Telangana High Court

M/S. Arunachala Logistics Pvt. ... vs The State Of Telangana And 8 Others on 18 October, 2022

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

       THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                           AND
        THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

                   WRIT APPEAL No.563 OF 2022

JUDGMENT: (Per the Hon'ble Sri Justice C.V.Bhaskar Reddy)



       This appeal is preferred aggrieved by the order

passed in W.P.No.15026 of 2021 dated 29.07.2022 of the

learned Single Judge in dismissing the writ petition.


2.     The appellant is the writ petitioner.                The writ

petition has been filed to issue a Writ of Mandamus

declaring         the       order        bearing        Lr.No.1/C20/

22171/2018/234, E-office No.226495, dated 13.03.2021,

issued by respondent Nos.2 and 3 as unjust, arbitrary

and untenable and consequently prayed to set aside the

same.

3. The case of the writ petitioner (company) is that it

purchased agricultural land admeasuring Ac.1-10.6

guntas in Survey No.169(part) and Ac.0-02.4 guntas of

land in Survey Nos.165, 166 and 167 (part), totally

admeasuring Ac.1.13 guntas in Survey Nos.165, 166 and

167 (part) and 169(part) of Kondapur Village,

Serilingampally Mandal, Ranga Reddy District, vide

registered sale deed dated 10.02.2016 Document

No.1601/2016. Petitioner claims to be in possession of

the subject land from the date of purchase. It is the

further case of the petitioner that the land was converted

from agricultural use to non-agricultural use by

obtaining necessary permissions from the competent

authorities and got the schedule property demarcated

and mutated in the revenue records and obtained

feasibility certificate from HMWSSB dated 07.08.2018

and electricity connection in the year 2016.

4. Further case of petitioner is that after obtaining

necessary clearances, it has made an application seeking

building permission vide File No.1/C20/22171/2018

dated 11.03.2019 and also remitted an amount of

Rs.1,66,53,310/- as per the demand made by respondent

Nos.2 and 3 and also executed a registered mortgage

deed to an extent of 10% of the total built up area as per

rules vide registered Document No.19120/2019 dated

07.11.2019 in favour of respondent No.2 and also

transferred an extent of 682.44 square yards to

respondent No.2 for the proposed 120 feet road widening

free of cost and accordingly respondent No.2 while

accepting the same issued TDR (Transfer of Development

Rights) Certificate to the writ petitioner on 06.07.2019.

At this juncture, respondent Nos.4 to 9 filed an objection

petition before respondent No.2 claiming ownership and

title over the subject land to an extent of Acs.2.00 in

Survey No.169(part) of Kondapur Village, Serilingampally

Mandal, enclosing ad interim injunction order of Civil

Court and requested respondent Nos.2 and 3 not to

release the building permission. Acting on the said

objections of respondent Nos.4 to 9, building permission

was rejected vide orders dated 18.09.2020 intimating as

follows:-

"(i) the decision with regard to Building Permission will be taken based on the outcome of O.S., which is pending.

(ii) both the parties are advised to approach Civil Court for redressal of dispute."

5. Questioning the aforesaid order, the petitioner has

filed W.P.No.17287 of 2020 and this Court disposed of

the same vide order dated 10.11.2020 setting aside the

order dated 18.09.2020 of respondent No.2 and has

directed to pass fresh orders within a period of four

weeks.

6. The grievance as ventilated in the writ petition is

that respondent No.2 conducted a roving enquiry with

regard to title and entitlement of the respective parties

and erroneously rejected the building permission vide

impugned order dated 13.03.2021 by observing that the

parties have to resolve their disputes in Civil Court and

subject to the result of the suit, further action will be

taken in respect to building permission. Questioning the

said order, the writ petition has been filed.

7. A counter affidavit has been filed by respondent

Nos.4 to 9 disputing possession and title of the writ

petitioner. It is the case of respondent Nos.4 to 9 that

they are the owners of land admeasuring Asc.02.00 out of

Acs.06.00 in Survey No.169(part) situated at Kondapur

Village, Serilingampally Mandal, having acquired the

same through a registered sale deed dated 24.12.1997

vide Document No.6501 of 1998. It is stated that since

disputes arose with respect to the said land, respondent

Nos.4 to 9, through their GPA holder, has instituted

O.S.No.367 of 2019 and O.S.No.112 of 2021 on the file of

XV Additional District Judge, Ranga Reddy District.

Further in the counter affidavit they traced title of the

land in Survey No.169 and the right of their vendors and

their predecessors-in-interest for transferring the said

land and conversion of land from agricultural use to non-

agricultural purposes.

