Telangana High Court
Smt. Chandrakala Despande And Another vs The Union Of India And 3 Others on 2 March, 2022
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
W.P. Nos.18251 OF 2020 and 8282 OF 2021
COMMON ORDER:
Since the subject properties in writ petitions are situated in same survey numbers, they are taken up together and being disposed of by this common order.
2) W.P. No.18251 of 2020 is filed by Smt. Chandrakala Despande and Sri Rajan Despande seeking to declare the action of respondent No.3 in not considering the application of the petitioners for construction of compound wall in respect of the open land admeasuring 9856 sq. yards in survey No.194/1 part and survey No.211 part (GLR Sy. No.243/part & 255 part), abutting to Vani Co-op Housing Society, Old Gandhi Nagar, R.K. Puram, Secunderabad Cantonment (hereinafter referred to as 'subject property No.1'), as illegal and arbitrary and consequently to set aside the letter bearing Lr.No.SCB/EB/C.Wall/Sy.No.194 &211/R.K.Puram/368/ 1706, dated 04.08.2020, issued by respondent No.3.
3) W.P. No.8282 of 2021 is filed by Ch. Anjaiah and three others seeking to declare the action of the respondent authorities in interfering with the peaceful possession and enjoyment of the petitioners in respect of the land admeasuring 3197 Sq. Yards in 2 AAR, J WP Nos.18251_2020&8282_2021 survey No.211, to an extent of 3660 sq. yards in survey Nos.194/1 and 211, and an extent of 2999 sq. yards in survey No.211 of Ammuguda Village, Tirumalgiri Mandal, Secunderabad (hereinafter referred to as 'subject property No.2'), as illegal and arbitrary.
4) The case of the petitioners in W.P. No.18251 of 2020, in brief, is that they are the owners and possessors of the subject property No.1 having inherited the same from their ancestors. Petitioners have executed registered agreement of sale-cum-GPA (with possession) vide documents bearing Nos.1362, 1363 and 1364 of 2008 in favour of M/s.Laxmi Ganapathi Enclave (hereinafter referred to as 'GPA holder'). The said execution was subsequently ratified by the daughters of petitioner No.1 and sisters of petitioner No.2 vide registered ratification deed Nos.2955 and 2956 of 2014 dated 17.12.2014. It is the further case of the petitioners that the petitioners through their GPA submitted an application dated 05.10.2019 to respondent No.3 seeking permission to construct compound wall. Respondent No.3, in turn, has addressed a letter to respondent No.4 seeking to issue 'NOC'. However, respondent No.4 vide letter No.C/214/2020 dated 22.06.2020 replied that the land bearing GLR Sy.No.243/part and 255/part admeasuring Acs.119-24 guntas is classified as 'B2 land' and that the State Government is having 3 AAR, J WP Nos.18251_2020&8282_2021 pattadar and proprietary rights over the same, as per G.O. Ms.No.1048 dated 27.12.1996. Relying on the said reply, respondent No.3 issued the impugned letter dated 04.08.2020 refusing to consider the application of the petitioners for construction of compound wall.
5) The case of the petitioners in W.P. No.8282 of 2021, in a nutshell, is that these petitioners have purchased the subject property No.2, through an Agreement of sale-cum-General Power of Attorney with possession vide document Nos.1362, 1363 and 1364 of 2008 dated 18.09.2008 from the grand sons of the original pattedar by name Yogiraj Tirambaka Despande and since the date of purchase, they are in peaceful possession and enjoyment of the said property. The said sale was also ratified by the sisters of the vendors of the petitioners vide document Nos.2955, 2956 and 2957 of 2014 dated 18.12.2014. Pursuant to the application made by petitioner No.1 for issuing NOC, the Defence Estate Officer, Secunderabad, addressed a letter vide Lr.No.1/21/LII/2016, dated 12.06.2016, to the Assistant Director, Survey and Land Records, Ranga Reddy District, requesting to conduct a joint survey of the land and ascertain factual report in respect of the land involved in Revenue Survey No.194/1 and 211 situated at Gandhi Nagar, R.K. Puram, near Ammuguda Railway Station, Secunderabad Contonment. Accordingly, the joint survey was conducted on 4 AAR, J WP Nos.18251_2020&8282_2021 15.06.2009 wherein the lands in Revenue Survey No.194/1 and 211 were classified as Class B (2) Land and they are falling outside the boundary of defence lands, which prove that the lands of these petitioners are not falling in the defence area. On 05.10.2019, the petitioners made an application before the Contonment Board, Secunderabad, for according permission for construction of compound wall and the said application was rejected by the Contonment Board vide Lr.No.SCB/EB/C/WALL/ Sy.No.194 & 211/RKPuramlk-368/1706, dated 04.08.2020. Aggrieved by the same, W.P. No.18251 of 2020 was filed and the same is pending consideration before this Court. While so, on 20.03.2021 the respondent authorities, without any notice, partly removed/ destroyed the gate erected in the land and attempted to dispossess the petitioners. Questioning the same, the petitioners have filed W.P. No.8282 of 2021.
