Telangana High Court

P.Sravya vs The Greater Hyderabad Municipal ... on 15 November, 2022

Bench: Lalitha Kanneganti

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

               WRIT PETITION No. 12101 OF 2022

O R D E R:

This 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 the respondents herein in issuing Ex.P1 rejection letter dated 25.02.2022 in respect of building permission application bearing file NO. 004873/GHMC/2676/SLP2/2021-BP dated 25.02.2022 as illegal, arbitrary and contrary to the provisions of the GHMC Act and the common order passed in W.P.Nos. 14881 and 14885 of 2020 dated 27.11.2020 and set aside the same and consequently, direct the respondents herein to grant building permission to me in respect of Plot No. 453, H.No. NA, Survey No. 11/8, 11/9, 11/10, 11/11 of Survey No. 11 situated at 181910 as prayed in building permission application bearing file No. 004873/GHMC/2676/SLP2/2021-BP dated 25.02.2022 as directed in W.P.Nos 14881 and 14885 of 2020 dated 27.11.2020 and pass such other order or orders may deem fit and proper in the circumstances of the case"

2. Sri S. Sridhar, learned counsel for the petitioner

submits that petitioner is absolute owner and possessor of

residential open land bearing Plot No. 453 admeasuring 417

square yards in Survey Nos. 11/8, 11/9, 11/10 and 11/11 Part

of Survey No. 11 situated at Ayyappa Colony, Khanamet Village

and purchased the same through a registered sale deed dated

24.01.1996. He submits that petitioner has made an

Application to the respondents seeking building permission on

01.12.2021, then a shortfall intimation letter dated 12.12.2021

was issued. It is submitted that as per the said shortfall notice,

the building plan submitted by the petitioner is not satisfactory

and the proposals are returned as the matter is sub judice. It is

further submitted that thereafter, the petitioner has filed Writ

Petition No. 1113 of 2022 before this Court challenging the

shortfall intimation letter dated 12.12.2021. It is submitted

that this Court by order dated 06.01.2022 disposed of the said

Writ Petition setting aside the shortfall intimation letter dated

12.12.2021 and directed the respondents herein to consider the

building permission afresh and pass necessary orders. Learned

counsel submits that the respondents, having considered the

said Application rejected it on the ground that as per the list

furnished by the ULC Authority, subject property belongs to the

government and it also discloses that special leave petitions are

filed in Hon'ble Supreme Court and the stay order is passed in

the said SLP. He submits that the Division Bench in common

judgment dated 12.09.2022 in Writ Petition Nos. 20407 of 2008,

9714 and 16658 of 2009 held that the Authority under ULC has

no power or jurisdiction over Gurukul Ghatkesar Trust lands

and that the order of the Commissioner, Appeals, ULC dated

24.01.2007 is without jurisdiction and against the said

judgment, one Arya Pratinidhi Sabha filed SLP (Civil) Appeal No.

19015 of 2013 aggrieved by the findings of the Division Bench

that the provisions of the Endowments Act, 1987 have

application over the Gurukul Ghatkesar Trust. The Hon'ble

Supreme Court on 19.11.2013 stayed the direction contained in

the impugned judgment therein. Learned counsel submits that

thereafter, number of appeals were filed before the Hon'ble

Supreme Court including the respondent government but no

relief was granted and all applications filed for grant of interim

orders are tagged on to SLP No. 35744 of 2013 and at no point

of time, the Hon'ble Supreme Court has granted stay on the

subject lands with regard to alienations, registration and

construction. He submits that this action of the respondents is

contrary to Sections 428 and 429 of the Greater Hyderabad

Municipal Corporation Act, 1955. He further submits that when

the building permissions were rejected in respect of Plot Nos.

140, 141, 154, 155, 172 and 173 in Survey No. 78 of Hafeezpet

Village, Serilingamapally Mandal, Ranga Reddy District on the

ground that the said lands are government lands, the owners of

the said plots filed Writ Petition Nos. 14881 and 14885 of 2020

before this Court challenging the rejection orders passed by the

respondents. Then the Division Bench of this Court considering

the scope and powers of the respondents herein under the

provisions of the GHMC Act in respect of building permissions,

has set aside the rejection orders and directed the respondents

to grant building permission to the owners. He submits that the

respondents are bound to consider the building permissions

irrespective of the other issues if they are prima facie satisfied

with the title to the property.

3. A counter-affidavit has been filed on behalf of

respondents. Learned Special Government Pleader submits that

the matter is sub judice before the Hon'ble Supreme Court and

the respondents have rightly rejected the application. He

submits that the land over which the petitioner is claiming

building permission is surplus land under ULC Act and

government land, as such there cannot be any permission. He

has relied on the order of the Hon'ble Supreme Court in Ritesh

Tewari v. State of Uttar Pradesh1. Paragraph 17 of the said

order reads as under:

" The ex parte orders of assessment of surplus land against the original tenure-holders have been placed on record. Admittedly, the said assessment orders had not been challenged by them and attained finality. In view of the provisions of Section 5 and 10 of the 1976 Act, transfer of such land by them in favour of anyone was not only prohibited but null and void."

(2010) 10 Supreme Court Cases 677

4. Petitioner, basing on a registered sale deed has

approached the respondents seeking building permission.

While granting permission, the respondents have to look only at

the prima facie title to the property and the possession of the

applicant. Apart from those, they cannot consider any other

issues. The respondents, basing on a list furnished by the ULC

authorities have passed the rejection order which is contrary to

the settled position of law.

5. At this juncture, it is appropriate to have a look at

the judgment in Hyderabad Potteries Private Limited v.

Collector, Hyderabad District2, wherein it is observed that:

" Of course, the Commissioner has to consider the objections, if any, raised for grant of permission. But, an objection raised by a member of the Committee itself would not be enough to reject the application for grant of permission. The Commissioner is required to make pragmatic assessment of the material available on record and decide the question of prima facie title and lawful possession of the applicants. The applications for grant of permission cannot be rejected solely on the basis of TSLR entries. After all, the decision to grant permission itself would not confer any title upon the applicant, nor it would take away the rights of the objector (s), whether the Government or any individual, for asserting their right, title and interest in the land in respect of which permission has been granted and dispute the title in any manner known to law. Similarly, the Commissioner is not entitled to decide any disputed questions of title or the ownership. All that the

2001(3) ALD 600

Commissioner required to do is to find out pram facie title and lawful possession of the applicant and obviously such consideration is confined to only for the purpose of granting permission and nothing more."

In the light of the law laid down in the above judgment, while

granting permission to the applicant, the respondents can only

look at the prima facie title and lawful possession.

6. It is also the case of the petitioner that in respect of

the several plot owners, permission was granted. Mere granting

permission will not confer any title to the petitioner. If the

stand of the government is that the property vests with the

government, they are always at liberty to initiate appropriate

proceedings against the petitioner. As far as granting building

permission is concerned, the municipal corporation except

looking at the prima facie title and legal possession, cannot seek

any NOC or they cannot rely on any other document.