Telangana High Court
Ammula Kamala Deepti vs The State Of Telangana And 4 Others on 23 December, 2020
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.12067 of 2020
ORDER:
This writ petition is filed challenging the action of respondent Nos.2 to 4 in issuing fresh sanction vide File No.2/C16/06419/2020 permit No.2/C16/06659/2020, dated 25.06.2020, for construction of fifth floor on the existing structure, which was constructed as per the sanctioned plan vide permit dated 28.06.2017, in favour of respondent No.5, in the premises bearing H.No.3-6-379/1, Kashish Avenue, Street No.2, Himayath Nagar, Hyderabad.
Heard the learned counsel for the petitioner, the learned Government Pleader for Municipal Administration and Urban Development for respondent No.1, the learned Standing Counsel for GHMC for respondent Nos.2 to 4, and Sri L. Ravi Chander, learned Senior Counsel appearing on behalf of Sri Deepak Misra, learned counsel for respondent No.5. With their consent, the Writ Petition is disposed of at the stage of admission itself.
The case of the petitioner, in brief, is that the petitioner and her brother, who is presently residing in USA, have purchased a flat bearing No.201 in the subject apartment under a registered sale deed. It is stated that the builder and the owner of the land entered into a registered Development Agreement-cum-Irrevocable General Power of Attorney, dated 16.03.2017, for development of the subject property and that based on the said Development Agreement, the builder has obtained building permit dated 28.06.2017 for construction of stilt plus four upper floors. The grievance of the petitioner is that respondent No.5, after the sale of the flats, has again made an application seeking fresh permission for construction of fifth floor on the existing structure, 2 and the same was granted to him vide the impugned building permit dated 25.06.2020.
Learned counsel for the petitioner has vehemently argued that the building permission issued to respondent No.5 is without any basis and contrary to the provisions of the Telangana Apartments (Promotion of Construction and Ownership) Act, 1987 (for short, 'the Act') and that as per Section 9 of the Act, the respondent No.5 is not entitled to seek any fresh permission or make any constructions once the flats are sold. The learned counsel has stated that even the Transferable Development Right (TDR) Certificate, based on which respondent No.5 has obtained permission, is without any basis and contrary to the Scheme of issuance of the TDR Certificate. Learned counsel states that once respondent No.5 has sold the flats in the subject apartment, he does not have any exclusive right to deal with the said property again and cannot make any further constructions without obtaining the signature of the flat owners. The learned counsel has relied on the judgment of this Court in CSR Estates, Flat Owners Welfare Association v. Hyderabad Urban Development Authority1 to buttress his contention that once the flats are sold to third parties, the developer/owner of an apartment building cannot make any further constructions or raise additional floors without obtaining permission or No Objection Certificate from the flat owners.
Per contra, Sri L. Ravi Chander, learned Senior Counsel appearing on behalf of Sri Deepak Misra, learned counsel for respondent No.5, has stated that the petitioner was well aware about the construction of fifth floor that is sought to be made by respondent No.5 and the same is evident from the sale deed dated 19.02.2020 1 AIR 1999 AP 61 3 executed in her favour. The learned Senior Counsel has taken this Court through the recitals in the sale deed, which reads as under:
"Later on the Developer have applied for Sanction Plan for construction of a Residential Building comprising Stilt Floor + 5 Upper Floors from the Greater Hyderabad Municipal Corporation vide Inward No.2/C20/05854/2017, Dated 28.06.2017 and constructed the said Building and named it as "KASHISH AVENUE", the Entire Floor bearing Flat No.201 on Second Floor has fallen to the share of the Developer herein."
The learned Senior Counsel has taken this Court through the 'No Objection cum Declaration' given by the petitioner herself, wherein she has given consent for construction of the fifth floor, and has stated that for the reasons best known to her, the petitioner has changed her mind and has started creating hurdles. The learned Senior Counsel states that the petitioner was well aware about the intention of respondent No.5 with regard to construction of the fifth floor and pursuant to the same, the respondent Nol.5 has applied for building permission and then only the permission has been granted. The learned Senior Counsel has distinguished the judgment relied on by the petitioner on the ground that the same was rendered prior to the issuance of G.O.Ms.No.168, Municipal Administration and Urban Development (M) Department, dated 07.04.2012, whereby the Government has come up with the Scheme of giving Transferable Development Rights (TDR) to the persons, who have surrendered the land without any compensation. Learned Senior Counsel states that the petitioner, fully knowing well about the contents of the sale deed, cannot now turn back and state that she is not aware of the contents and she was made to sign the document at the last moment is only an afterthought. Learned Senior Counsel has stated that irrespective of the fact as to whether the executant of the document has read the document or not, once the 4 executant has signed the document, the same terms and conditions in the said document are binding on him, more so, when it is a registered sale deed. That in the present case, the registered sale deed has been executed in the month of February, 2020. The learned Senior Counsel has, therefore, prayed to dismiss the writ petition.
Heard the learned counsel for the petitioner as well as the learned counsel for the respondents and perused the record.
A perusal of the record discloses that one Smt. B.Narasamma has surrendered her land for the purpose of road widening and the GHMC authorities have issued Development Right Certificate to her on 05.03.2020 permitting her to utilise the Transferable Development Right (TDR) Value of 1692 Square Yards of area either on the said site or elsewhere and the said Narasamma, in turn, has transferred the TDR to the owners of the subject premises namely Smt.P. Sai Kumari and Smt.P. Kavitha facilitating them to obtain sanction for construction of fifth floor. The official respondents, upon verification of the said TDR Certificate and in pursuance of Rule 17 of the Rules issued in G.O.Ms.No.168, date 07.04.2012, have granted permission to respondent No.5 for constructing fifth floor in the subject premises.
