Mohammed Akber Khan vs The State Of Telangana
2022 Latest Caselaw 6561 Tel

          THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                     WRIT PETITION No.42950 of 2022

O R D E R:

The writ petition is filed seeking the following relief:

"... to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the action of Respondent No.3 in issuing the permission cancellation notice issued by the Respondent No.3 Jalpally Municipality vide Notice No.G1/110157/1378/JALP/2022 dt. 12.9.2022 as illegal, arbitrary and violative of principles of natural justice and consequently direct the Respondents not to interfere with the petitioners property bearing Plot No.50 in Sy.No.146 and 147 situated at Balapur Village and Mandal under Balapur Gram Panchayat, Jalpally Municipality, Rangareddy District and .....".

2. Mr. V.T.Kalyan, learned counsel for the petitioner submits that

the petitioner is owner and possessor of the subject property having

purchased the same by way of registered sale deed. He submits that

the petitioner has also applied for LRS and the same is granted to the

petitioner and thereafter, the petitioner has made an application

seeking building permission and the same was granted on

11.04.2022. He submits that thereafter, a show cause notice was

issued to the petitioner on 27.08.2022 stating that has obtained the

building permission without disclosing the fact that there is a title

dispute pending in respect of the said property vide O.S.No.1157 of

2018 and on verification, they found that there is a pending suit and

hence, they have directed the petitioner to submit his explanation and

the petitioner has submitted his explanation to the said notice on

03.09.2022.

3. Learned counsel for the petitioner submits that a final order

is passed on 12.09.2022 whereby the respondents have revoked the

building permission which is granted in favour of the petitioner

stating that the petitioner has failed to state about the pending suit

and the litigation between the parties and that amounts to

suppression of fact, as such the permission that is granted to the

petitioner has been cancelled as per Section 176(9) of the Telangana

Municipalities Act, 2019.

4. Mr. D. Raghavendar Rao, learned counsel appearing for the

unofficial respondent submits that he has filed a suit i.e. O.S.No.1157

of 2018 for declaration of title and cancellation of sale deeds and

without disclosing the said facts, the petitioner has made an

application and obtained the building permission. It is stated that

when the representation of the unofficial respondent was not

considered, they have filed a writ petition i.e.W.P.No.11396 of 2019

which was disposed of by order dated 08.11.2021. It is stated that in

the said order, the respondents are directed to consider the

representation and the learned counsel submits that in the said

order, there is an observation that the construction activity is being

carried out without layout approval from the HMDA and without any

permission from the District Collector. It is stated that when a show

cause notice is issued about suppression of facts, the petitioner failed

to give any response why he has suppressed the said facts.

5. Learned counsel for the unofficial respondent has relied on

the order passed by the Division Bench of this court on 24.08.2021 in

Fortuna Infrastructure India Pvt. Ltd. Vs. State of Telangana and

others in Writ Appeal No.162 of 2021 and he submits that in the said

order, it is held that the suppression by 7th respondent therein of the

decree in O.S.No.1402 of 1996 in favour of the appellant and

pendency of the claim petition E.A.No.81 of 2007 filed by him therein

was a deliberate act of deception intended to gain unfair advantage

over the appellant and the learned Division Bench has come to the

conclusion that there was a suppression on behalf of the 7th

respondent therein and has allowed the appeal and also directed the

7th respondent therein not to make any further construction. He

submits that as there is suppression and misrepresentation of facts

by the petitioner, the respondents have cancelled the building

permission granted in favour of the petitioner and there is no illegality

in the said order.

6. Learned standing counsel for the respondent municipal

corporation has argued in similar lines and submits that in view of

the suppression of the material facts by the petitioner, the

respondents have passed the order under Section 176(9) of the

Telangana Municipalities Act, 2019.

7. The order impugned dated 12.09.2022 is passed only on the

ground that a suit is filed by the unofficial respondent herein seeking

declaration and other reliefs and that fact was not brought to the

notice of the respondents and as such, it amounts to suppression of

facts. The undisputed facts are that there are no orders passed

against or in favour of the petitioner or the unofficial respondent.

8. Learned counsel for the unofficial respondent has relied on

the order passed by a Division Bench of this Court in Writ Appeal

No.162 of 2021 and states that it is a suppression of fact by the

petitioner. In the said Writ Appeal, the Division Bench has observed

that 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

facts before the 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

and also observed that another important question 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.

9. Coming to the facts of the case, the said judgment of the

Division Bench is not applicable on two grounds. One is that even if

the said fact is not brought to the notice of the Commissioner, now

just because of the pending declaratory suit before a court, cannot be

a ground for the Commissioner not to grant any permission in favour

of the applicant provided he satisfies all the other requirements.

Under the TS-bPASS Act where the application for building

permission is made, in the application form, there is no column

asking the petitioner to disclose about the details of pending cases.

Earlier, this court has passed several orders wherein the Special Chief

Secretary, Municipal Administration is directed to take steps to

incorporate the column in the application so that it can put a quietus

to the complaints under Section 450 of GHMC Act as well as 176(9) of

the Telangana Municipalities Act, 2019. Hence, this court is of the

view that without having a column in the application form about the

details of pending litigation, there cannot be an implicit

understanding that the petitioner has to disclose everything,

particularly in this case, where there are no orders passed against the

petitioner. In view of the same, this court is of the view that the

respondents cannot revoke the building permission on suppression

and misrepresentation of facts.

10. Further, the second aspect is that the respondents have

granted the building permission without the petitioner having layout

approval/regularization from the HMDA. In that view of the matter,

the respondents shall consider this particular aspect of not having

layout approval and the land dues and pass appropriate orders.

11. The petitioner shall submit his representation or reply with

regard to the LRS proceedings and the layout permission within a

period of (1) week from today and thereafter, within (15) days, the

respondents shall pass appropriate orders in accordance with law. Till

such time, the petitioner shall not make any construction.

12. Accordingly, the writ petition is disposed of. There shall be no

order as to costs.

The Miscellaneous Applications, if any shall stand

automatically closed.

_______________________________ LALITHA KANNEGANTI, J 7th December, 2022 gvl