Telangana High Court

Harish Kumar vs The State Of Telangana on 16 March, 2021

Bench: A.Abhishek Reddy

       THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                WRIT PETITION No.20906 of 2020
ORDER:

Heard the learned counsel for the petitioners, the learned

Government Pleader for Municipal Administration and Urban

Development for respondent No.1, the learned Standing Counsel

for GHMC for respondent Nos.2 and 3, Sri M. Naga Raghu, learned

counsel for respondent No.4, and Smt. Jyothi Eswar Gogineni,

learned counsel for respondent Nos.5 and 10. With their consent,

the Writ Petition is disposed of at the stage of admission itself.

2. This writ petition is filed seeking a writ of mandamus

declaring the impugned order dated 09/10.10.2020 passed by the

respondent No.3 - Commissioner, GHMC, rejecting the objections

of the petitioners seeking cancellation of the building permission

granted in favour of the unofficial respondents, as illegal and

arbitrary.

3. The case of the petitioners, in brief, is that an extent of

Acs.5.12 guntas, forming part of Survey Nos.91, 92 and 93 of

Shaikpet Village, originally belonged to one G. Rangaiah. The said

Rangaiah had five sons viz., G. Balaiah, G. Kistaiah, G.Sathaiah,

G. Laxmaiah and G. Eeraiah. G. Jangaiah is the son of G. Kistaiah

and G. Narasimha is the son of G. Sathaiah. The petitioner Nos.1

to 4 and one L. Sundar Rao have purchased the land admeasuring

Ac.0.20 guntas in Survey No.91 and Ac.0.20 guntas in Survey

No.92 of Shaikpet Village, Golconda Mandal, Hyderabad District,

from G. Jangaiah and G.Narasimha under unregistered sale deed

dated 07.09.1994, and subsequently, the petitioner Nos.1 to 4

have constructed a compound wall around the said land and also

AAR,J

erected a servant quarter therein. Thereafter, the said L. Sundar

Rao has relinquished his 1/5th share in the said land in favour of

the petitioner Nos.1 to 4 under two registered sale deeds dated

22.02.2010. Subsequently, the petitioner Nos.1 to 4 have executed

a Registered Agreement of Sale-cum-Irrevocable General Power of

Attorney in favour of the petitioner No.5-company, and delivered

possession to it.

4. While so, one Umamaheshwara Reddy, the authorised

signatory of M/s. Karvy Consultancy attempted to tress pass into

the land in Survey No.91 claiming right over the same under a

document No.3154 of 2006, and he also filed a complaint in Crime

No.144 of 2009 for the offence under Sections 448 and 506 I.P.C

against the petitioner Nos.1 to 4. The petitioner Nos.1 to 4 also

filed a complaint against the sad Umamaheshwara Reddy before

the XVII Additional Chief Metropolitan Magistrate and the same

was forwarded to the Jubilee Hills Police Station on 14.05.2009.

The matter was taken up under Section 145 Cr.P.C by the Special

Executive Magistrate, Hyderabad, and enquired into. In the said

proceedings, the letter dated 20.07.2009, of the Tahsildar,

Shaikpet Mandal, was filed. According to the said letter, the land

in Survey No.91 is patta land. The Special Executive Magistrate,

after conducting enquiry, by order dated 31.08.2010 held that

since 25.03.2009 till the date of passing of the said order, the

petitioner Nos.1 to 4 were alone in possession and enjoyment of

the subject land and the said Umamaheshwara Reddy was not in

possession of the subject land.

AAR,J

5. The Tahsildar, Shaikpet Mandal, also addressed a letter

dated 20.08.2010 to the District Collector, Hyderabad District,

stating that the petitioner No.2 has made an application requesting

him to cancel the NOC issued by the District Collector, Hyderabad,

in favour of M/s. Karvy Consultancy Limited, and he also sought

to issue NOC in his favour. The Joint Collector, Hyderabad, on

behalf of the NOC Committee constituted vide G.O.Ms.No.2111

dated 05.12.2005 and G.O.Ms.No.93 dated 28.01.2006 informed to

the Commissioner, GHMC, to reject the NOC in favour of the

petitioner No.2 and to keep in abeyance the NOC in favour of

M/s.Karvy Consultancy Limited. The Commissioner, GHMC, was

also informed not to accord building permission in favour of the

applicant or any other person in respect of the land in Survey

Nos.91 and 92 of Shaikpet Village till the title dispute with regard

to Survey Nos.91 and 92 is resolved by a Civil Court. M/s. Karvy

Consultancy filed a suit in O.S.No.628 of 2010 on the file of the XI

Additional Chief Judge, City Civil Court, Hyderabad, against the

petitioner Nos.1 to 4 and others seeking declaration and recovery

of possession.