Rule 17 of the Rules issued in G.O.Ms.No.168, date 07.04.2012 reads as under:
"17. Grant of Transferable Development Right:
(a) Transferable Development Right (TDR) can be awarded only when such lands are transferred to the local body/ Urban Development Authority as the case may be by way of registered gift deed. The award would be in the form of a TDR certificate issued by the Competent Authority / Sanction Authority.
(b) Grant of TDR can be considered by the Competent Authority / Sanctioning Authority for the following areas subject to the owners complying with the conditions of development above, as per the following norms:5
(i) For the Master Plan Road / Road Development Plan undertaken and developed: equivalent to 200% of the built up area of such areas surrendered.
For conservation and development of lakes/water bodies/nalas foreshores & Recreational buffer development with greenery, etc: equivalent to 100% of the built up are of such recreational buffer area developed at his cost.
(ii) For Heritage buildings and heritage precincts maintained with adaptive reuse: equivalent to 100% of built up area of such site area.
(c) The TDR may be arrived at on the basis of relative land value and equivalent amount in both export and Import areas, as per the Registration Department records. The Competent Authority shall have the discretion in the matter of applicability of TDR. The TDR shall not be allowed in unauthorised buildings/structures/constructions and shall be considered only after the land is vested with the local authority / UDA. The TDR certificate issued would be valid or utilised / disposed only with the concerned local body area and as per the guidelines and conditions prescribed.
(d) GUIDELINES ON TRANSFERABLE DEVELOPMENT RIGHT:
In order to adopt uniform guidelines throughout the State the following conditions and guidelines are prescribed:
(i) As and when the owner of the building intends to construct the building in the remaining area of the site, he is entitled to construct the building as per the provisions of these Building Rules. In the event the owner doesn't take up any construction, the owner is entitled for TDR which can be used/disposed depending on the convenience.
(ii) A composite Register shall be maintained by the Sanctioning Authority as per the proforma enclosed at Annexure - VIII on the award of TDR and its sale/disposal and utilisation. A responsible officer shall be the custodian of the Register.
(iii) At the time of sale/disposal/utilisation of a particular TDR, the utilisation details of the sale/disposal need to be entered at relevant columns in the register and that therefore the relevant file need to be referred to the custodian of the Register for making necessary entries 6 in the register. The custodian is held responsible to enter relevant details in the register and also to enter utilisation details in the TDR. When TDR Certificate is sold/utilised totally, the same shall be surrendered by the owners and the custodian shall take possession of the Certificate and make necessary entries in the register. As per Government Orders, TDR award is to be arrived on the basis of relevant land value at both export and import areas as per prevailing registration value.
(iv) TDR can either be sold or can be utilised by the same owner depending on convenience.
(v) TDR can be allowed to be utilised for construction of one additional floor over the normal permissible floors without insisting additional setbacks subject to compliance of other norms.
(vi) Every TDR sold or disposed shall be accompanied by a prescribed agreement on Rs.100/- non-judiciary stamp paper between the person disposing the TDR and the person who intend to utilise the TDR. Draft agreement as per Annexure-XI."
The proposition of law put forth by the petitioner is no doubt true, but, depending upon the facts of the case, the same has to be applied. The settled proposition of law is that once the developer or the contractor or the owner of an apartment building sells the flats to third persons, he cannot alter or change or add any further floors or portions without the permission or No Objection Certificate from the other owners of the flats in that building. However, in the instant case, the petitioner was well aware at the time of execution of the sale deed itself that the developer/owner was intending to construct fifth floor and that the petitioner has also given "No Objection cum Declaration" to that effect. The petitioner, for the reasons best known to her, has come up with the present writ petition seeking to cancel the permission granted to respondent No.5 for construction of fifth floor. 7
Even though the learned counsel for the petitioner has argued that his client had to sign the said document at the last moment and therefore she did not have time to read the document before registration of the document, the above contention cannot be countenanced, and has to be brushed aside as it is a settled proposition of law that once the executant of a document has appended his/her signature on the document, he/she cannot wriggle out of the contents therein on the pretext that he/she has not read the documents before signing on the same. The petitioner is bound by the contents of the document. The only remedy available to the petitioner is to approach the Civil Court seeking a declaration that the said clause is not binding on her.
Another important point is that the schedule of the property of flat sold to the petitioner, appended to the registered sale deed, shows that the undivided share of land in the premises which has fallen to the share of the petitioner is 73.4 Sq. Yards which translates to 1/5th only, which clearly implies that the building will have five floors. Moreover, it is to be noted that except the petitioner, none of the other flat owners approached this High Court, which clearly shows that they have also given their consent for construction of fifth floor. Once all the flat owners including the petitioner have given their consent for construction of fifth floor, the respondent Corporation has granted the permission vide the impugned permission dated 25.06.2020, it cannot be said that the permission so granted is without any basis and contrary to Section 9 of the Act and the Scheme of TDR issued in G.O.Ms.No.168 dated 07.04.2012.
This Court does not find any merit in the present writ petition for the afore-mentioned facts and circumstances and the same is dismissed accordingly.
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The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
_________________________ A.ABHISHEK REDDY, J Date: 23.12.2020.
Note : Issue C.C. in two days.
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