THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION Nos.17471 and 23840 of 2020
COMMON ORDER:
Since the order under challenge in both the writ petitions is
one and same, they are heard together and being disposed of by
this common order.
2. In these two writ petitions, the petitioners are challenging the
building permission vide Permit No.1/C20/03310/2020, dated
06.03.2020, issued by the respondent No.2-The Greater Hyderabad
Municipal Corporation (in short 'GHMC') in favour of respondent
No.7.
3. W.P.No.17471 of 2020 is filed by one of the members of the
Fertilizer Corporation of India Employee's Co-operative Housing
Society Limited (hereinafter referred to as 'the Society'), whereas
W.P.No.23840 of 2020 is filed by the Society, along with its
members.
4. It is stated that the Society had purchased an extent of
Ac.20.00 guntas in Survey Nos.124 and 125, situated at Gachibowli
under a registered sale deed dated 04.06.1981, and developed the
land into housing plots and allotted/sold them to the respective
members under various registered sale deeds. That prior to the
purchase of the land, the Society had framed the bye-laws for the
benefit of its members, to deal with the trade of buying, selling,
hiring, letting and developing land in accordance with Cooperative
principles and to give loans to its members for construction of new
dwelling houses. However, some of the members of the Society had
violated the bye-laws by selling their plots to some third parties
without prior approval of the Managing Committee of the Society.
2 AAR,J
WP.Nos.17471&23840 of 2020
5. Some of the members who are owners of Plot Nos.159, 160,
161 and 162 or their successors have jointly entered into a
Development Agreement of Sale-cum-General Power of Attorney,
dated 24.05.2018, with M/s. Supadha Constructions Private
Limited, which in turn, has approached GHMC seeking permission
for construction of a multi storied commercial complex, consisting
of three Cellars + Ground + 15 Upper Floors, without obtaining
NOC from the Society. GHMC has granted building permission vide
permit dated 06.03.2020. Challenging the said permit, the
petitioner has made a representation dated 16.09.2020 to
respondent Nos.1 and 2, but till date, no action is taken so far.
6. A counter-affidavit, sworn by the Director of respondent
No.7-company, has been filed on behalf of respondent Nos.3 to 7.
In the counter affidavit, it is stated that the petitioner himself had
entered into a Development-Agreement-cum-General Power of
Attorney dated 14.02.2020 in respect of Plot No.40 claimed by him,
along with neighbouring plot owners, with another builder for
construction of residential/commercial building. When some plot
owners did not give their plots for development, along with the
petitioner, the petitioner filed the present writ petition. In fact, a
part of the layout is in the residential zone and the remaining part
including the plots belonging to respondent Nos.3 to 6, are in the
commercial zone. There is no need for obtaining the NOC from the
Society, which has become defunct and the rights are only
imaginary and contrary to the provisions of the Hyderabad
Metropolitan Development Act, 2008, and the Master Plan and the
Zoning Regulations thereunder. It is further stated that two
members of the Society, namely P.V. Sai Abhinay and Sareena 3 AAR,J WP.Nos.17471&23840 of 2020
Suresh, have filed A.R.C.No.18 of 2017 before the Registrar of Co-
operative Societies, Hyderabad, against 160 persons including the
Society and its members alleging that the Society had allotted the
plots without a valid layout, and sought for resumption of the
entire land. Though initially, on 20.07.2017, an interim order was
passed in the said A.R.C., but on contest, the same was vacated on
21.08.2017. The petitioner is one of the respondents in the said
A.R.C; that respondent No.170 in the A.R.C has filed W.P.No.17018
of 2019 before this Court challenging the jurisdiction of the
Registrar of Co-operative Societies, Hyderabad, to entertain the
A.R.C. This Court vide order dated 08.08.2019 has granted interim
stay and the same is in subsistence. The plots in the layout were
regularised under the Urban Land Ceiling and also Layout
Regularisation Rules and the same were never challenged. Except
making bald and baseless allegations in the representation dated
25.07.2019, the petitioner has not done any thing. The respondent
has submitted an explanation on 13.09.2019 and after
consideration of the said explanation only, the building permission
was granted by the GHMC. The petitioner in collusion with some
builders have created a bogus Managing Committee of the Society
and resorting to blackmail tactics to compel the other plot owners
to surrender their plots to the said builder. Furthermore, the
petitioner filed the representation on 16.09.2020 and filed the
present writ petition on 28.09.2020, which proves that there is no
cause of action for filing the writ petition. It is further stated that
