Telangana High Court

S.H.Kishan Lal And 4 Others vs State Of Telangana And 4 Others on 8 July, 2021

Bench: A.Abhishek Reddy

            THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                       WRIT PETITION No.13646 of 2021
ORDER:

Heard the learned counsel for the petitioners, the learned

Government Pleader for Municipal Administration and Urban

Development for respondent No.1 and Sri Chatla Madhu, the learned

Standing Counsel for respondent Nos. 2 & 3 and Sri A. Venkatesh,

the learned counsel appearing on behalf of respondent Nos. 4 & 5.

With their consent, the Writ Petition is disposed of at the stage of

admission itself.

Assailing the proceedings of the Commissioner, GHMC, the

respondent No. 3, dated 31.05.2021, the present writ petition is filed.

By the impugned proceedings, the respondent No. 3 has granted

permission in favour of respondent Nos. 4 & 5 for construction of

Multi-storied residential building & Multiplex over the subject land.

The learned counsel for the petitioners has submitted that the

respondent No. 3 while reiterating the contentions made by the

petitioners and the unofficial respondents has simply passed the

impugned proceedings in mechanical and pedantic manner without

assigning any reasons. The learned counsel has contended that

except stating that the applicants have submitted all the documents

and during the inspection it was observed that the applicants are in

possession of the property and also the applicants have submitted

registered documents which are in their favour, no proper reasons

have been assigned in granting building permission in favour of

unofficial respondents. By placing reliance on the decision of the

Apex Court reported in N.M. Desai v. The Testeels Ltd.1, the

(1979) 3 SCC 225

learned counsel submits that a quasi-judicial power could not be

exercised without complying with the obligation to pass a reasoned

order.

Per contra, the learned counsel appearing on behalf of

respondent Nos. 4 & 5 has contended that there is a long chequered

history in respect of the subject land between the petitioners and the

respondent Nos. 4 & 5. That on an earlier occasion, the

predecessors-in-interest of the petitioners have already lost the civil

suits filed by them and that even the alleged partition deed and the

subsequent mutation proceedings were suspended by this Court.

The learned counsel has contended that the respondent No. 3 cannot

go into the disputed questions of title and facts. The subject

satisfaction of the respondent No. 3, for granting building permission,

is prima facie title of the applicant seeking building permission and to

see whether the building plans submitted are in accordance with the

bye-laws and provisions of the relevant Act. Therefore, the learned

counsel submits that there is no infirmity in the impugned

proceedings passed by the respondent No. 3.

This Court as well as the Hon'ble Supreme Court, in a catena

of cases, held that the municipal authorities do not have any power

to go into the disputed questions of title and they cannot decide the

title of the rival parties and only have to see whether the person

applying for building permission has prima facie title or not.

Moreover, as decided in number of cases, mere grant of building

permission will not take away/accrue any right, title or interest upon

the parties.

The Three-Judges Bench of the Hon'ble Supreme Court in

State of Gujarat v. Patil Raghav Natha2, at para 14, has held as

under:

"We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not to decide the question of title himself against the occupant."

T. Rameshwar v. Commissioner, Municipal Corporation of

Hyderabad3, this Court has held under:

"Therefore, the law as interpreted by this Court with reference to HMC Act and the Act, which requires the Commissioner to consider the objections, as and when they are raised, for grant of permission on the ground of title in a pragmatic manner taking into consideration only prima facie factors. While doing so, the Commissioner cannot assume the role of an adjudicator or arbitrator and decide the title inter se between the applicant for building permission and the objector of such building permission. If the applicant is able to show that prima facie such applicant has a right to proceed with the construction notwithstanding the pendency of any litigation by way of a suit or other proceeding subject to the applicant applying the certain conditions, the Commissioner may either grant permission or postpone the grant of permission."

In Guntuka Raja Ram v. State of Telangana4, this Court

held as under:

"As the Commissioner, being not well versed with law and legal intricacies, has taken care of obtaining legal opinion from the learned standing counsel, GHMC and basing on the said legal opinion, the commissioner had come to the conclusion that there exists a serious dispute with respect to the title and enjoyment of the petitioner with respect to the land, over which the petitioner claims building permission. In such circumstances, it cannot be said that the Commissioner had erred in delegating the parties to the Civil Court, as it is not possible for the Commissioner to come to a conclusion, who has superior title, that is, either the petitioner or the implead petitioner.

In T. Rameshwar v. Commissioner, Municipal Corporation of Hyderabad and others MANU/AP/0156/ 2006: 2006 (5) ALT 582, adverting to the cases in which there exists civil disputes, this Court had quoted its earlier decision dated 24.11.2003 in W.P.No.3979 of 2003. In the said judgment, this Court had opined that "when the dispute is sub judice, it shall be the duty of the Commissioner to postpone the permission, that the public authority must respect the court decision and implement it or aid in implementing the same.