6) In W.P. No.18251 of 2020, Respondent Nos.1 and 2 filed a counter affidavit mainly stating that as against the impugned order, the petitioners have an alternate remedy of filing an appeal under Section 340 (1) of the Contonments Act, 2006. It is stated that as per Rule 6 (ii) of the Contonments Land Administration Rules, 1937, 'Class B(2) land means the land, which is actually occupied or used by, or is under the control of, any Department of 5 AAR, J WP Nos.18251_2020&8282_2021 a Provincial Government', but not a private land as claimed by the petitioners. Hence, it is prayed to dismiss the writ petition.
7) Respondent No.3 also filed a counter affidavit mainly contending that the application made by the petitioners was rejected based on the objection raised by respondent No.4 that the land bearing GLR Sy.No.243 of Tirumulgherry Mandal admeasuring Acs.119-24 guntas is vested with the Government and the respondent No.3 being only a Municipal Body has no mechanism to verify the title of the petitioners over the subject property No.1. Hence, there are no merits in the writ petition and the same is liable to be dismissed.
8) Respondent No.4 filed a counter affidavit mainly contending that as per G.O. Ms.No.1048, dated 17.12.1996 published in Gazette No.37, dated 27.12.1996, no area belonging to Malkajgiri Village is made part of Tirumalagiri Mandal, Hyderabad District. Hence, the land in GLR Sy.No.243 forms part of Contonment area of Tirumalgiri Mandal and the same has nothing to do with the land in survey Nos.194/1 and 211 of Malkajgiri Village and Mandal. It is further contended that the subject land falls in GLR Sy.No.243, which is a Government land and vacant on ground within the custody of Government and neither the petitioners nor their predecessors were ever in possession of the land. Mere 6 AAR, J WP Nos.18251_2020&8282_2021 execution of documents does not create any right or title to the petitioners over the subject land and the petitioners are not entitled to seek permission for construction of compound wall. As per the GLR maintained by the Defence Estate Officer, the subject land in GLR Sy.No.243 to an extent of Acs.119.34 gts is recorded in the name of State Government. It is further stated that the Wakf Tribunal vide judgment dated 05.08.2010 passed in O.S. No.121 of 1998 while dismissing the claim of the Wakf Board has observed that GLR No.243 is a Government land. Further, the petitioners are claiming the land in survey Nos.194/1 and survey No.211 part, which is abutting to Vani Co-Operative Housing Society, whereas the subject land falls in GLR Sy.No.243 of Tirumalagiri Mandal, which is a Government Land. As such, there are serious disputed questions of facts and identity of the property. Hence, it is prayed to dismiss the Writ Petition.
9) Three separate reply affidavits have been filed by the petitioners mainly stating that this Court as well as the Hon'ble Supreme Court in catena of judgments have held that GLR record is not conclusive proof of title and therefore the sole reliance placed by the Government on the GLR cannot be the basis for rejection of the request of the petitioners. Further, respondent No.3 has failed to explain as to under which provision of law, clarification was sought from respondent No.4 while considering 7 AAR, J WP Nos.18251_2020&8282_2021 the application of the petitioners. Respondent No.3, which is claiming to be only a Municipal Body and has no mechanism to verify the title of the petitioners over the subject property, ought not have refused to consider the application of the petitioners on the premise that the subject land is claimed by the Government and that respondent No.3 ought not have traveled beyond the jurisdiction conferred upon it. It is further stated that B2 lands are private patta lands, as clearly given on the website of the respondent Board. Therefore, a contrary stand cannot be taken by the respondents.
