Mr.N.Shashidhar Reddy vs State Of Telangana
2021 Latest Caselaw 4146 Tel

                                                                              KL,J,
                                                             wp_5799 and 5828_2021


                                      1

          THE HONOURABLE SRI JUSTICE K.LAKSHMAN

           WRIT PETITION NO.5799 AND 5828 OF 2021

COMMON ORDER


       These two writ petitions are filed to declare the action of the 3rd

respondent in insisting the petitioners to obtain No Objection Certificate

(NOC) from the 2nd respondent by way of issuing shortfall intimation

letters both dated 16.01.2020 as illegal and to set aside the same and for a

consequential direction to the 3rd respondent to grant permission for

construction of residential building by considering the applications

submitted by the petitioners both dated 08.01.2020 without insisting for

NOC from the 2nd respondent.

2. Heard Sri P.Venkanna, learned counsel for the petitioners, learned

Government Pleader for Municipal Administration and Urban

Development appearing for respondent Nos.1 and 2, Sri N.Praveen Kumar,

learned standing counsel appearing for the 3rd respondent and learned Govt.

Pleader for Revenue appearing for respondent No.4 in both the writ

petitions in common and disposed of with the following common order.

3. For the sake of convenience, the respective petitioners are referred

to as 'the petitioners'.

3. FACTS OF THE CASE

i) The petitioner in W.P.No.5799 of 2021 claims that she is the

absolute owner and possessor of land bearing Plot No.1/Part admeasuring KL,J, wp_5799 and 5828_2021

550.44sq.yards or 460.16sq.meters in Sy.No.494/A, situated at

Bandakommu, H/o Ameenpur Village and Mandal, Sanga Reddy District,

having acquired the same by way of a registered gift deed bearing

document No.54907 of 2019, dated 27.12.2019.

ii) The petitioner in W.P.No.5828 of 2021 claims that he is the

absolute owner and possessor of Plot No.2/Part, admeasuring 5.97 sq.yards,

Plot No.15, admeasuring 158.67 sq.yards, Plot No.16 admeasuring

61.66sq.yards, total admeasuring 226.30 sq.yards in Sy.No.494/A, 484/AA,

situated at Bandakommu, H/o Ameenpur Village and Mandal, Sangareddy

district, having acquired by way of registered gift deed document

No.54908/2019, dated 27.12.2019.

iii) In proof of the same, the petitioners have filed copies of gift

deeds, link documents, land conversion proceedings and encumbrance

certificate etc. Both of them have submitted their applications both dated

08.01.2020 to the 3rd respondent along with all the required documents for

construction of residential building.

iv) Thereafter, the 3rd respondent had issued shortfall notices dated

16.01.2020 to both the petitioners informing them to produce NOC from

the District Collector as land in Sy.No.494 is notified as Government land

which is included in the prohibited properties as per the records of the

Registration and Stamps Department of Telangana.

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v) According to the petitioners, as per the Government records, only

the land admeasuring Ac.0.01 gunta in Sy.No.494 is shown as Government

land.

vi) The petitioners and their predecessors are patta holders of land

admeasuring Ac.1.00 Guntas in Sy.Nos.494/A and Sy.No.484/AA of the

said Village.

vii) Without considering the same, the 3rd respondent is insisting the

petitioners to obtain NOC from the District Collector, on the ground that

the land in Sy.No.495-4 is notified as Government land, the subject site is

abutting to Pochamma temple in Sy.No.484 which is also Government land

and is also included in prohibited properties as per the information

furnished by the Registration and Stamps Department.

viii) According to the petitioners, the said shortfall notices dated

16.01.2020 issued by the 3rd respondent are illegal and contrary to the

principle laid down by this Court in Hyderabad Potteries Private

Limited Vs. Collector, Hyderabad District1 and also in Sri K.Pavan Raj

Vs. Municipal Corporation2.

ix) Since the dispute over the subject property is with the

Government, this Court directed the petitioners to implead the concerned

Tahsildar as party to the present writ petitions.

2001 (3) ALD 600= 2001 (3) ALT 200

2008 1 ALD 792 KL,J, wp_5799 and 5828_2021

x) The petitioners have filed applications to implead the Tahasildar,

Ammenpur Mandal in the present writ petitions and the same were

allowed.

