The Greater Hyderabad Municipal ... vs G Madhuri And Another
2023 Latest Caselaw 775 Tel

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


                   WRIT APPEAL No.198 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. E.Venkata Siddhartha,

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 15.11.2022 passed by

the learned Single Judge disposing of W.P.No.41542 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 respondents more particularly respondent No.3 in rejecting the building permission application of the petitioner by way issuing

the impugned Letter vide Lr.No.10741/TPS/ KPZ/GHMC/2021 dated 26.07.2021, in respect of Petitioner's Plot bearing No.M-5A, admeasuring 300 sq.yds, in Sy.No.329/4 and 329/5, situated at Mahadevapuram Residential Project - Phase III, Gajularamaram Village Qutuballapur Mandal, Medchal- Malkajgiri District, as illegal, arbitrary, in violation of Articles 14, 21 and 300-A of Constitution of India and also in violation of GHMC Act, besides being in violation of principles of natural justice and to consequently set aside the impugned Letter vide Lr.No.10741/TPS/ KPZ/GHMC/2021 dated 26-07-2021, in respect of Petitioner's Plot bearing No.M-5A, admeasuring 300 sq.yds, in Sy.No.329/4 and 329/5, situated at Mahadevapuram Residential Project-Phase III, Gajularamaram Village, Quthubullapur Mandal, Medchal-Malkajgiri District thereby direct the respondents to accord the building permission based on petitioner's application vide file No.3/C27/02507/2021, dated 05-02-2021.

4. Grievance expressed by respondent No.1 before the

learned Single Judge was with regard to the shortfall notice

dated 17.03.2021 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 in Survey No.329/1 to 10 of Gajularamaram Village is

being treated as government land and continues to remain

in the possession of the government. Respondent No.1 has

also challenged the order dated 26.07.2021 passed by

appellant No.2 whereby respondent No.1 was informed that

her application for building permission cannot be

considered.

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 in Plot

No.M-5A in Survey No.329/4 and 329/5 situated at

Gajularamaram Village, Quthbullapur Mandal, Medchal

District (subject land).

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

subject land by way of a registered sale deed on

19.08.1995. She had made an application to GHMC

seeking building permission on 05.02.2021. However,

Town Planning Officer of GHMC issued letter dated

17.03.2021 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 by

setting aside the order dated 26.07.2021 and by 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

opportunity to the contesting respondents (appellants

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

land is a government land. On government land no

2001 (3) ALD 600

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. E.Venkata Siddhartha, 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

permission by the municipal authority if the latter is prima

2 (2010) 5 SCC 382

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 17.03.2021. By filing affidavit

appellants could not have improved upon the shortfall

notice dated 17.03.2021. 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 14.02.2023 vs

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