Telangana High Court
Challa Rajendra Prasad vs State Of Telangana on 1 April, 2021
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No. 2753 OF 2021
ORDER:
This Writ Petition is filed seeking the following relief:
".... to call for the records from the office of the 2nd respondent in File No. 1/C18/02207/2020 and declare the action of the 2nd respondent in rejecting the application dated 03.02.2020 vide File No. 1/C18/02207/2020 filed for grant of building permission in property bearing Municipal No.8-2- 269/4A, Road No. 2, Banjara Hills, Hyderabad, vide Letter No. 1/C18/02207/2020, dated 20.08.2020 on the ground that the proposed site in Sy. No. 403/1 is Government Land, as illegal, arbitrary, and contrary to Section 429(aa) of the Greater Hyderabad Municipal Corporation Act, 1955 and bye-law No.4(2) of the building bye-laws and violative of fundamental rights guaranteed under Articles 14 and 300A of the Constitution of India, and consequently, direct the respondents
2 and 3 to grant building permission as per the provisions of Greater Hyderabad Municipal Corporation Act, 1955..." The case of the petitioner, in brief, is that he is the owner of the house property bearing H. No. 8-2-26/4/A, Road No. 2, Banjara Hills, Hyderabad, admeasuring 2860 sq.yards having purchased the house plot under a registered sale deed No. 2662 of 1965, dated 13.11.1965 along with his brother, Challa Sri Prakash. Subsequently, Challa Sri Prakash gifted his portion of the property to the petitioner under a registered Gift deed, dated 26.11.1983. Since there was no approved lay-out, petitioner filed W.P. No. 2110 of 1980 and as per the orders of this Court dated 22.07.1986, the respondent Nos. 2 and 3 had granted building permission and the petitioner had constructed a residential building and has been living therein. However, with an intention to rebuild the house, the petitioner made an application on 03.02.2020 to the respondents seeking permission for construction of residential building consisting of 2 Cellars + 1 Stilt + 5 upper floors. By the impugned order, dated 20.08.2020, the respondent No. 2 rejected the application of the petitioner on the ground that 2 the proposed site i.e., Sy. No. 403/1 is Government land. Hence, this writ petition.
Mr. C.V. Mohan Reddy, the learned Senior Counsel for the petitioner, has contended that the petitioner along with his brother had purchased the subject property in the year 1965 under a registered sale deed, dated 13.11.1965; that in pursuance of the orders passed by this Court in W.P. No. 2110 of 1980, dated 22.07.1986, the petitioner was granted building permission by the respondents and he has constructed a residential building. The learned Senior Counsel has submitted that no provision under the GHMC Act, 1955 or Building Bye-laws enables the respondents to reject an application on the ground of ownership of the applicant being doubtful. What all the municipal officials require to do is to find out prima facie title and lawful possession of the applicant, but they have no authority to determine the title of the applicant. Therefore, the respondents grossly erred in refusing the permission on the mere assumption that it is a Government land, more particularly, when they had granted building permission to the petitioner in the year 1981 itself in respect of the very same property. The respondents have also lost the sight of the fact that they have granted building permissions to the neighbouring properties falling in the same survey number.
Per contra, the learned Standing Counsel, on instructions, has argued that as per the town survey land records, the subject land is reflected as Government land and is part and parcel of Sy.No.403 of Shaikpet village, that the entire Sy. No. 403 is Government land and therefore, the municipal authorities, in order to protect the Government lands, have rejected the application for building permission submitted by the petitioner. The learned 3 Standing Counsel submits that in case the petitioner submits 'No Objection Certificate' from the revenue authorities, or from the District Collector concerned, the official respondents will definitely consider and pass appropriate orders on the application for building permission submitted by the petitioner.
Heard Mr. C.V. Mohan Reddy, the learned Senior Counsel for the petitioner and Sri Pasham Krishna Reddy, the learned Standing Counsel for the respondents.
Admittedly, in the present case, the petitioner had constructed a residential house by obtaining the building permission from the respondents Corporation pursuant to the orders passed by this Court in W.P. No. 2110 of 1980, dated 22.07.1986. A residential building is already in existence as on date in the subject property. The proceedings initiated by the Government in land grabbing case being L.G.C. No. 88 of 1998, in respect of very same survey number, were also quashed by this Court in W.P. No 28402 of 1998, dated 17.11.1999, which was disposed of along with W.P. No 22323 of 1996 and batch. The learned Standing Counsel for the respondents has also not denied the same. Now, when the petitioner wants to construct a new building in place of old existing one and submitted a fresh application for building permission, the respondent authorities cannot take a stand that the said land is Government land. Moreover, it is not the case of the respondents herein that the Revenue Department has filed any suit for declaration in respect of the subject property or for eviction of the petitioner or for resumption of possession of the subject property before a competent Civil Court. Moreover, no reason was given as to why the petitioner alone is being denied of the building permission 4 when the neighbouring owners of the properties, which fall in the very same survey number, have been granted building permissions.