8. It is their further case that in O.S.No.367 of 2019

they obtained an order of ad interim injunction dated

26.09.2019 in I.A.No.1913 of 2019 in respect of Acs.2.00

of agricultural land in Survey No.169 and the writ

petitioner filed I.A.No.2321 of 2019 in I.A.No.1913 of

2019 seeking to vacate the ad interim order and the same

was dismissed by the Court below vide orders dated

21.01.2021. Aggrieved by the same, the petitioner filed

C.M.A.No.121 of 2021 before this Court and this Court

vide order dated 18.03.2021 allowed the C.M.A by setting

aside the order dated 21.01.2021 passed in I.A.No.2321

of 2019 and remanded the matter for fresh disposal,

while directing the parties to maintain status quo as on

the date of the order till the disposal of I.A.No.2321 of

2019.

9. The learned Single Judge, after considering the rival

submissions of the parties, observed that there are

disputes between the petitioner and respondent Nos.4 to

9 for the land in Survey No.169(part) and held that the

ad interim injunction granted by the Civil Court holds

ground as on the date and upheld the power of

Commissioner in rejecting building permission.

10. Sri Vedula Srinivas, learned Senior Counsel

appearing for the appellant, would submit that the

municipal authorities are not having any power to

conduct a roving enquiry to determine title or ownership

of the property and the limited function entrusted under

Section 428 of the Act is only to consider the objections,

to make a pragmatic assessment of the material available

on record and to decide the question of prima facie title

and lawful possession of the parties and beyond that the

Commissioner is not entitled to decide any disputed

questions of title or ownership and basing on the same,

he cannot reject a building permission. Learned counsel

further submits that the decision to grant building

permission itself would not confer any title upon the

applicant nor it would take away the rights of the parties

making objections for ascertaining their title and interest

in the land in respect of which permission has been

granted and invariably, the disputes relating to title have

to be decided by the competent Civil Court. Further he

contended that as the appellant has prima facie satisfied

the requirement of title, as such the Commissioner ought

to have granted building permission and relegating the

appellant to approach the Civil Court would cause great

hardship, as the appellant has executed mortgage deed

and also remitted the demanded amount towards

development charges and the order of the Commissioner

suffers from non-application of mind. It is his further

contention that the injunction order passed in

I.A.No.1913 of 2019 in O.S.No.367 of 2019 when not

vacated, the appellant filed C.M.A.No.347 of 2021 and

this Court in I.A.No.2 of 2021 in C.M.A.No.347 of 2021

has granted interim orders suspending the orders dated

03.08.2021 passed in I.A.No.1913 of 2019 in O.S.No.367

of 2019 and as such there are no restraining orders

operating in respect of the subject property and

respondent No.2 is obligated to consider the material for

prima facie satisfaction to grant building permission and

since the Commissioner failed to discharge his duties, the

learned Single Judge ought to have interdicted the orders

of the Commissioner and allowed the writ petition. He

also submits that the learned Single Judge, without

taking into consideration the orders granted by this

Court suspending the order in I.A.No.1913 of 2019 in

O.S.No.367 of 2019, has dismissed the writ petition

which warrants interference of this Court, as appeal

amounts to continuation of the original proceedings. In

support of his contentions, learned counsel also placed

reliance on the judgment of this Court Mir Asad Sayeed

Khan Asad Khan vs. The State of Telangana1.

11. Per contra, Mr. R. Rakesh, learned counsel

appearing for respondent Nos.4 to 9, submits that the

MANU/TL/0208/2021

learned Single Judge, after taking note of the inter se

disputes pending among the parties and the extent of the

land purchased by the writ petitioner as forming part of

Survey No.169, in respect of which O.S.Nos.367 of 2019

and 112 of 2021 are pending for adjudication, rightly

observed that unless the same are decided on merits, the

dispute cannot attain finality. He strongly supported the

reasoning given by the learned Single Judge and prayed

for dismissal of the writ appeal.

12. Before we advert to the facts of the case, it is

necessary to examine the scope and ambit of power of the

Commissioner, Municipal Corporation under Sections

428 and 429 of the Act, in particular, his power to

examine title of the applicants for granting building

permission.

13. A perusal of the order passed by the Commissioner

reveals that the Commissioner has taken note of the

various cases pending among the parties and entered

upon the discussion of title and possession relating to

land and rights of the inter se parties, instead of

confining to satisfy himself of the prima facie title has

traversed the issues which do not fall within the purview

of the powers of Commissioner and relegated the parties

to approach the Civil Court.

