Telangana High Court

A. Mallesh Alias A.Mallesh Yadav vs The State Of Telangana And 3 Others on 28 March, 2024

  THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR

                  Writ Petition No.3092 of 2023

ORDER:

This writ petition has been filed seeking a writ of

mandamus to declare the action of respondents more

particularly respondent No.2 in passing the orders dated

02.01.2023 with Lr.No.1/C20/22171/2018/02/E-office

No.226495 granting building permission in favour of respondent

No.4 in respect of land forming part of Sy.Nos.165/P, 166/P,

167/P and 169/P situated at Maseed Banda, Kondapur,

Serlingampally mandal, Ranga Reddy District without issuing

notice to the petitioners and without conducting enquiry as

illegal, arbitrary and without following due process of law as

envisaged under the provisions of GHMC Act, 1955 and

consequently to set aside the order dated 02.01.2023 with

Lr.No.1/C20/22171/2018/02/E-Office No.226495 on the file of

respondent No.2.

Brief facts of the case:

2. This writ petition is filed by the GPA holder of petitioner

Nos.1 to 5. The brief facts of the case are that the petitioners

along with Late A.Ramaswamy are the biological brothers and NVSK, J

are sons of Late A.Sathaiah. The said Late A.Ramaswamy died

on 03.09.2021 leaving behind his sons as his sole surviving legal

heirs. The petitioner submits that they along with Late

A.Ramaswamy are the absolute joint owners of agriculture land

admeasuring Ac.2-00 gts., in Sy.No.169 (Part), situated at

Kondapur VIllage, Serilingampally Mandal, GHMC, Ranga Reddy

District (for short 'the subject property' hereinafter) have

acquired the same by way of purchase under registered sale deed

dated 24.12.1997 bearing Doc.No.6501/1998 from its previous

owners and since from the date of purchase they are in peaceful

possession and enjoyment of the subject property. It is

submitted that originally Buyya Narayana was the possessor of

the land admeasuring Ac.16-01 gts., in Sy.No.169 of Kondapur

Village, Serilingampally Mandal, Ranga Reddy District which

includes the present subject property in the capacity as

protected tenant and his name was also mutated in the revenue

records as pattadar and possessor.

3. The said Buyya Narayana died on 28.01.1990 leaving

behind his seven (7) sons along with heirs of his predeceased son

B.Venkataiah. They have executed a Registered General Power of

Attorney bearing Doc.No.140/1997 appointing Mr.Y.Jaihind NVSK, J

Reddy as their lawful attorney in respect of land admeasuring

Ac.6-00 guntas in Sy.No.169 of Kondapur Village,

Serilingampally Mandal, Ranga Reddy District out of Ac.16-01

gts., in Sy.No.169 of Kondapur Village, Serilingampally Mandal,

Ranga Reddy District who has later alienated the subject

property to the petitioners herein and thus, petitioners have

become absolute owners and possessors of the same.

4. It is submitted that the subject property was encircled

with compound wall and a temporary shed was erected in it for

watch and ward. It is further submitted that on 30.07.2019,

respondent No.4 along with one Anil Kumar Yadav and five (5)

others have come to the subject property and damaged the

property and contended that the petitioners are in illegal

possession of the property as the said property belongs to them.

Thereafter, the petitioners approached the Office of Registrar and

verified the encumbrances in respect of subject survey number

and noticed that respondent No.4 and others alleged to have

acquired part of land in the subject survey number which is

absolutely unconcerned to the subject property. It is further

submitted that the petitioners have obtained the registered sale

deeds which refers the names of respondent No.4 and others and NVSK, J

that the property included in such deeds are absolutely distinct

and different with that of the subject property.

5. In such circumstances, petitioners filed a suit in

O.S.No.367 of 2019 on the file of XV Additional District Judge,

Ranga Reddy at Kukatpally against respondent No.4 and others

for declaration and consequential injunction in respect of subject

property. Petitioners have also filed I.A.No.1913 of 2019 in

O.S.No.367 of 2019 to restrain respondent No.4 and others from

peaceful possession and enjoyment. The said Court was pleased

to grant interim injunction vide order dated 26.09.2019 and the

said suit is pending for adjudication.