6. It is stated that the petitioners have made an application for

building permission, but the Commissioner, GHMC, has rejected

the same on 23.09.2010 holding that the subject land is

Government land. Aggrieved by the same, the petitioners and

some other persons filed W.P.No.28169 of 2010, and this Court

vide interim order dated 12.11.2010 while directing the petitioners

not to deal with the land in question, directed the GHMC not to

undertake any development activity.

AAR,J

7. The unofficial respondents, who are claiming right and title

over an extent of 952.76 square yards and 900 square yards in

Survey No.92 of Shaikpet on the basis of a sale deed executed by

one D. Vittal Rao, the GPA holder of the alleged erstwhile owners,

entered into a development with the respondent No.9, and

obtained building permission for construction of a residential

complex. On coming to know the same, the petitioners have filed

their objections and sought to cancel the building permission

granted in favour of the unofficial respondents. However, the

Commissioner, GHMC, vide the impugned order rejected the

objections of the petitioners. Hence, this writ petition.

8. The respondent No.5, who entered into development

agreement with the respondent No.4, filed a detailed counter-

affidavit denying the petition averments and stating that the

respondent No.4 has purchased an open plot admeasuring 952

square yards in Survey No.92 under a registered sale deed. That

the respondent No.4 has obtained NOC from the Collector vide

Endorsement No.11/5643/2009 before making an application for

grant of permission, and that she has also constructed a

compound wall around the said plot in the year 1996 and she is in

possession and enjoyment of the same. That respondent No.4 has

also got regularised her plot under the Scheme of LRS vide

proceedings dated 13.05.2019. She gave the said land for

development to the respondent Nos.5 and 6 vide Registered

Development Agreement-cum-General Power of Attorney dated

11.04.2018. Thereafter, the developers obtained power connection

and applied for building permission. At this stage, the petitioners

filed a complaint with sham and frivolous documents claiming that

AAR,J

they are the lawful owners of the subject property in Survey Nos.91

and 92 through the legal representatives of Kistaiah and

Narasimha, who were parties to the registered GPA executed in

favour of D.Vittal Rao. The petitioners failed to establish their

legitimate right and title over the subject property. That the

respondents are not parties to W.P.No.28169 of 2010 filed by the

petitioner Nos.1 to 4. It is further stated that the documents filed

by the unofficial respondents show their possession and title in

respect of the land in Survey No.92. Moreover, in W.P.No.13093 of

2020, which was filed against the adjacent lands, the Revenue

Department clarified that the land in Survey No.92 belongs to the

respondent No.4. Since the unofficial respondents have proved

their title, the official respondents have granted building

permission in their favour. It is further stated that the

Commissioner, GHMC, after considering all the facts and giving an

ample opportunity of hearing to the petitioners, has rejected their

objections, and therefore, prayed to dismiss the writ petition.

9. Respondent No.4 filed a counter affidavit adopting the

counter affidavit filed by the respondent No.5.

10. Even though the respondent No.10 also filed a counter

affidavit, the contents thereof need not be mentioned herein as the

same are more or less similar to that of the counter affidavit filed

by the respondent No.5.

11. Learned counsel for the petitioners has argued mainly on the

point that the NOC Committee has earlier rejected the building

application made by the petitioner No.2, and moreover, this Court

vide order dated 12.11.2010 while directing the petitioners not to

AAR,J

deal with the subject land in any manner, directed the GHMC not

to undertake any developmental activity for a period of four weeks.

The learned counsel has further stated that the impugned rejection

order does not contain any reasons. That the Commissioner,

GHMC, was obligated to pass necessary orders strictly on merits,

as there were no disputed questions of title involved and the only

question that was raised was regarding the illegal possession.

Moreover, proceedings under Section 145 Cr.P.C. were also

initiated. But, the Commissioner, GHMC, without considering the

same, has passed the impugned order, in a mechanical manner,

rejecting the objections filed by the petitioners seeking cancellation

of the building permission granted in favour of the unofficial

respondents. Therefore, he prayed to set aside the impugned order.

