Smt. Maniza Jumabhoy, vs Karim Nawaz Alladin
2022 Latest Caselaw 480 Tel

    THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                             AND
        THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI


                        WRIT APPEAL No.254 of 2021

JUDGMENT:     (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




     The present writ appeal is arising out of common order dated

23.04.2021 passed in W.P.Nos.19276 of 2020 and 6498 of 2021 by

the learned Single Judge.

     The undisputed facts of the case reveal that the present

appellant, Smt. Maniza Jumabhoy, who is residing in Singapore,

has filed the writ petition i.e., W.P.No.19276 of 2020 seeking a

direction to the authorities of the Greater Hyderabad Municipal

Corporation     (GHMC)           to     demolish           the      alleged   illegal   and

unauthorised construction, which was being done by respondent

No.1 herein, Karim Nawaz Alladin. There was another writ petition

i.e., W.P.No.6498 of 2021 filed by Karim Nawaz Alladin, respondent

No.1 in the writ appeal, challenging the order dated 19.02.2021

passed by GHMC rejecting his application for grant of building

permission.

The facts of the case reveal that the present appellant and

respondent No.1, Karim Nawaz Alladin, are real sister and brother.

A partition suit i.e., O.S.No.13 of 2007 was pending between them

before the II Additional Chief Judge, City Civil Court, Hyderabad,

and the subject matter of the writ appeal is also one of the

properties, which are the subject matter of the partition suit.

Respondent No.1 herein, Karim Nawaz Alladin, made an application

on 01.02.2021 for grant of building permission on the ground that

the house in which he is living is in dilapidated condition and there

is an immense threat of collapsing down of the structure at any

point of time and the same was rejected by order dated 19.02.2021.

Against the said order, a writ petition was preferred i.e.,

W.P.No.6498 of 2021 by Karim Nawaz Alladin, respondent No.1.

The sister, who is the appellant, came up with another writ petition

that his brother is constructing illegally. The learned Single Judge

has decided both the writ petitions by a common order. The order

passed by the learned Single Judge is reproduced as under:

"A perusal of the photos filed by the petitioner discloses that the structure over the premises in question is in a dilapidated condition, certain portions of the roof have also fallen off and the iron girders of the roof are exposed and have rusted. Moreover, the walls have become damp due to seepage of water. Over all, it appears, the structure has become weak and is not in a habitable condition. Further, as seen from the plaint schedule property in O.S. No. 13 of 2007, the subject property is only one of the items among other items listed for partition. Thus, as rightly contended by the learned counsel for the petitioner, there are other properties sufficiently available in order to compensate the respondent No. 7 in case she succeeds in the suit filed by her. The suit is of the year 2007 and it may take many years before the matter is finally settled. It is made clear that any construction made by the petitioner shall be subject to the result of O.S.No.13 of 2007 pending before the Court and in case, the respondent No.7 succeeds and the suit is decreed, the petitioner shall not claim any equities with respect to the cost of court. The petitioner as well as the respondent No. 7 can always workout their equities in the suit in case the same is decreed in favour of respondent No. 7. The fact that the respondent No.7 is residing in Singapore is also not denied. The petitioner cannot be expected to stay in an uninhabitable building merely on the ground that the said building is subject matter of the pending suit. In K. Pavan Raj v. M.C.H. Rep. by its Commissioner (2008 (1) APLJ 2 (HC)), at para 20, this Court has held as 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 Limited Rep. by its Managing Director Prakash Challa, Hyderabad v. Hyderabad Metropolitan Development Authority (2017 (6) ALT 253 (S.B.)):

"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 Jayamma v. State of Karnataka (2020 SCC Online Kar

211), a three-Judge Bench of Karnataka High Court has 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."

For the forgoing reasons, the official respondents are directed to consider the application, dated 01.02.2021, of the petitioner for construction of building, in accordance with law, relevant rules and the bye-laws, on its own merits without adverting to the factum of pendency of the suit in O.S. No. 13 of 2007 pending between the parties, and pass orders within a period of four weeks from the date of receipt of a copy of this order. Till such time the application of the petitioner is processed by the authorities within the stipulated time of four weeks, the petitioner also shall not commence any construction work. In view of the above directions, the official respondents shall not take any coercive steps insofar as the construction/repairs done by the

petitioner are concerned, till the orders are passed on the building application.

Both the writ petitions are disposed of accordingly.

The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs."

This Court has carefully gone through the order passed by

the learned Single Judge and the learned Single Judge, taking into

account the judgments delivered in the case of K.Pavan Raj vs.

M.C.H. Rep., by its Commissioner1, SSPDL Limited, Rep., by its

Managing Director Prakash Challa, Hyderabad vs. Hyderabad

Metropolitan Development Authority2 and Jayamma vs. State

of Karnataka3, has disposed of the writ petitions with a direction to

GHMC to decide the application preferred by respondent No.1 in

the writ appeal for grant of building permission, and also directed

the authorities not to take any coercive action pending application

for grant of building permission. The learned Single Judge has also

observed that the order passed by this Court will not come in the

way of the parties so far as the partition suit is concerned i.e.,

O.S.No.13 of 2007 and the parties will not claim any equity on

account of the order passed by this Court.

In the considered opinion of this Court, as respondent No.1 is

living in a house, which is in dilapidated condition and there is

immense threat of collapse at any point of time, he has rightly

applied for grant of building permission. Grant of building

permission is not going to decide the title dispute in any manner

and the partition suit is still pending. Therefore, the learned Single

2008 (1) APLJ 2 (HC)

2017 (6) ALT 253 (S.B.)

2020 SCC Online Kar 211

Judge was certainly justified in disposing of both the writ petitions

by directing the authorities to pass order in the matter of grant of

building permission in accordance with law.

In the considered opinion of this Court, the order passed by

the learned Single Judge does not warrant any interference.

However, it is once again clarified that the order passed by the

learned Single Judge and the order passed by this Court will not

create any right or equity in favour of the parties and the parties

will be abide by the judgment and decree, which is likely to be

passed by the civil Court in O.S.No.13 of 2007.

With the aforesaid, the writ appeal stands disposed of.

Miscellaneous petitions, if any, shall stand closed. There

shall be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

______________________________ ABHINAND KUMAR SHAVILI, J 07.02.2022 ES