In the very nature of the power exercised by the Commissioner and the parameters that are required to be considered in granting permission while exercising such power, the Commissioner is only

2 (1969) 2 SCC 187

2006 (3) ALD 337

2017 (4) ALD 415

required to examine the prima facie title of the applicant and if there is any doubt or any objection of serious nature is received, it may be desirable for him to obtain legal opinion to come to a conclusion as to whether the dispute in relation to title is of a serious nature and based on such legal opinion, the Commissioner may take a decision either to grant or reject the permission for construction. However, it may be cautioned that the legal opinion which the Commissioner may seek is not for coming to a conclusion between the two claimants who has superior title but only for the purpose of ascertaining as to whether there was a serious triable dispute between the parties. In which event, the Commissioner is bound to relegate the parties to approach the civil courts for the purpose of resolving the title dispute. In other words, the order of the Commissioner either granting or rejecting permission is justifiable only to a limited extent on a narrow ground of whether the decision making process of the Commissioner vitiated and not the decision by itself."

In K. Pavan Raj v. M.C.H. Rep. by its Commissioner5, this

Court , at para 20, has held under:

"A careful reading of the provisions of the Act and the Bye- laws does not indicate that the Commissioner is empowered to entertain a title dispute and adjudicate the same before disposing of the application for grant of building permission. Indeed, both the provisions of Sections 428 and 429 and clause (v) of Bye-law 4.2 envisage filing of copies of title deeds and there is no provision under which the Commissioner can reject grant of building permit on the ground of title dispute. As held in Hyderabad Potteries (1 supra), if any objection regarding title is received, the Commissioner is required to be prima facie satisfied about the applicant's title to the property and his lawful possession of the same and he cannot decide title dispute because that is neither one of the duties assigned to him nor he is provided with such an adjudicatory mechanism. A person setting up a rival claim of title, is free to approach the court of competent jurisdiction and seek appropriate relief in that regard. If the applications for building permissions are rejected merely on the ground of third parties raising disputes of title, that may result in serious hardship to the owners of the properties where frivolous, speculative and vexatious claims may be made by third parties by setting up title. Therefore, wherever the Commissioner is, prima facie, satisfied about the legal title of the applicant and his lawful possession, he is bound to consider the application for building permission on merits, leaving the objector free to approach an appropriate court of law."

In SSPDL Ltd. Hyderabad Metropolitan Development

Authority6 it has been held as under:

"Therefore, the law as interpreted by this Court with reference to HMC Act and the Act, which requires the Commissioner to consider the objections, as and when they are raised, for grant of permission on the ground of title in a pragmatic manner taking into consideration only prima facie factors. While doing so, the Commissioner cannot assume the role of an adjudicator or arbitrator and decide the title inter se between the applicant for building permission and the objector of such building permission. If the applicant is able to show that prima facie such applicant has a right to proceed with the construction notwithstanding the pendency of any litigation by way of a suit or other proceeding subject to the applicant applying the certain conditions, the Commissioner may either grant permission or postpone the grant of permission.

2008(1) A.P.L.J.2 (HC)

(2017(6) ALD 570

In the considered view of this Court, a dispute on identity or title ought not to have been entertained and decided by 1st respondent. This Court is persuaded to apply the principles of law enumerated in cases referred above to the case on hand as 1st respondent discharges assigned functions and powers and from the reading of Act, deciding title or identity is not one of the functions or powers of 1st respondent. Therefore, the decision of 1st respondent dated 29.08.2015 is illegal and beyond jurisdiction and untenable".

In Jayamma v. State of Karnataka7, a three-Judge Bench

held as under:

"Commissioner has no jurisdiction to decide the title dispute between the parties in respect of immovable property/properties. It is the exclusive domain of the competent Civil Court to adjudicate the dispute/title in respect of the immovable property/properties and ultimately if any decree to be passed by the competent Civil Court will be binding on the parties as well as the revenue authorities in the State".

In an unreported Order, dated 18.12.2020, passed in

W.P.No.19040 of 2020, this Court has held as under:

"It is well accepted principle of law that where serious disputed questions of title or facts are involved, it is only the competent Civil Court which can give a finding regarding the title, possession etc., based on the evidence on record. The authorities under the GHMC Act do not have the power to decide the title to the property where two rival claimants are seriously disputing the title of one another. Neither the Commissioner nor the Deputy Commissioner of the Municipal has the jurisdiction to decide the title dispute between two or more rival parties in respect of the immovable properties. It is only the Civil Courts that have the exclusive domain and jurisdiction to adjudicate the right/title/dispute between the rival parties in respect of the immovable properties. It is only the Civil Court which can record the evidence and taking into account the oral and documentary evidence adjudicate the rights of the parties. The role of the Municipal Commissioner is only to see if the party applying for building permission is having prima facie title or not and whether the building plan submitted are in accordance with the Act, Rules, By-laws, and various G.Os., issued from time to time. Ultimately, if a decree is passed by a Civil Court, the same is not only binding on the parties but also the Municipal and Revenue authorities."

As seen from the pleadings of the respective parties, it is clear

that there are serious disputed questions of title between the parties.

Merely because, by the impugned proceedings, building permission is

granted by respondent No. 3 in favour of respondent Nos. 4 & 5, it

does not take away the right, title and interest of the petitioners, if

any, over the subject property and they can always approach the civil

court seeking adjudication of their right, title and interest over the

2020 SCC OnLine Kar 211

subject property. In that view of the matter, this Court is not

inclined to interfere with the impugned proceedings of the respondent

No. 3.

Accordingly, the writ petition is dismissed granting liberty to