4. CONTENTIONS OF THE RESPONDENT NO.4/THE TAHSILDAR, AMEENPUR MANDAL

i) Learned Government Pleader has produced the written instructions

of the Tahsildar, Ameenpur Mandal in both the cases.

ii)) In the said written instructions, the Tahsildar, Ameenpur Mandal

has specifically mentioned that as per Khasra Pahani for the year 1954-55,

the total extent of Ac.1-00 Guntas in Sy.No.494/1 is divided into two parts

i.e. 494/A to the extent of Ac.0.20 Guntas, and 494/AA to the extent of

Ac.0.20 Guntas and is classified as Patta land and stands in the name of Sri

Nalla Lingaiah and Sy.No.494/2 is Ac.0.01 Gunta, Government land

(Sarkari - Porampoke) and classified as Deval Pochamma temple situated

at Ameenpur Village and Mandal.

iii) Sy.No.494/2 to the extent of Ac.0.01 Gunta, is kept under

prohibitory properties list and a Pochamma temple is existing in the said

land.

iv) The land in Sy.No.494/1 to an extent of Ac.0.36 Guntas of patta

is kept in prohibitory properties list as the same is covered by Court order,

dated 25.06.2014 in I.A.No.676 of 2014 in O.S.No.85/ 2014 before the I

Additional District Judge, Medak at Sangareddy filed by Sri N.Durgareddy

father of the writ petitioner. Subsequently, the said O.S.No.85 of 2014 was

dismissed by the Court on 17.03.2015. He has also filed copies of the same.

KL,J, wp_5799 and 5828_2021

5. CONTENTIONS OF THE RESPONDENT NO.5/ AMEENPUR MUNICIPALITY

i) On receipt of the applications filed by the petitioners seeking

building permission, their subordinates have observed that there were

existing columns for cellar purpose which were commenced by the

petitioners long back on the site under reference and it is beside the land of

Pochamma temple.

ii) The same was stopped by the then Ameenpur Grampanchayat on

receiving a complaint from the local residents. Moreover, while taking the

measurements, some local residents have objected for taking the site

measurements on the ground that there is a Pochamma temple land beside

the site.

iii) On verification of the documents, shortfall notices dated

16.01.2020, 17.12.2020 and 05.04.2021 were issued to the petitioners with

a request to submit NOC to be obtained from the Collector, Sangareddy

District, as the said patta land in Sy.No.494 is notified as Government land

and included in prohibited properties.

iv) As per the records of Registration and Stamps Department, the

site is abutting to Pochamma temple in Sy.No.484 which is also a

Government land.

v) Therefore, the 3rd respondent has requested the petitioners to

produce NOC from the District Collector.

KL,J, wp_5799 and 5828_2021

vi) Instead of furnishing the same, the petitioners are insisting the 3rd

respondent to process their applications and grant building permission for

construction of residential houses.

vii) With the said submissions, both the Government Pleader for

Revenue and learned standing counsel appearing for the 3rd respondent

sought to dismiss the present writ petitions.

FINDINGS OF THE COURT

6. As stated above, the petitioner in W.P.No.5828 of 2021 is the son

and the petitioner in W.P.No.5799 of 2021 is the mother. Sri N.Durga

Reddy is the father and husband of the above said petitioners respectively.

The petitioners claim that they are the owners of the above said land and

both of them are claiming right over the above said subject property under

registered gift deeds bearing document Nos.54908 of 2019 and 54907 of

2019 both dated 27.12.2019. The said two gift deeds were executed by Sri

N.Durga Reddy. In the said gift deeds, the said N.Durga Reddy, the donee,

mentioned that he is the absolute owner of the subject property by virtue of

two sale deeds and one registered release deed. Thereafter, both the

petitioners have submitted applications dated 08.01.2021 to the 3rd

respondent with a request to accord permission for construction of a

residential building. Thereafter, the 3rd respondent has issued shortfall

notices dated 16.01.2020 stating that the said part of the land in Sy.No.494

is notified as Government land, the same is abutting Pochamma temple

situated in Sy.No.484 which is also a Government land.

KL,J, wp_5799 and 5828_2021

7. As per the written instructions of the 4th respondent, the total land

in Sy.No.494/1 is Ac.1-00 Guntas. Out of the said Ac.1-00 Guntas, the land

admeasuring Ac.0.01 Gunta in Sy.No.494/2 is a Government land (Sarkari

porampoke) and Pochamma temple is situated in the said land. The said

Ac.0.01 Gunta of land in Sy.No.494/2 is kept under prohibitory properties.

As per the written instructions of the 3rd respondent, the land admeasuring

Ac.0.36 Guntas in Sy.No.494/1 was also kept under prohibitory properties

since it is covered by the Court order in I.A.No.676 of 2014 in O.S.No.85

of 2014. It is relevant to note that the petitioners herein have not filed the

copies of the orders in the said suit but the 4th respondent himself filed a

copy of the judgment dated 17.03.2015 in O.S.No.85 of 2014.

8. A perusal of the judgment in the said suit would reveal that the

same was filed by Sri N.Durga Reddy, father and husband of the respective

petitioners against one M.Venkatanarayana. A memo was filed by the

plaintiff not pressing the said suit as the matter was settled outside the

Court by the parties and the said suit was dismissed as not pressed.

Therefore, in view of the same, the 4th respondent-Tahsildar, Ameenpur

Mandal, cannot claim that the said property admeasuring Ac.0.36 Guntas in

Sy.No.494/1 is kept under prohibitory properties list since it is covered by

the Court order in the above said suit. Therefore, the said contention of the

4th respondent is not acceptable.