the respondent has already spent huge amounts towards building
permit fee to the GHMC, advances to vendors, suppliers,
consultants etc. 4 AAR,J WP.Nos.17471&23840 of 2020
7. A counter affidavit has been filed on behalf of respondent
No.8-Society (petitioner in W.P.No.23840 of 2020). In the said
counter affidavit it is stated that in order to achieve its objectives,
the Society had purchased the subject land from one Smt. Santha
Hemaraj under a registered sale deed dated 04.06.1981. On
12.07.1981, D. Laxmi Narayana, the then Secretary, applied to
Kothagudem Gram Panchayat for a layout in respect of the said
Acs.20.00 guntas of land purchased by the Society; that in fact, as
on the said date, the master plan of HUDA was extended to
Gachibowli and as such, the application should have been made to
HUDA for approval of layout; that on 11.08.1981, the Sarpanch,
Kothaguda Gram Panchayat, addressed a letter to the then
Secretary of the Society stating that the layout has been approved
as per the plan submitted; that there are two layouts with the
signature and seal of the Sarpanch, Kothaguda Gram Panchayat,
but the said layouts did not bear any date. However, the sale deeds
were executed in favour of the members of the Society on the basis
of both the layouts; that the said D. Laxmi Narayana, the then
Secretary executed the sale deeds on different dates from
05.11.1981 to 25.01.1982. It is further stated that the contents of
the sale deeds in favour of the members of the Society show that
the said sale deeds were subject to certain conditions and that no
consideration was paid to the Society under the said sale deeds
separately. Though the documents are styled as sale deeds, in fact,
it is an allotment of plots by the Society to its members; that as per
the terms of the sale deeds, the members who were allotted the
plots are bound by the bye-laws and also bound by the decisions
taken by the Society from time to time. The Society has the right to 5 AAR,J WP.Nos.17471&23840 of 2020
resume the plots if any condition is violated. It is further stated that
the Society had applied for conversion of usage of land from
agricultural to non-agricultural and the Government has issued
Orders dated 07.11.1996 converting the nature of land use from
agricultural to non-agricultural. When the Society approached the
HUDA along with the Land Use Conversion for the purpose of
regularising the layout, the Society was asked to get 'No Objection
Certificate' from the Urban Land Ceiling Authorities. Accordingly,
the Society had applied for the 'No Objection Certificate' from the
ULC Authorities; that the ULC authorities instead of issuing the 'No
Objection Certificate', declared the land purchased by the Society
as "surplus land" to the vendor of the Society, and issued a notice
to the Society to get the land regularised. Challenging the said
proceedings, the Society filed a revision before the State
Government and the same was dismissed by the Government.
Aggrieved by the same, the Society approached this Court and filed
W.P.No.19652 of 2007, and this Court had allowed the writ petition
on 29.04.2011. Challenging the same, the Government filed Writ
Appeal No.494 of 2013 and the same was dismissed by this Court
vide order dated 06.09.2013. The Special Leave Petition (Civil)
No.15388 of 2015 filed by the Government was also dismissed by
the Hon'ble Supreme Court on 02.07.2015.
8. Furthermore, two members of the Society filed A.R.C.No.18 of
2017 on 17.06.2017 under Section 61 of the TS Cooperative
Societies Act, 1964, before the Registrar of Societies. Respondent
No.135 in the A.R.C. filed I.A.No.9 of 2019 seeking rejection of the
said proceedings on the ground that the Registrar of Cooperative
Societies has no jurisdiction to entertain the said A.R.C., and the 6 AAR,J WP.Nos.17471&23840 of 2020
said I.A was dismissed on 21.05.2019. Suppressing the said order
dated 21.05.2019, which became final, the petitioner filed
W.P.No.17018 of 2019 alleging that the said A.R.C. is not
maintainable and obtained stay of all further proceedings in the
A.R.C. All the members of the Society, including respondent Nos.3,
4, 6 and donor of respondent No.5 are bound by its bye-laws. As
per bye-law 42(3) of the bye-laws of the Society, the plots shall be
allotted strictly after the layout is approved. However, no approved
layout is issued by the competent authority till date. Therefore, all
the allotments shall be treated as only provisional. Furthermore,
neither respondent Nos.3 to 6 nor the donor of respondent No.5
obtained any permission from the Managing Committee of the
Society for execution the Registered Development Agreement-cum-
General Power of Attorney in favour of respondent No.7. Therefore,
alienation of land in favour of respondent No.7 is not valid. That
respondent Nos.3 to 6 have no right, title or interest in any portion
of the land of the Society, and therefore, the GHMC ought not to
have granted any permission in respect of the land of the Society.
