.S.No.1402 of 1996.

29. Had such information been disclosed, it is possible that the

Commissioner might have rejected the application made for grant of

Municipal permission to 7th respondent as there would be a serious

doubt as to whether he had prima facie title to the subject property or

not.

30. 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 above facts before the permission for 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.

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                                                                          wa_162_2021

31. In S.P. Chengalvaraya Naidu v. Jagannath1, the Supreme

Court held:

"A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage."

32. We have no hesitation to hold that the suppression by 7th

respondent of the decree in O. S.No.1402 of 1996 in favor of the

appellant and pendency of the claim petition EA.No.81 of 2007 filed

by him therein was a deliberate act of deception intended to gain

unfair advantage over the appellant.

33. In our opinion, the learned Single Judge ought to have

considered the mater in this perspective and his omission to do so has

vitiated his order.

34. Another important question which seems to have 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

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.





    (1994) 1 SCC 1, at page 5
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                                                                          wa_162_2021

The 3rd respondent had categorically stated in para-6 of the

counter-affidavit filed by him on behalf of respondent Nos.2 to 5 as

under:

"6. .... On the receipt of the complaints and as the building permission was already issued by the time the objection petitions were filed the matter has been referred to the legal advisor GHMC. The legal advisor, GHMC in his opinion dt.02.07.2019 has offered his considered opinion that building permission already granted to the applicant need not be cancelled as the applicant is entitled for consideration of his building permission in view of the prima facie title and the complaint petitions are liable to be rejected. The legal advisor, GHMC has also offered his consideration that the revised building application for building permission of the applicant can be considered after obtaining an undertaking/affidavit from the applicant to the effect that he would not claim equities and he would obey and would be bound by the outcome of the final orders of the Courts. In view of the legal opinion tendered, the building permission already granted is not revoked....".( emphasis supplied)

Thus it is clearly admitted that the said legal opinion

dt.02.07.2019 of the Legal Adviser of the 2nd respondent was relied

upon by the Commissioner to come to the conclusion that the building

permission already granted cannot be revoked.

The Supreme Court in Sri Jagannatha Temple Managing

Committee Vs. Siddha Math and others2 held that a quasi judicial

function cannot be delegated.

Outsourcing of the essential adjudicating function, like a

quasi judicial function by the Commissioner of the 2nd respondent

(2015) 16 SCC 542 ::12:: MSR,J & TVK,J wa_162_2021

Corporation to the legal advisor of the Corporation, clearly vitiates

the impugned order passed by him on 04.12.2019.

The failure of the learned Single Judge to take not of this aspect

has also vitiated his order.

35. Merely because the appellant had filed W.P.No.6173 of 2019

for a direction to the 2nd respondent to dispose of his applications

under Section 450 of the Act for revoking the building permission

granted to the 7th respondent, and the High Court directed the

Commissioner to dispose of the same, the Commissioner cannot say

that 'the High Court did not specify that the permission already

granted needs to be revoked' or that 'the GHMC is not restrained

considering the building application nor GHMC is directed to cancel

the building permission'.

The Commissioner cannot, in our opinion, take a view that

unless there is a direction from this Court to him to revoke the

building permission, he cannot revoke it even if there is suppression

of material fact by 7th respondent for obtaining the building

permission.

36. Likewise, reference made by the Commissioner in the

impugned order dt.04.12.2019 to the suit O.S.No.701 of 2019 said to

have been filed by Mir Dewar Baquri before the IV Junior Civil Judge

against 7th respondent's firm has no relevance because the appellant is ::13:: MSR,J & TVK,J wa_162_2021

not a party to the said suit and such an irrelevant consideration cannot

be the basis for exercise of jurisdiction under Section 450 of the Act.

37. While the principle that the Municipal Commissioner cannot go

into the title disputes is well settled, the learned Single Judge ought to

have seen that the question before the Commissioner of 2nd respondent

was not as to which party had better title, but whether there was any

material misrepresentation or fraudulent statement given by the 7th

respondent for obtaining building permission from the 2nd respondent.

In our opinion, the learned Single Judge has mistakenly

presumed that title to the property was being sought to be agitated by

the appellant before the Commissioner of the 2nd respondent, which

was certainly not the case.

38. Also, in our view, the Commissioner of the 2nd respondent

could not have expressed any opinion as to the location of the subject

property claimed by the appellant when it is the subject matter of

E.A.No.81 of 2008 in EP.No.155 of 2002 in O.S.No.1402 of 1996,

that too without there being any material on record to enable him to

express the said opinion. So the observations made by him in that

regard are set aside.

39. In these circumstances, we are of the opinion that the order

dt.8.3.2021 passed by the learned Single Judge upholding the order

dt.04.12.2019 passed by Commissioner of the 2nd respondent cannot

be sustained and both orders are liable to be set aside.

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                                                                        wa_162_2021




40.   Accordingly,        the     Writ     Appeal     is    allowed;   the   order

dt.08.03.2021 in W.P.No.28185 of 2019 and the proceedings

No.1/C17/13164/2018/HO dt.04.12.2019 passed by the 2nd respondent

are set side; the permission Permit No.1/c17/17963/2018

DT.14.12.2018 in File No.1/C17/13164/2018 granted by 2nd

respondent to the 7th respondent is kept in abeyance till E.A.No.81 of

2008 in E.P.No.37 of 2008 in O.S.NO.1402 of 1996 before the

V Senior Civil Judge, City Civil Court, Hyderabad is decided; the said

Court is directed to decide the E.A.No.81 of 2008 within three months

after hearing both sides.

41. It is made clear that the 7th respondent shall not make any

further constructions or alienate any portion of the constructed area to

any third parties till the said E.A.No.81 of 2008 in E.P.No.37 of 2008