6. It is further submitted that during the pendency of the

said suit, the representatives of STARLITE GLOBAL

ENTERPRISES (India Limited) have come to the subject property

on 15.02.2021 and tried to measure it and dumped the material

to carry construction activity which was resisted by the

petitioners. Later, the representatives of the said company

revealed that the said company had obtained land admeasuring

5782.52 sq.yds., in Sy.No.165 to 169 of Kondapur Village from

one Dr.Nageshwar Reddy which forms part of subject property, NVSK, J

under Development Agreement-cum-General Power of Attorney

dated 17.09.2019 bearing Doc.No.19906/2019. When the

petitioners verified with the concerned Offices, it was revealed

that Y.Jaihind Reddy who is Power of Attorney of Buyya

Rukkamma and 23 others had alienated excess land than Ac.6-

00 gts., in favour of B.Balraj @ Balraj Goud, Medchal

Lakshmiamma, M.Jyoshna and Y.Anthi Reddy. It is further

submitted that the said Y.Jaihind Reddy alienated their

respective extents in favour of various persons as per their lawful

entitlement and had also alienated the land to an extent of

Ac.6-00 gts., in subject survey number without holding any

lawful entitlement and created unlawful documents. The above

said B.Balraj, Medchal Lakshmiamma, M.Jyoshna and Y.Anthi

Reddy further alienated the land in favour of various persons.

7. It is further submitted that certain alienations were

made in Sy.Nos.169 (Part), 165, 166, 167 situated at Kondapur

Village, Serilingampally Mandal to various parties and the

petitioners knowing the concern of Dr.Nageswar Reddy filed I.A.

to implead him as defendant No.8 in O.S.no.367 of 2019 on the

file of XV Additional District Judge, Ranga Reddy District at

Kukatpally and the same is pending for adjudication. It is further NVSK, J

submitted that said Y.Jaihind Reddy was very much aware

about the ownership and possession of the petitioners over the

subject property, despite knowing the same had created

fraudulent documents and alienated excess extent of land to

various other persons including Dr.Nageswar Reddy and Starlite

Global Enterprises by misrepresenting respondent No.2 and

Punjab National Bank and created various sale deeds.

8. It is submitted that respondent No.4 and others are

indulging in criminal activities which deserve for prosecution for

which necessary steps were initiated. It is also submitted that

respondent No.4 and others are trying to encumber the subject

property relying on various sale deeds and one gift deed dated

17.05.2019 was executed to create cloud on the ownership and

possession of petitioners over the subject property. Therefore,

petitioners filed a suit in O.S.No.112 of 2021 for declaration and

consequential injunction on the file of XV Additional District

Judge, Ranga Reddy District at Kukatpally and the same is

pending for adjudication. It is further submitted that petitioners

have filed I.A.No.1913 of 2019 in O.S.No.367 of 2019 for grant of

interim injunction, accordingly exparte injunction was granted

on 26.09.2019 restraining respondent No.4 and its men from NVSK, J

interfering with the possession of the petitioners. Aggrieved over

the same, respondent No.4 filed I.A.No.2321 of 2019 in

I.A.No.1913 of 2019 in O.S.No.367 of 2019 seeking to vacate the

interim orders dated 26.09.2019. Upon hearing the same, the XV

Additional District Judge dismissed the said I.A.No.2321 of 2019

vide order dated 21.01.2021. Aggrieved again, respondent No.4

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

Court vide order dated 08.03.2021 allowed the same remanding

back the matter for fresh disposal with a direction to maintain

status quo till the disposal of I.A.No.2321 of 2019.

9. Thereafter, XV Additional District Judge vide orders

dated 12.07.2021 dismissed the said I.A.No.2321 of 2019.

Aggrieved over the same, respondent No.4 preferred

C.M.A.No.342 of 2021 which is pending for adjudication.

Respondent No.4 herein also preferred C.M.A.No.347 of 2019

against the docket orders dated 03.08.2021 in I.A.No.1913 of

2019, which is also pending for adjudication.

10. The petitioner further submits that, respondent No.4

made an application dated 21.11.2018 with reference

No.1/C20/22171/2018 to respondent No.2 herein for grant of NVSK, J

building permission in respect of part of subject property and

respondent No.2 without conducting any enquiry and without

issuing any notices to the concerned parties like the petitioners

issued a Fee Intimation Letter dated 11.03.2019 directing to

remit an amount of Rs.1,66,53,310/- for grant of building

permission. Aggrieved over the said letter, petitioners herein filed

W.P.No.28703 of 2019 before this Court. During the hearing,

respondent No.2 placed a letter before this Court stating that no

permission was granted as of then and objections dated

17.11.2019 raised by the petitioners will be examined in detail

by calling all parties and conduct hearing before disposal of the

building permission application. Recording those submissions,

this Court dismissed W.P.No.28703 of 2019 vide order dated

27.01.2020.