As seen from the impugned rejection order, the sole ground for rejection of the application of the petitioner for building permission is that the subject property is Government land. In this connection, it is pertinent to refer to the letter, dated 28.10.2005 issued by the Commissioner, Town Planning Section (HO), MCH. This letter emanated in the process of petitioner handing over part of the subject land to the municipal authorities for the purpose of road widening. In the said letter, the petitioner was enlightened in detail as to the compensatory benefits/concessional permission and the entitlement of the permissible built up area for re-development of the remaining portion of the site excluding the portion affected in road widening. This letter itself belies the stand taken by the respondents in the impugned rejection order that the land is Government land. If the contention of the respondents that the subject land is a government land is to be taken as true, there was no reason for paying any compensation or issuing of TDR for the land which is acquired for the purpose of road widening.
Be that as it may, in the present case, the application of the petitioner, seeking building permission, was rejected on the ground that the land is Government land apart from touching the validity of the title of the petitioner. Time and again, this Court has held that the municipal authorities cannot step into the shoes of the revenue authorities. In this connection, it is pertinent to refer to the decision of this Court rendered in Hyderabad Potteries 5 Private Limited vs. Collector, Hyderabad District1, this Court, at para 40, has held as under:
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 Commissioner required to do is to find out prima facie title and lawful possession of the applicant and obviously such consideration is confined to only for the purposes of granting permission and nothing more.
Further, in the case of T. Rameshwar v. Commissioner, Municipal Corporation of Hyderabad 2006 (3) ALD 337, this Court has held under:
"Therefore, the law as interpreted by this Court with reference to HMC Act and the Act, which requires the Commissioner to consider the objections, as and when they are raised, for grant of permission on the ground of title in a pragmatic manner taking into consideration only prima facie factors. While doing so, the Commissioner cannot assume the role of an adjudicator or arbitrator and decide the title inter se between the applicant for building permission and the objector of such building permission. If the applicant is able to show that prima facie such applicant has a right to proceed with the construction notwithstanding the pendency of any litigation by way of a suit or other proceeding subject to the applicant applying the certain conditions, the Commissioner may either grant permission or postpone the grant of permission."
Dealing with similar issue, this Court in K. Pavan Raj v. M.C.H. Rep. by its Commissioner2, held under:
A careful reading of the provisions of the Act and the Bye- laws does not indicate that the Commissioner is empowered to entertain a title dispute and adjudicate the same before disposing of the application for grant of building permission. Indeed, both the provisions of Sections 428 and 429 and clause (v) of Bye-law 4.2 envisage filing of copies of title deeds and there is no provision under which the Commissioner can reject grant of building permit on the ground of title dispute. As held in Hyderabad Potteries (1 supra), if any objection regarding title is received, the Commissioner is required to be prima facie satisfied about the 1 (2001) 3 ALD 600 2 (2008(1) A.P.L.J.2 (HC) 6 applicant's title to the property and his lawful possession of the same and he cannot decide title dispute because that is neither one of the duties assigned to him nor he is provided with such an adjudicatory mechanism. A person setting up a rival claim of title, is free to approach the court of competent jurisdiction and seek appropriate relief in that regard. If the 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. Therefore, wherever the Commissioner is, prima facie, satisfied about the legal title of the applicant and his lawful possession, he is bound to consider the application for building permission on merits, leaving the objector free to approach an appropriate court of law."
For the above-mentioned reasons and the settled legal position as enumerated above, this Court is of the opinion that the impugned rejection order passed by the respondent No. 2 is liable to be set aside.
Accordingly, the writ petition is allowed setting aside the impugned. The respondents are, hereby, directed to consider the application of the petitioner for building permission without referring to the earlier stand taken by them that the subject land is a government land, the authorities shall duly take into account the law laid down by this Court as well as the Apex Court in the cases cited supra and also the building permission granted earlier, and grant the same strictly in accordance with the provisions of the GHMC Act, 1955 and the Building Bye-laws etc., within a period of four weeks from the date of receipt of a copy of this order.
Miscellaneous petitions pending, if any, shall stand closed.
__________________________ A.ABHISHEK REDDY, J Date:01-04-2021 tsr