10) In W.P. No.8282 of 2021, respondent No.3-Tahsildar filed a counter affidavit, reiterating the averments of the counter filed in W.P. No.18251 of 2020 and also denying the interference of these respondents with the possession of the petitioners as alleged in the writ affidavit. It is specifically averred that the petitioners have no right or title over the subject land and the State Government is having title, right and possession over the land in GLR No.243 and therefore it is the primary duty of the respondents to protect the public property. Therefore, it is prayed to dismiss the writ petition.
11) Heard Sri E. Madan Mohan Rao, learned Senior Counsel, appearing on behalf of Sri A. Venkatesh, and Sri D. Krishna 8 AAR, J WP Nos.18251_2020&8282_2021 Reddy, learned counsel on record, for the petitioners, and the learned Advocate General, Sri Namavarapu Rajeshwar Rao, learned Assistant Solicitor General, and Sri K. R. Koteswara Rao, learned Standing Counsel for Cantonment, appearing for the respondents.
12) Learned Counsel appearing for the petitioners has stated that the official respondents, contrary to the well established principles of law, are not considering the application of the petitioners in W.P. No.18251 of 2020 for construction of a compound wall over an open land admeasuring 9856 Sq.Yds., in Sy.No.194/1 part and Sy.No.211 part (GLR Sy.No.243/Part & 255 part). Learned counsel has further stated that the respondent No.3 who is the competent authority has not considered the well established principle of law that the building application made by the citizens has to be dealt with on its own merits by verifying as to whether the person making the application has prima facie title and whether the building plans are made in conformity with the Municipal Act, Rules and bylaws only but the authorities cannot insist for production of any No Objection Certificate (NOC) from Departments like Revenue, ULC, or any other authority, and cannot keep the application of the petitioners pending. That the same is contrary to the law laid down in Hyderabad Potteries 9 AAR, J WP Nos.18251_2020&8282_2021 Private Limited vs. Collector, Hyderabad District1 and other Judgments of this Court where this Court has repeatedly was held that the authority granting building permission has to decide the application on its own merits and cannot insist for production of any NOC from any other Departments. The petitioners have placed reliance on the following decisions in support of their case.
(i) In K.Babu v. Cantonment Executive Officer and Ors2, wherein this Court, at para 13, has held as under:
"No doubt, the learned counsel representing the first respondent placed strong reliance on Section 194(2)(a) of Act, in particular, which specifies that the Executive Officer may by notice in writing require the owner or lessee of anyld in Cantonment to remove any boundary wall, hedge or fence which in its opinion found unsuitable or otherwise objectionable. It is needless to say that this provision may be invoked at the appropriate stage, but the objections raised at present are that the petitioner is required to produce NOC from the District Collector, Hyderabad and Airport Authority of India. Since the Act does not specify or contemplate production of such certificates, the impugned action of the first respondent cannot be sustained. In the light of the same, rejection of permission for construction of compound wall as requested by the petitioner cannot be sustained."
(ii) In an unreported judgment of this Court in Tahir N.Khambati and others v. Secunderabad Cantonment Board 1 2001 SCC OnLine AP 397: (2001) 3 ALD 600 2 MANU/AP/0985/2007 10 AAR, J WP Nos.18251_2020&8282_2021 (W.P.No.11091 of 2016, dated 19.06.2006), wherein this Court held as under:
"... the writ petition is allowed with costs. The respondent is directed to consider the application of the petitioners for sanction of a layout without insisting that the petitioners obtain a no objection certificate from the Mandal Revenue Officer, Secunderabad..."
(iii) In Annapurna Builders v. Municipal Corporation of Hyderabad3, following its earlier decision in the case of Subash Kumar Lohade v. MCH4, the High Court of Judicature of Andhra Pradesh, held that for obtaining sanction of lay out, production of exemption certificate issued by the competent authority under the provisions of the Urban Land Ceiling Act is not required. The wordings in Section 181 of the Cantonment Act though slightly different from the provisions of the Municipal Corporation Act, but the power conferred on the authority in connection with sanction of lay out are almost similar.