11. It is submitted that thereafter, respondent No.2

conducted hearing on 07.08.2020, 21.08.2020 and 28.08.2020

and passed orders dated 18.09.2020 with

Lr.No.1/C20/22171/2018/674/E-office No.226495 observing

that 'the decision with regard to building permission will be

taken based on the outcome of O.S., which is still pending' and

advised both the parties to approach Civil Court for redressal of NVSK, J

dispute. Questioning the said order dated 18.09.2020 issued by

respondent No.2, respondent No.4 filed W.P.No.17287 of 2020

before this Court and this Hon'ble Court vide order dated

11.11.2020 had set aside the order dated 18.09.2020 and

remanded the matter to respondent No.2 for fresh consideration

after affording opportunity of hearing to both parties.

12. Thereafter, respondent No.2 had taken up matter

afresh and conducted hearing on 04.01.2021 and 22.01.2021

while receiving the written arguments, directed the parties to

approach Civil Court for redressal of the dispute and basing on

the outcome of the Original Suit, further action will be taken on

building permission application of respondent No.4. Consequent

to such orders dated 13.03.2021, respondent No.4 approached

this Court once again by way of W.P.No.15026 of 2021 seeking to

set aside order dated 13.03.2021 and this Court after detailed

hearing was pleased to dismiss the writ petition vide order dated

29.07.2022 confirming the orders dated 13.03.2021 on the file of

respondent No.2. Thereafter, respondent No.4 aggrieved by the

said order dated 29.07.2022, preferred a writ appeal in

W.A.No.563 of 2022 before this Court. A Division Bench of this

Court has allowed the writ appeal vide judgment dated NVSK, J

18.10.2022 setting aside order of respondent No.2 dated

13.03.2021 with a direction 'to consider the application of

applicant (respondent No.4) herein for grant of building

permission afresh within a period of four (4) weeks from the date

of receipt of a copy of this order.'

13. It is further submitted that respondent No.2 without

issuing any notice to the petitioners and without conducting any

enquiry and without following due process of law under GHMC

Act, 1955 passed the impugned order dated 22.01.2023 granting

building permission to respondent No.4 and the copy of same

was sent to the petitioner. Questioning the same, the present

writ petition i.e., W.P.No.3092 of 2023 is filed.

14. This Court on 03.02.2023 has granted status quo and

passed the following order:

"Notice before admission.

Personal notice to R.4 is permitted.

List on 24.02.2023.

Status quo obtaining as on today shall be maintained by both the parties till then."

15. Thereafter, respondent No.4 filed I.A.No.2 of 2023 to

vacate the interim order granted on 03.02.2023. In the counter NVSK, J

affidavit it is submitted that question of hearing the petitioners

once again after the judgment in W.A.No.563 of 2022 passed on

18.10.2022, by respondent No.2 does not arise at all and the

petitioners cannot complain that they should be heard once

again and on that ground alone cannot seek to set aside the

order of respondent No.2. It is further submitted that this Court

has categorically declared in its judgment in W.A.No.563 of 2022

that the mere pendency of the suits cannot ipso facto act as

prohibition on the statutory powers exercised by the

Commissioner. It is further submitted that the entire lis relates

to the building permission granted by the GHMC in favour of

petitioner/respondent No.4 which came to an end by way of

judgment of this Court in W.A.No.563 of 2022 dated 08.10.2022

to which the petitioners were parties and they have raised all

possible contentions.

16. It is further submitted that the injunction granted in

favour of the petitioners in I.A.No.1913 of 2019 in O.S.No.367 of

2019 dated 26.09.2019 has been suspended by this Court in

C.M.A.No.347 of 2019 and orders passed in I.A.No.2321 of 2019

in O.S.No.367 of 2019 was also suspended in C.M.A.No.342 of

2021vide order dated 03.08.2021 and the said orders are still in NVSK, J

force and by virtue of the same and at present petitioners do not

have any orders granted by the Civil Court in their favour. That

being so, respondent No.2 is entitled to consider the application

without reference to the pendency of the civil suit.

17. It is further submitted that subsequent to the judgment

in W.A.No.563 of 2022 respondent No.4 followed up with the

office of respondent No.2 vigorously and had addressed letters on

20.10.2022 and 28.10.2022 and thereafter GHMC served him

with letter dated 02.01.2023 seeking payment of Rs.42,81,912/-

towards CRMP charges and labour cess and Rs.51,65,262/-

towards City Level Infrastructure Impact Charges and that

respondent No.2 had also informed respondent No.4 and their

GPA vide letter dated 02.01.2023 stating that the applicant shall

submit notarized affidavit that it will comply with the adverse

orders if any at a later date in any Court case/litigation and

giving liberty to GHMC for taking action as per Rules and

thereafter the petitioner/respondent No.4 made payment as

required by the GHMC and also submitted notarized affidavit

and filed the same in the office of respondent No.2 and in view of

the same pray this Court to vacate the orders dated 03.02.2023

and dismiss the writ petition.

