Md. Amair vs The State Of Telangana
2022 Latest Caselaw 6596 Tel

    THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN

                                 AND

     THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


                 WRIT APPEAL No.801 of 2022


JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)


      Heard Mr. Mohammed Habeebuddin, learned counsel

for the appellant; Mr. Pasham Krishna Reddy, learned

Government Pleader for Municipal Administration and Urban

Development for respondent No.1; Mr. V.Praveen Kumar,

learned Standing Counsel for respondent Nos.2, 3 & 4;

Mr. Jayakar Byrapaka, learned Government Pleader for

Tourism for respondent No.5; and Mr. R.A.Chary, learned

counsel for respondent No.6/writ petitioner.

2. This writ appeal is directed against the order dated

09.11.2022 passed by the learned Single Judge allowing Writ

Petition No.41009 of 2022 filed by respondent No.6 as the writ

petitioner.

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                                                            W.A.No.801 of 2022

3. Respondent No.6 had filed the related writ petition

seeking the following reliefs:

"... to issue Writ, order or direction more particularly one in the nature of Writ of Mandamus by declaring the action of the 3rd Respondent issuing the Revocation letter vide letter No.141603/GHMC/4206/2022 dated 17-03- 2022 to the petitioner by revocation of building permission dated 21-02-2022 to the House No.2l-2- 289/2/1 to 7, 289/2/A to M/1, situated at Lad Bazar, Bahudurpura, Charminar Circle 9, GHMC, Hyderabad, Telangana, is illegal, arbitrary, unconstitutional, contrary to law and against the principals of natural justice and consequently direct the 3rd Respondent to restore the TS- Bpass building permit order dated 21-02-2022 vide permit No.141603/2388/GHMC/2022 issued in favour of the petitioner by suspending the Revocation letter dated 17-03-2022 issued by the 3rd Respondent to the House No.2l 2-289/2/1 to 7, 289/2/A to M/1, situated at Lad Bazar, Bahudurpura, Charminar Circle 9, GHMC, Hyderabad, Telangana."

4. From a perusal of the above, it is seen that building

permission was granted to respondent No.6 by Greater

Hyderabad Municipal Corporation ('GHMC' hereinafter)

authorities on 21.02.2022 for construction in House No.21-2-

289/2/1       to     7,    289/2/A      to    M/1,        situated     at   Lad
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                                                W.A.No.801 of 2022

Bazar, Bahadurpura, Charminar Circle-9, Hyderabad (briefly

'the subject property' hereinafter). Deputy Commissioner,

GHMC by order dated 17.03.2022 revoked the building

permission so granted. This revocation order dated

17.03.2022 came to be challenged in Writ Petition No.41009

of 2022 primarily on the ground that it was in violation of the

principles of natural justice. Learned Single Judge vide the

order dated 09.11.2022 referred to the earlier decision dated

13.12.2021 passed in Writ Petition No.20398 of 2021 and

batch, more particularly to paragraphs 12 and 13 thereof,

and thereafter set aside the revocation order dated

17.03.2022.

5. Before we advert to the relevant portion of the

order dated 13.12.2021 relied upon by the learned Single

Judge, we are of the view that before the building permission

was revoked, respondent No.6 i.e., the writ petitioner ought to

have been put on notice. Without giving notice and hearing to

the writ petitioner, it was not justified on the part of the

GHMC authorities to revoke the building permission already 4 HCJ & CVBRJ W.A.No.801 of 2022

granted. To this extent, we are in agreement with the views

expressed by the learned Single Judge. Consequence of such

setting aside of the revocation order would be that the matter

should go back to the concerned authority i.e., the Deputy

Commissioner, GHMC for taking a fresh decision in

accordance with law after giving opportunity of hearing to the

objector as well as to the writ petitioner.

6. We may now refer to the relevant portion of the

order dated 13.12.2021 passed in Writ Petition No.20398 of

2021 and batch, more particularly to paragraph Nos.12 and

13 thereof as extracted by the learned Single Judge, which

reads as follows:

"12. In view of the above, this Court is of the opinion that in order to justify the action taken by the respondent authorities in revoking the building permission of the petitioners, they ought to have acted fairly and in strict adherence to the principles of natural justice. However, since the learned Special Government Pleader, on instructions, submitted that the impugned revocation letters passed against the petitioners stand withdrawn to the extent of revocation of permission to construct buildings, the said submission is placed on record. The 5 HCJ & CVBRJ W.A.No.801 of 2022

impugned revocation letters passed by the respondent authorities against the petitioners stand withdrawn to the extent of revocation of permission to construct buildings, in terms of submissions made by the learned Special Government Pleader. The petitioners are directed to submit their explanations to the objections pointed out in the impugned revocation letters to the respondent authorities within a period of two weeks from today. On such submission of explanations by the petitioners, the respondent authorities are entitled to pass appropriate orders, in accordance with the provisions of TS-bPASS Act and the Rules made thereunder, within a period of one week from the date of receipt of such explanations. In case, if no orders are passed by the respondent authorities within the time indicated above, there shall be deemed approval of the applications of the petitioners filed for construction of buildings. It is made clear that until passing of orders by the respondent authorities within the time prescribed on the explanations submitted by the petitioners, the petitioners shall not proceed with any type of constructions in their respective subject lands.

13. As regards the contention of the learned counsel for the petitioner in W.P.No.32665 of 2021 that the revocation order was passed without recording any objections, the respondent authorities are directed to bring the objections to the notice of the petitioner therein within a period of one week from today; and on receipt of such objections, the petitioner shall submit his explanation to the said objections within two weeks 6 HCJ & CVBRJ W.A.No.801 of 2022

thereafter; and on submission of such explanation by the petitioner, the respondent authorities are entitled to pass appropriate orders in accordance with the provisions of TS-bPASS Act and the Rules made thereunder within one week from the date of receipt of such explanation. In case, if no orders are passed by the respondent authorities within the time indicated above, there shall be deemed approval of the application of the petitioner filed for construction of building. It is made clear that until passing of orders by the respondent authorities within the time prescribed on the explanations submitted by the petitioner, the petitioner shall not proceed with any type of constructions in his subject land."

7. Learned Single Judge was justified in holding that

before cancellation or revocation of building permission once

granted, it is essential that the authorities follow the

principles of natural justice by giving due notice of hearing to

the affected parties. However, the further direction of learned

Single Judge in paragraph 13 that GHMC authorities would

pass appropriate orders after receiving the objection and the

explanation thereto within one week from the date of receipt

of such explanation and if no orders are passed by the GHMC

authorities within the aforesaid period, there shall be deemed 7 HCJ & CVBRJ W.A.No.801 of 2022

approval of the application for construction of building is

problematic. Further learned Single Judge clarified that till

such orders are passed by the respondent authorities, the

permission holders should not proceed with any type of

constructions on the subject land. This is contradictory to

the earlier direction of the learned Single Judge that if no

decision is taken by the GHMC authorities within one week of

receipt of explanation, it will be a case of deemed approval.

8. We are unable to subscribe to such views

expressed by the learned Single Judge. While certainly the

GHMC authorities are required to follow a fair procedure

while dealing with the objection to building permission

granted and after hearing the concerned stake holders,

should pass appropriate orders in accordance with law. But

to say that if no decision is taken by the GHMC authorities

within one week of receipt of explanation from the permission

holder to the objection, it would be construed that there is

deemed approval to the application of the permission holder

for construction of building is unwarranted. This is because 8 HCJ & CVBRJ W.A.No.801 of 2022

such a direction is susceptible to misuse at the hands of

unscrupulous persons in collusion with certain erring officials

of GHMC. Such a possibility cannot be ruled out altogether.

It is the duty of the Court to ensure that due procedure is

followed while taking a decision which is adverse to a party.

Beyond that Court should ordinarily be reluctant to issue

positive directions, such as, in the event of non-passing of

order by the municipal authorities, it would be a case of

deemed permission. This would amount to re-writing of the

statute which is neither contemplated nor permissible.

9. That being the position, we are of the view that the

portion of the direction of the learned Single Judge dated

13.12.2021 passed in Writ Petition No.20398 of 2021 and

batch relating to deemed approval is liable to be interfered

with.

10. We are conscious of the fact that order dated

13.12.2021 is not under challenge before us. Nonetheless

this order is the fulcrum of the order dated 09.11.2022 which 9 HCJ & CVBRJ W.A.No.801 of 2022

is under appeal before us. By incorporation it has become a

part of the order dated 09.11.2022.

11. In any case, no party can claim any vested right in

having deemed approval of building permission.

12. Consequently, that portion of the order dated

13.12.2021 passed in W.P.No.20398 of 2021 and batch

contained in paragraph 13 thereof to the extent of deemed

approval of building permission is set aside.

13. Subject to the above, the Writ Appeal is disposed

of. However, there shall be no order as to costs.

14. As a sequel, miscellaneous applications pending, if

any, in this Writ Appeal, shall stand closed.

__________________________ UJJAL BHUYAN, CJ

___________________________ C.V.BHASKAR REDDY, J Date: 08.12.2022 KL