13) Per contra, the learned Standing Counsel appearing on behalf of the respondents has drawn the attention of this Court to the letter of the District Collector, Hyderabad, dated 22.06.2020, whereby a specific stand was taken that the land bearing GLR Sy.No.243 of Tirumulghery admeasuring Acs.119-24 gts. is classified as "B2" State Government land and in view of 3 1987 (1) ALT 644 4 1985 (1) APLJ 20 11 AAR, J WP Nos.18251_2020&8282_2021 G.O. Ms.No.1048 dated 27.12.1996 the land vested with the Government. In such a situation, the authorities concerned had to necessarily reject the application of the petitioners and have insisted the petitioners for production of NOC and therefore are no merits in the writ petition and the same is liable to be dismissed. Learned Standing Counsel has further stated that the petitioners instead of filing an appeal against the impugned order, as provided under Section 340 (1) of the Contonments Act, 2006, have the present Writ Petition. Therefore, the Writ Petition is liable to be dismissed both on merits and technical grounds.
14) Perused the record.
15) In Hyderabad Potteries Private Limited (cited supra), 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, 12 AAR, J WP Nos.18251_2020&8282_2021 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. The above-said judgment of this Court has also been confirmed by the Hon'ble Supreme Court.
16) Further, in K. Pavan Raj v. M.C.H. Rep. by its Commissioner5, this Court, at para 20, has 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 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 5 2008(1) A.P.L.J.2 (HC)
13 AAR, J WP Nos.18251_2020&8282_2021 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."
17) In SSPDL Ltd. Hyderabad Metropolitan Development Authority6 it has been held as 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 6 2017(6) ALD 570 : 2017 (6) ALT 523
14 AAR, J WP Nos.18251_2020&8282_2021 applying the certain conditions, the Commissioner may either grant permission or postpone the grant of permission.
In the considered view of this Court, a dispute on identity or title ought not to have been entertained and decided by 1st respondent. This Court is persuaded to apply the principles of law enumerated in cases referred above to the case on hand as 1st respondent discharges assigned functions and powers and from the reading of Act, deciding title or identity is not one of the functions or powers of 1st respondent. Therefore, the decision of 1st respondent dated 29.08.2015 is illegal and beyond jurisdiction and untenable."
18) In view of the above settled proposition of law, this Court is of the considered opinion that the rejection of the building application for construction of compound wall in respect of subject property No.1 and insisting for production of NOC cannot be countenanced. The authorities concerned cannot insist the applicants to get an NOC either from the Revenue Department, ULC Department or any other government Department and keep the building application pending or reject the same on that ground alone. The authorities concerned are expected to examine the building application on its own merits and after due verification with regard to title and as to whether the building plans are in conformity with the provisions of the Municipal Act, Rules and Bye-laws have to process the same and pass necessary orders.
15 AAR, J WP Nos.18251_2020&8282_2021 Therefore, the impugned letter dated 04.08.2020 is set aside and the matter is remanded back to the authorities concerned to consider the application made by the petitioners for construction of compound wall, afresh, duly taking into consideration the law laid down by this Court in the above referred judgments. However, it is made clear that in case the respondent No.3 considers the application of the petitioners for construction of the compound wall, the same will neither confer any right to the petitioners nor divest the authorities of their title/rights, if any. Accordingly, W.P. No.18251 of 2020 is disposed of.
19) Insofar as W.P.No.8282 of 2021 filed questioning the action of the official respondents in interfering with the possession of the petitioners in respect of subject property No.2 is concerned, even though both the learned counsels have argued at length with regard to the various aspects and the notifications issued by the Government, this Court is not inclined to go into the same as there are seriously disputed questions relating to title and rival claims with regard to the physical possession of the subject property No.2. Having regard to the well established principles of law that the High Courts exercising jurisdiction under Article 226 of the Constitution of India cannot adjudicate cases involving serious disputed questions relating to title and also where the physical possession of one party is disputed by the rival party. Moreover, 16 AAR, J WP Nos.18251_2020&8282_2021 as seen from the record, there is a serious dispute with regard to the location of the subject property, title and possession, since both the parties are claiming that the subject land belongs to them and that they are in physical possession of the subject land.