NVSK, J

18. The petitioner has filed a reply affidavit would submit

that as per the observations of Hon'ble Division Bench, it is

evident that respondent No.2 has to consider the application

afresh and that the petitioners has right to be heard and that the

impugned proceedings are not in accordance with the judgment

in W.A.No.563 of 2022 and reiterated the same facts as stated in

the writ petition and would further submit that in order to

safeguard petitioners title over the property, the building

permission cannot be granted.

19. Respondent No.2 has filed a counter affidavit stating

that a proposal was submitted by respondent No.4 in DPMS file

No.1/C20/22171/2018 for Multistoried Residential Building

permission with Tower-A and B consisting of 2-

Basements+Ground+13 upper floors each tower in

Sy.Nos.165/P, 166/P, 167/P and 169/P, Maseeb Banda,

Kondapur, Serilingampally on the site area 4791.71 sq.mts. It is

further submitted that petitioner No.1 through GPA holder

lodged a complaint stating that the petitioners are the absolute

owners of the property by virtue of registered document

No.6501/1998 and that respondent No.4 misrepresented the

facts and placed fabricated documents to grab the subject NVSK, J

property and tried to interfere with the possession of the

property and thereby requested to cancel the building

permission in File No.1/C20/22171/2018.

20. Thereafter, respondent No.2 vide letter dated

27.01.2020 informed the petitioners that no permission was

issued on the subject land and that objection petitioner will be

examined in detail and if necessary, a hearing will be conducted

calling all the parties concerned before disposing of the building

permission application filed by respondent No.4. It has also come

to the knowledge of respondent No.2 that the petitioners have

filed suits before XV Additional District Sessions Judge, Ranga

Reddy District against third parties in respect of subject property

and the same is pending for adjudication and petitioners also

filed a writ petition in W.P.No.28703 of 2019 praying to cancel

the permission dated 11.03.2019 and this Court was pleased to

dismiss the said writ petition on 27.01.2020. Thereafter,

hearings were conducted on 07.08.2020, 21.08.2020 and

28.08.2020 along with petitioners and respondent No.4 through

Video Conference (Google meet) and after examining the written

arguments submitted by both the parties, Hearing Orders

No.1/C20/22171/2018/674 dated 18.09.2020 were passed NVSK, J

holding that the decision with regard to the building permission

will be passed on the outcome of O.S.No.367 of 2019 which is

pending between the petitioners and the third parties and that

both the parties were advised to approach the Civil Court for

redressal of dispute.

21. Aggrieved by the said orders, respondent No.4

approached Hon'ble High Court vide W.P.No.17287 of 2020

praying to set aside the impugned order dated 18.09.2020 and

this Court vide order dated 11.11.2020 through Video

Conference allowed the writ petition and remanded the matter

back to respondent No.2 to pass orders afresh strictly in

accordance to law within a period of four (4) weeks. In

compliance of the said orders, hearing was conducted on

04.01.2021 with both the parties and after examining the written

arguments with documents filed by both the parties, the

answering respondent passed Hearing Orders on 13.03.2021

holding that since O.S. is pending, both the parties were directed

to approach Civil Court to redress their dispute and that basing

on the outcome of the O.S., further action will be taken on

building permission application.

NVSK, J

22. Thereafter, aggrieved by the above hearing orders,

respondent No.4 once again approached this Court by way of

W.P.No.15026 of 2021 to set aside the hearing orders issued by

this respondent and this Court vide order dated 29.07.2022 has

dismissed the writ petition observing as under:

"Therefore, it is clear that the possession of the subject property is under dispute and is yet to be decided and the Civil Court is not only seized of the matter, but has granted an interim order, which is in force. In such circumstances, the Commissioner cannot be found fault with for directing the parties to approach the Civil Court. A Coordinate Bench of this Court in the case of V.Jaya Prakash Vs. Commissioner of Municipality, Khapra Municipality, Kapra, R.R. District and another 2 in W.P.No.3979 of 2003 dt.24.11.2003 has considered similar issue and also various precedents on the issue to hold that it is always open to the Commissioner to come to a prima facie conclusion and reject permission and advise the parties to go before Civil Court for a decision on the title dispute."

23. Aggrieved by the said orders, respondent No.4 preferred

W.A.No.563 of 2022 and this Court vide judgment dated

08.10.2022 allowed the writ appeal.