9. As contended by the 4th respondent, land admeasuring Ac.0.01

Gunta in Sy.No.494/2 is a Government land (Sarkari porampoke) and the KL,J, wp_5799 and 5828_2021

same is kept under prohibitory properties in which Pochamma temple is

situated. Likewise, the Ac.0.04 Guntas of land is in Sy.No.484/2 which was

classified as Government Sarkari porampoke and the same is also kept

under the prohibitory properties and Pochamma temple is situated in the

said land. Even as per the counter filed by the 3rd respondent-Municipality,

the petitioners raised columns for cellar purpose before making

applications with the 3rd respondent for construction of a residential

building. The then Gram Panchayat, Ameenpur had stopped the said

construction on receiving complaints from local residents. On receipt of the

applications from the petitioners, the subordinates of the 3rd respondent

Municipality on field verification observed that there are existing columns

for cellar purpose which were commenced by the petitioners long back in

the subject site. Pochamma temple is also existing. The residents of the

said locality have raised objections stating that the subject land covered by

the Government land wherein Pochamma temple is situated.

10. It is not in dispute that there is Pochamma temple in the said

land. It is also not in dispute that the residents have raised objections to the

constructions started by the petitioners by raising columns for cellar

purpose. Therefore, the then Gram Panchayat had stopped the construction

on the complaints received by the residents. Thus, there is a dispute with

regard to the subject property between the petitioners and the Government

with regard to land in Sy.No.494/2 and 484/2.

KL,J, wp_5799 and 5828_2021

11. However, the 3rd respondent has to verify, prima facie, title of the

petitioners. It cannot insist for proof of NOC, to be obtained from the

District Collector. The said principle was also laid by this Court in

Hyderabad Potteries (supra) and followed the same in Sri K.Pavan Raj

(supra).

12. The above stated discussion would reveal that after stopping

work by the then Gram Panchayat, Ameenpur, it appears the petitioners

have obtained the above said registered gift deeds from Sri N.Durga

Reddy, father and husband of the petitioners respectively and on the

strength of the said gift deeds, they have applied for permission for

construction.

13. In view of the fact that Pochamma temple is existing in the said

land and the residents are making complaints against the petitioners herein

to put a quietus to the litigation, it is just and necessary to conduct survey

and demarcate the properties of the petitioners and the Government land in

both the Survey Nos.484/2 and 494/2 including the land in which the said

Pochamma temple is situated. For the said purpose, this Court directed the

petitioners to implead the Tahsildar concerned as party. Accordingly, the

petitioners herein have impleaded Tahsildar, Ameenpur as a party in the

present writ petitions.

14. The petitioners in both the writ petitions have filed petitions vide

I.A.Nos.3 of 2021 seeking to receive report of the Technical Officer of 3rd

respondent dated 16.01.2020 as additional material and the same were KL,J, wp_5799 and 5828_2021

allowed. In the said report, the Technical Officer of the 3rd respondent has

stated that he has inspected the said site and noticed that the applicant has

not commenced the proposed construction work and the site measurements

of ground position are tallied with that of documents. The said report

shows that the Technical Officer of the 3rd respondent has suggested

approval, but he is not competent to decide the above said issues including

the land of the petitioners and the land of the Government in the above two

survey numbers. Therefore, based on the said report, the 3rd respondent will

not be in a position to accord permission to the petitioners for construction.

15. In view of the above said discussion, both the Writ Petitions are

disposed of directing the 4th respondent i.e. Tahsildar, Ameenpur Mandal,

Sanga Reddy District, to conduct survey with the help of Mandal Surveyor

or any higher official other than the Mandal Surveyor to demarcate the land

belonging to both the petitioners in Sy.No.484/2 and 494/2 admeasuring

Ac.0.04 Guntas of Government land and also to demarcate the land where

Pochamma temple is situated, by putting the petitioners, the 3rd respondent/

Municipality and other interested parties on notice and affording them an

opportunity of hearing.

15-a) The 4th respondent/The Tahsildar, Ameenpur Mandal, shall

furnish a copy of the report to both the petitioners herein and 3rd

respondent-Municipality.

15-b) Based on the said report, the 3rd respondent is directed to

consider the applications dated 08.01.2020 submitted by both the KL,J, wp_5799 and 5828_2021

petitioners for construction of residential buildings without insisting the

petitioners to produce NOC from the 2nd respondent-the District Collector.

15-c) The respondent Nos.3 and 4 shall complete the said exercise

within eight (8) weeks from the date of receipt of a copy of this order.

15-d) There is no order as to costs.

15-e) As a sequel, miscellaneous petitions, if any, pending in these

Writ Petitions shall stand closed.

_________________ K. LAKSHMAN, J Date:6th December,2021.

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