14. We have carefully examined the provisions of the

GHMC Act which enable the Commissioner to entertain

building application. Under Section 428 of the Act, every

person intending to erect a building has to give notice to

the Commissioner expressing intention to erect building;

Section 429 of the Act enumerates the documents which

are necessary to be furnished along with the building

application; and Section 429(1)(aa) of the Act

presupposes enclosure of title deed of the land duly

attested by a Gazetted Officer as well as urban land

ceiling clearance certificate; and Section 438 of the Act

requires the Commissioner to record reasons to

disapprove any building or work. While considering the

application for building permission, the Commissioner is

required to adhere to the building bye-laws. A conjoint

reading of the provisions would show that there is no

specific provision or provisions which enable the

Commissioner to reject an application for building

permission on the ground that the ownership of the

person applying for building permission is in dispute. It

would further reveal that the Commissioner is not

empowered to entertain a title dispute and adjudicate the

same before disposing of the application for grant of

building permission. If any objection regarding title is

received by the Commissioner, the same is required to be

examined for forming a prima facie opinion with regard to

title and lawful possession and prima facie opinion never

being a material factor for grant of building permission. A

person setting up a rival claim of tile is entitled to resolve

the disputes before the competent Court.

15. In the instant case, admittedly, the Commissioner

having satisfied with the prima facie title and possession

of the appellant has granted tentative approval in File

No.1/C20/22171/2018 dated 17.01.2019 and directed

the appellant to remit a sum of Rs.1,66,53,310/- and the

same was paid on 16.11.2019. Further, revenue and

irrigation authorities had granted permission for

converting the land from agricultural use to non-

agricultural purposes and the electricity connection also

stands in the name of the appellant. These documents,

in our view, satisfy the prima facie requirement for

granting building permission subject to title disputes

being resolved by the competent Courts.

16. Further, much emphasis has been placed on the

pendency of the suits instituted by respondent Nos.4 to 9

i.e., O.S.No.367 of 2019 and O.S.No.112 of 2021 and the

ad interim injunction granted in I.A.No.1913 of 2019

dated 26.09.2019. In fact, initially the Court below has

granted ad interim injunction restraining the defendants

therein from interfering with the possession of the land to

an extent of Acs.2.00 in Survey No.169(part) of Kondapur

Village, Serilingampally Mandal, Ranga Reddy District.

The appellant filed I.A.No.2321 of 2019 in I.A.No.1913 of

2019 in O.S.No.367 of 2019 seeking vacation of the order

of ad interim injunction and the same was dismissed on

12.07.2021. Aggrieved thereby, the appellant filed

C.M.A.No.121 of 2021 before this Court and this Court

modified the said order to that of status quo order and

remanded the matter for fresh disposal. On remand, the

Court below dismissed the vacate application in

I.A.No.2321 of 2019 on 21.01.2021. Questioning the

dismissal order passed in I.A.No.1913 of 2019, the

appellant filed two C.M.As vide C.M.A.No.342 of 2021 and

347 of 2021. A Division Bench of this Court, after

considering the entire gist of the case, has granted

interim order in I.A.No.2 of 2021 in C.M.A.No.342 of 2021

suspending operation of the orders passed in I.A.No.1913

of 2019 vide order dated 12.08.2021. Similarly, the

interim injunction granted in favour of respondent Nos.4

to 9 was also suspended in I.A.No.2 of 2021 in

C.M.A.No.347 of 2021.

17. A reading of the above orders would disclose that

injunction orders granted in favour of respondent Nos.4

to 9 in I.A.No.1913 of 2019 in O.S.No.367 of 2019 dated

26.09.2019 are suspended and the same are not in

operation. No doubt, when there are restraining orders

issued by the competent Courts from entertaining

building applications, or granting building permission,

they have to be obeyed strictly, unless the order of

injunction is vacated/set aside by the competent Court of

jurisdiction. But mere pendency of the suits cannot ipso

facto act as a prohibition on the statutory powers

exercised by the Commissioner under the provisions of

the Act. Significantly, as on date there is no direction in

the suits restraining the statutory authority either from

entertaining building application or from grant of

building permission or preventing the authority to

examine the said applications strictly in accordance with

Sections 428 and 438 of the Act.

18. In Mir Asad Sayeed Khan Asad Khan (1 supra)

this Court while examining the scope and ambit of the

powers of the Commissioner of the Municipal Corporation

under Sections 428 and 429, after referring to various

judgments, held as follows:-

"33. We agree with the above observations in the above case that if 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."

19. For the aforementioned reasons, we allow the writ

appeal and set aside the order passed by respondent No.2

in Lr.No.1/C20/ 22171/2018/234, E-office No.226495,

dated 13.03.2021 with a direction to consider the

application of the appellant for grant of building

permission afresh within a period of four weeks from the

date of receipt of a copy of this order. It is clarified that

the observations made for the purpose of disposal of the

writ appeal shall not have any bearing on the merits of

the civil suits pending adjudication before the concerned

courts.

Miscellaneous applications, pending if any, shall