NVSK, J

24. Thereafter, respondent No.4 filed representations dated

20.10.2022 and 28.10.2022 requesting to consider the building

permission duly enclosing the orders of the Division Bench

comprising the judgment of the Hon'ble Division Bench in

W.A.No.563 of 2022. In compliance of the said judgment in

W.A.No.563 of 2022, the proposal of respondent No.4 was

examined in terms of existing rules and G.Os in force and

thereafter respondent No.2 considered for grant of permission for

multi-storeyed building in Sy.No.165/P, 166/P, 167/P, 169/P,

Maseed Banda, Kondapur, Serilingampally in favour of

respondent No.4 as the prima facie factors were satisfied and the

same was informed to both the parties vide letter dated

02.01.2023 and accordingly respondent No.4 was informed to

pay additional fees/charges and respondent No.4 vide letter

dated 03.01.2023 informed that they have paid the same. It is

further submitted that the proposal has been considered in

compliance that the orders in W.A.No.563 of 2022 dated

08.10.2022 and the respondent has also been directed to submit

notarized affidavit that it shall comply with the adverse orders at

a later date in any Court case/litigation, giving liberty to the

office of the answering respondent for taking action as per rules

and that permission is not yet released. In the meantime, the NVSK, J

petitioner has filed the present writ petition and this Court has

granted an order of status quo on 03.02.2023 and accordingly

building permission is not yet released and eventually denies the

other allegations and prays to dismiss the present writ petition.

25. Thereafter, vide I.A.No.3 of 2023 petitioner/respondent

No.4 had filed material documents stating that in furtherance to

the letter dated 02.01.2023 requiring the respondent to file

notarized affidavit to the effect that applicant shall comply in any

Court case/litigation for taking action as per rules, the

respondent No.4 had already filed an affidavit and the same was

acknowledged on 03.01.2023. It is further submitted that such

practice of GHMC would protect the interest of any third party. It

is further submitted that respondent No.4 has already paid an

amount of Rs.1,66,53,310/- on 16.11.2019 when the temporary

approval was granted on 17.01.2019 and the GHMC has

inspected the said land and requested respondent

No.4/petitioner to give consent for acquiring an extent of 682.44

sq.yds., for the purpose of road widening and that the petitioner

registered gift deed dated 17.05.2019 in Doc.No.8820/2019 in

respect of such extent in Sy.No.165, 166, 167 and 169 and that

GHMC has issued TDR Certificate permitting the NVSK, J

petitioner/respondent No.4 to use TDR value along with all area

either in subject site or elsewhere.

26. It is further submitted that subsequent to the orders

passed, respondent No.4 has paid Rs.42,81,912/- towards

CRMP charges and labour cess and Rs.51,65,262/- towards City

Level Infrastructure Impact Charges and as such fulfilled all

requirements as per GHMC byelaws and also submitted

notarized affidavit which will take care of the interest of the third

parties like the petitioners.

27. Heard learned counsel for the petitioners; learned

Government Pleader for Municipal Administration and Urban

Development for respondent No.1 and learned Standing counsel

for respondent Nos.2 and 3 and Mr.Vedula Srinivas, learned

senior counsel for respondent No.4. Perused the material

available on record.

28. In the orders passed in W.A.No.563 of 2022 dated

08.10.2022, the Division Bench has elaborately considered the

provisions of GHMC Act, powers of Commissioner under Section

427 particularly his power to examine the title of application for NVSK, J

granting building permission and the provisions of the Act which

would enable the Commissioner to entertain building

applications. It is further observed that the Commissioner having

satisfied prima facie with the title and possession has granted

tentative approval in file 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 and further revenue and irrigation

authorities have also granted permission for converting the land

from agriculture to non-agriculture purposes and also electricity

connection stands in the name of the appellant. The said

documents, in their view, would prima facie satisfy the

requirement for grant building permission subject to title dispute

being resolved by the competent Court and held as follows:

"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 NVSK, J

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 NVSK, J

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."

29. On a careful analysis of the said observation, directing

respondent No.2 to consider the building application afresh and

that respondent No.2 vide order dated 02.01.2023 considered

the application as per the provisions of GHMC Act and informed

respondent No.4 to submit notarized affidavit that the applicant

shall comply the adverse orders if any at a later date in any

Court case/litigation and has given liberty to GHMC to take

action as per rules. The petitioner has paid the requisite

fees/charges and has executed an affidavit dated 03.01.2023

and has confirmed that respondent No.4 would undertake to

comply with the conditions stipulated by the GHMC and also

abide by any adverse orders passed in O.S. pending before XV