9. Learned counsel for the petitioner in W.P.No.17471 of 2020
contends that a large extent of land from out of Ac.20.00 gunts of
land purchased by the Society was affected in road widening,
whereby the area and extent of most of the plots were reduced, and
therefore, the Managing Committee of the Society had brought into
existence second layout and made allotments based on the second
layout. Learned counsel further contends that since there is a
dispute regarding the layout, the very title of respondent Nos.3 to 6
is in dispute; the applications made by respondent Nos.3 to 7 are
not in accordance with the statutory norms and regulations, and 7 AAR,J WP.Nos.17471&23840 of 2020
therefore, respondent No.2 cannot unilaterally grant permission
without verifying the prima facie details. The respondent Nos.3 to 7
have obtained permission for construction of commercial complex
in a disputed area by playing fraud and by misrepresenting, more
particularly, when the issue regarding overlapping and identity of
plots was pending before the Registrar of Cooperative Societies,
Hyderabad, in A.R.C.No.18 of 2017. The learned counsel further
states that respondent Nos.3 to 7 have acted in contravention of the
established norms and provisions of the Greater Hyderabad
Municipal Corporation Act, 1955, as well as the law laid down by
this Court. In support of the said contentions, the learned counsel
has relied on the judgment of this Court in Shri Manohar Rao
Kulkarni v. The Commissioner, Hyderabad Municipal
Corporation (Town Planning Section)1.
10. The learned counsel for the petitioner-Society in
W.P.No.23840 of 2020 has submitted that no member of the
Society can claim title or possession over any particular plot, as the
very allotment was not on the basis of any layout approved by the
Competent Authority i.e., HUDA and that the Society has made
several representations to the GHMC and its authorities not to
grant any permission in respect of the land of the Society till the
dispute, with regard to the allotment and identity of the land to its
members, is resolved. The GHMC ought not to have granted any
permission for construction till the disputes are resolved.
Therefore, the permission granted by respondent No.2 is not valid
and the same is liable to the set aside as the documents on the
basis of which respondent Nos.3 to 7 are claiming their right, title
1 1971 (1) Andhra Weekly Reporter 313 8 AAR,J WP.Nos.17471&23840 of 2020
and possession are prima facie invalid. Learned counsel further
states that no notice was issued by the GHMC to the Society before
granting building permission in favour of respondent Nos.3 to 7 for
making construction in the lands of the Society and that
respondent Nos.3 to 7 suppressed the material facts and obtained
building permission, and therefore, prayed to set aside the
impugned building permission granted by the GHMC in favour of
respondent Nos.3 to 7.
11. Heard the learned counsel for the respective parties. Perused
the material available on record.
12. As seen from the respective pleadings of the parties, the case
has chequered events. Even as per the admissions of the respective
parties, the disputes, such as overlapping of plots, their identity,
restoration of entire land to the Society, etc. are all disputed
questions of fact and are the subject matter of A.R.C. No. 18 of
2017 pending on the file of the Registrar of Cooperative Societies,
Hyderabad. Even the said proceedings were stayed by this Court
in W.P. No. 17018 of 2019, by order dated 08.08.2019. Thus, the
entire dispute pertaining to the allotment of plots and other related
issues are sub judice. Therefore, this Court is not inclined to go
into those aspects.
13. With regard to the specific challenge in both the writ
petitions, regarding the construction permission granted in favour
of M/s. Supadha Constructions Private Limited (respondent No. 7
in both the writ petitions), it is brought on record that the
representation, dated 16.09.2020, stated to be filed by the
petitioner in W.P. No. 17471 of 2020, is still pending with the
officials of GHMC, and the respondents have already filed their 9 AAR,J WP.Nos.17471&23840 of 2020
objections to the said representation. Although the learned counsel
for the respondents have argued extensively, with regard to the
maintainability of the very writ petitions, as they involve disputed
questions of fact, as discussed above, this Court sitting under
Article 226 of the Constitution of India, is not inclined to delve into
those disputed questions of fact. Since this Court is not inclined
to go into the merits of the case, ends of justice would be met if a
direction is given to the officials of the GHMC to dispose of the said
representation dated 16.09.2020 as expeditiously as possible.
14. Accordingly, both the writ petitions are disposed of directing
the official respondents to consider and dispose of the
representation filed by the petitioner in W.P. No. 17471 of 2020,
dated 16.09.2020, if not already disposed of, duly taking into
consideration the explanation submitted, as expeditiously as
possible, preferably within a period of three months from the date
of receipt of a copy of this order. It is needless to state that the
officials before passing any order shall put all the parties on notice
and grant them an opportunity of hearing. The orders, so passed
by the officials, shall be communicated to the respective parties.
Miscellaneous petitions pending, if any, shall stand closed.
There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 01-02-2021 va