12. Per contra, the learned counsel appearing on behalf of

respondent Nos.5 and 10, has argued that the writ petition itself is

not maintainable. That the entire averments in the writ petition

pertain to Survey No.91 only, whereas the unofficial respondents

are concerned with Survey No.92. That the Commissioner, GHMC,

cannot go into the disputed questions of title, and he has to only

see as to whether the applicant is having prima facie title or not

and whether the applicant is in possession or not and the only

grant building permission. That since the Commissioner was

satisfied with the prima facie title of the unofficial respondents, he

has granted the building permission in their favour. That the

unofficial respondents are not parties either to O.S.No.628 of 2010

or to W.P.No.28169 of 2010 and that the said suit pertains to

Survey No.91. In order to support her contentions, the learned

counsel has relied on the judgments in K. Pavan Raj v. The

AAR,J

Municipal Corporation of Hyderabad1 and Hyderabad

Potteries Private Limited v. Collector, Hyderabad District2.

13. After hearing both the parties and going through the record,

this Court is of the prima facie opinion that the impugned order

passed by the Commissioner, GHMC, is an elaborate order and

that the Commissioner has passed the said order duly taking into

consideration the fact that he can only go into the prima facie title

and lawful possession before granting the building permission and

that he is not the competent authority for deciding the title

disputes.

14. The main contention of the learned counsel for the

petitioners is that the Commissioner, GHMC, has ignored the

interim order dated 12.11.2010, passed by this Court in

W.P.No.28169 of 2010, and has granted building permission in

favour of the unofficial respondents in violation of the said order.

However, a perusal of the order dated 12.11.2010 shows that the

petitioners have not made the unofficial respondents as parties to

the said writ petition. Therefore, the contention of the learned

counsel for the petitioners that the Commissioner, GHMC, without

taking into consideration the order dated 12.11.2010 passed in

W.P.No.28169 of 2010, has granted building permission in favour

of the unofficial respondents is not correct.

15. The another contention raised by the learned counsel for the

petitioners is that the Committee constituted for issuing the NOC

has rejected the application made by the petitioner No.2 herein.

2008(1) ALD 792

2001 (3) ALD 600

AAR,J

That there are disputes between the petitioners and one M/s.Karvy

Consultancy, and that till the disputes are settled between those

parties, the application for NOC cannot be considered. Even the

order passed by the Joint Collector, Hyderabad, vide Endorsement

dated 24.11.2020 does not disclose that the unofficial respondents

are parties to the same. Furthermore, the unofficial respondents

are not parties to O.S.No.2962 of 2017 filed by respondent Nos.7, 8

and 9, O.S.No.2546 of 2017 filed by respondent No.4 and

O.S.No.628 of 2010 filed by M/s. Karvy Consultancy. Therefore, it

cannot be said that till the adjudication of title by the Civil Court,

the Commissioner, GHMC, ought not to have granted building

permission in favour of the unofficial respondents.

16. This Court, while dealing with the powers of the

Commissioner, in T. Rameshwar v. Commissioner, Municipal

Corporation of Hyderabad3, 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."

17. In Masnam Hussain v. State of Telangana4 2020 (5) ALD

539 (TS), this Court held as under:

2006 (3) ALD 337

AAR,J

"..Unfortunately, the Municipal Authorities have not been entrusted with the functions and duties to determine whether a particular individuals occupation of land is legal or illegal. The limited functions that are entrusted to the Municipal authorities under the Act is with respect to regulated development of zones and wards, and to issue construction permissions in the respective areas by following due process prescribed under the Act.

So far as the encroachment into petitioner's land is concerned, if the allegation of the petitioner that the 4th respondent had encroached into and occupied the petitioner's land is taken to be true, even assuming for the sake of argument that the authorities are not taking action against the alleged illegal construction being made by the 4th respondent, the remedy of the petitioner with respect to illegal encroachment is to approach competent Civil Court seeking mandatory injunction and recovery of possession".

18. Further, in Hyderabad Potteries Private Limited (supra),

this Court has held that the Municipal Authorities have to prima

facie see whether the applicant is having the prima facie title or not

and whether the building plan submitted along with the

application for building permission is as per the rules, statutes,

bylaws and the GOs prescribed, and if they are satisfied with the

title and building plan, they are obligated to take an independent

decision.

19. Admittedly, in the instant case, the Commissioner, GHMC,

has granted building permission in favour of the unofficial

respondents based on their prima facie title and lawful possession,

and keeping in mind that he is not the competent authority for