20) In Sana Radha v. State of Andhra Pradesh7, at para 9, it has been held as under:
"This Court cannot also state simply that since there are disputed questions of fact it will not enter into the areas of controversy. This Court has a duty to spell out what are the disputed questions of fact, which need to be established and adjudicated. Therefore, the issues that are spelt out are for the limited purpose of pointing out the matters which in the opinion of the Court need to be proved in a Civil Court through proper pleading and evidence. In the opinion of this Court, these are all the matters of pleading and evidence, which are best addressed and decided in a regular civil suit. In the opinion of this Court, a civil suit is the proper and efficacious remedy for this case and not a Writ. Disputed question cannot be decided in the Writ.
(EMPHASIS ADDED)
21) In Mansarover Steel Industries (P.) Ltd. v. State of U.P.,8, the Hon'ble Supreme Court has held that where the High court comes to the conclusion that there are disputed question of fact, the High Court should have then relegated the appellants to an appropriate court, instead of dismissing the writ petition.
7 2021 SCC OnLine AP 326 8 (2005) 13 SCC 440 17 AAR, J WP Nos.18251_2020&8282_2021
22) In State of Rajasthan vs. Bhavani Singh9, the Hon'ble Supreme Court while dealing with the case relating to non- entertaining the application before the municipal authorities for construction of a compound wall in a plot of land, held that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the plot. It was further held by the Supreme Court that it is evident from the facts stated that the title of the writ petitioner is very much in dispute and, therefore, the disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition.
23) In Union of India and another v. Mohammed Mohiuddin and others10, a Division Bench of the High Court of Judicature of Andhra Pradesh at Hyderabad, at para 62, held as under:
"... it is well settled that highly disputed questions of title cannot be entertained and adjudicated in a petition under Article 226 of the Constitution of India. From the various contentions raised and arguments urged on behalf of the respective parties, it is apparent that there is a serious dispute of the title among the various persons and authorities in respect of title to the property in question."
24) In Municipal Corporation, Aurangabad through its Commissioner vs. State of Maharashtra11, the Hon'ble Apex Court held that the High Court erred in exercising its jurisdiction 9 1993 Supp (1) SCC 306 10 (2000) 6 ALT 551 (DB) 11 (2015) 16 SCC 689 18 AAR, J WP Nos.18251_2020&8282_2021 under Article 226 of the Constitution of India in deciding the disputed questions of fact regarding title over disputed land raised by the parties therein.
25) In Hindustan Coca Cola Beverage Private Limited vs. Union of India12, the Hon'ble Apex Court held that adjudication on disputed questions of fact is outside the purview of Article 226 of the Constitution of India; the issue before the High Court was violation of principles of natural justice as no notice was served on the appellants before initiating recovery proceedings; Hence, High Court ought not to have decided the matter by going to depth of facts of case and hence, order passed by the High Court is untenable.
26) In Swati Ferro Alloys Private Limited vs. Orissa Industrial Infrastructure Development Corporation (IDCO)13, the Hon'ble Apex Court held that matter involving disputed question of fact about the ownership of the land in question could not be decided in a writ petition under Article 226 of the Constitution of India and that the High Court was justified in directing the parties to approach the civil Court for resolving such dispute.
12 (2014) 15 SCC 44 13 (2015) 4 SCC 204 19 AAR, J WP Nos.18251_2020&8282_2021
27) In view of the above proposition of law laid down by the Hon'ble Supreme Court and High Court and as there are serious disputed questions relating to title and the respondents are disputing the physical possession of the land with the petitioner, W.P.No.8282 of 2021 is disposed of leaving it open to the parties to agitate their rights before the competent civil Court.
28) In the result, W.P. No.18251 of 2020 is disposed of setting aside the impugned letter of rejection and remanding back to the authority concerned to decide afresh on its own merits and not insist for production of NOC, and W.P. No.8282 of 2021 is disposed of granting liberty to the parties approach the Civil Court for agitating their rights.
Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________________ A.ABHISHEK REDDY, J Date : 02.03.2022 smr/sur