The Commissioner, vs Smt. K. Venkata Sandhya
2023 Latest Caselaw 565 Tel

         THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                        AND
              THE HON'BLE SRI JUSTICE N. TUKARAMJI


                   WRIT APPEAL No.155 of 2023

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


       Heard Mr. M.Dhananjay Reddy, learned Standing

Counsel for Greater Hyderabad Municipal Corporation

(GHMC) for the appellants and Mr. P.Radhive Reddy,

learned counsel for respondent No.1/writ petitioner.

2. This intra-court appeal has been filed by GHMC and

its officials against the order dated 01.12.2022 passed by

the learned Single Judge disposing of W.P.No.43031 of

2022 filed by respondent No.1 as the writ petitioner.

3. Respondent No.1 had filed the related writ petition

seeking the following relief:

To issue an order or direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd and 4th respondents herein in rejecting my application vide File No. 2/C26/13493/2020, dated 03.10.2020, for building

plan approval vide Letter No. 2/C26/13493/2020 dated 13.10.2020 with respect to Petitioner's house Plots Nos. P-77, P-78 and P-79 of Mahadevapuram Residential Project, situated in Sy. Nos. 329/9 and 329/7 (Part) of Gajularamaram Village Qutuballapur Mandal even though the subject properties were regularized by the 2nd respondent vide Proceedings. No. LRS/2666/ 1351/C15/NZ/2008, dated 19.11.2011, in terms of G.O.Ms. No. 902, MA, dated 31.12.2007, as arbitrary, illegal, null and void, against norms of public policy and principles of natural justice and in violation of fundamental rights guaranteed under Constitution of India apart from violative of Article 300-A of the Constitution of India and to set aside the same and consequently to direct the respondent authorities to process her application in File No. 2/C26/13493/2020, dated 03.10.2020 without going into the aspect of title of subject matter plots.

4. Grievance expressed by respondent No.1 before the

learned Single Judge was with regard to the shortfall notice

dated 13.10.2020 issued by GHMC to respondent No.1

stating amongst others that the Tahsildar, Quthbullapur

Mandal, vide letter dated 05.01.2018 had informed that

land admeasuring Acs.255.28 guntas in Survey No.329 of

Gajularamaram Village is being treated as government land

and continues to remain in the possession of the

government.

5. The aforesaid remarks were made in the context of

building permission sought for by respondent No.1 from

GHMC for construction of residential building consisting of

one floor in Plot Nos.P-77, P-78 and P-79 in Survey

Nos.329/9 and 329/7 (part) situated at Gajularamaram

Village, Quthbullapur Mandal, Medchal District (subject

land).

6. According to respondent No.1, she had purchased the

subject land admeasuring 600 square yards by way of a

registered sale deed on 15.12.2011. Vendor of respondent

No.1 had purchased the same by a registered sale deed in

the year 2003. According to respondent No.1, she had

made an application for regularisation of the subject land

before the competent authority which was granted vide

proceedings dated 19.11.2011. Respondent No.1 had

made an application to GHMC seeking building permission

on 03.10.2020. However, Town Planning Officer of GHMC

issued impugned letter dated 13.10.2020 which for all

intent and purpose amounted to rejection of building

permission. Aggrieved, the related writ petition came to be

filed.

7. Learned Standing Counsel for GHMC had sought for

time to file counter affidavit. However, relying on the

earlier decision of this Court in Hyderabad Potteries

Private Limited v. Collector, Hyderabad District1,

learned Single Judge disposed of the writ petition directing

the appellants to process the application of respondent

No.1 for building permission without taking into

consideration letter of the Tahsildar dated 05.01.2018

subject to compliance of other shortfalls by respondent

No.1.

8. Learned Standing Counsel for the appellants submits

that learned Single Judge ought to have granted time to

the appellants to file counter affidavit. It was not justified

to dispose of the writ petition without granting reasonable

2001 (3) ALD 600

opportunity to the contesting respondents (appellants

herein) to file counter affidavit. That apart, the subject

land is a government land. On government land no

building permission can be granted by GHMC. Without

making the government a party, respondent No.1 had filed

the writ petition which was accordingly disposed of. He,

therefore, submits that order of the learned Single Judge

may be set aside.

9. Per contra, Mr. P.Radhive Reddy, learned counsel for

respondent No.1 submits that he was present in the

hearing before the learned Single Judge. Though learned

Standing Counsel for GHMC had initially sought for time,

nonetheless as the hearing progressed, learned Standing

Counsel participated in the hearing and contested the

proceedings. That apart, the law on this point is very well

settled by the decision rendered in Hyderabad Potteries

(supra) which decision has since been followed by a

Division Bench of this Court. Therefore there is no merit in

the writ appeal which should be dismissed.

10. Submissions made by learned counsel for the parties

have been duly considered.

11. The decision of this Court in Hyderabad Potteries

(supra) has been affirmed by the Supreme Court in State

of Andhra Pradesh v. Hyderabad Potteries2. Thereafter,

in Commissioner v. Syed Iftekhar Ahmed (W.A.No.403 of

2022, dated 05.07.2022), it has been held that municipal

authority is required to make a pragmatic assessment of

the materials on record and decide the question of prima

facie title and lawful possession of the applicant.

Application for grant of building permission cannot be

rejected on the basis of TSLR entries. All that municipal

authority is required to do is to find out prima facie title

and lawful possession. Following the aforesaid decision,

this Court in Greater Hyderabad Municipal Corporation

v. M/s. Sipil Infra Pvt. Ltd. (W.A.No.67 of 2023, dated

19.01.2023) held that if the State has a better claim to the

subject property, it has the remedy to establish its claim.

Till such time, it cannot have a veto over grant of building 2 (2010) 5 SCC 382

permission by the municipal authority if the latter is prima

facie satisfied about the title and possession of the subject

land by the applicant.

12. Therefore, we are of the view that merely on the basis

of the letter of Tahsildar dated 05.01.2018, appellants

could not have declined building permission to respondent

No.1. To that extent, learned Single Judge was justified in

directing the appellants to consider the prayer for building

permission made by respondent No.1 de hors the letter of

the Tahsildar dated 05.01.2018.

13. Insofar grant of time to file counter affidavit is

concerned, we are of the view that the same depends upon

the facts and circumstances of each case. In many cases,

based on the instructions received by the Standing Counsel

or Government Pleader from the respective departments,

cases are decided. In this case what was under challenge

is the shortfall notice dated 13.10.2020. By filing affidavit

appellants could not have improved upon the shortfall

notice dated 13.10.2020. In fact, the law on this point is

well settled. An order must be capable of being defended

on the basis of the contents contained in the order itself.

The same cannot be improved upon by way of affidavit (see

Commissioner of Police v. Gordhandas Bhanji3 and

Mohinder Singh Gill v. Chief Election Commissioner4).

14. In view of the above, writ appeal is dismissed.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ N. TUKARAMJI, J 03.02.2023 vs

3 AIR 1952 SC 16 4 (1978) 1 SCC 405