Telangana High Court
Hema Latha Peddarapu vs The State Of Telangana on 25 September, 2024
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT PETITION No.26465 OF 2024
ORDER:
This writ petition is filed seeking the following relief:
"...to issue any writ, order or direction 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 of issuing the impugned Revocation Letter vide Lr.No.409892/GHMC/10581/2024 dated 21.09.2024, in respect of petitioners Plot bearing No.W-53 in Sy.Nos.329/4 & 329/5 situated at Mahadevapuram Residential Layout Project Phase III, Gajularamaram Village, Quthbullapur, 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 Revocation Letter vide Lr.No.409892/GHMC/10581/2024 dated 21.09.2024, in respect of petitioners Plot bearing No.W-53 in Sy.Nos.329/4 & 329/5, situated at Mahadevapuram Residential Layout Project Phase III, Gajularamaram Village, Quthbullapur, Medchal-Malkajgiri District, and thereby direct the respondents to accord the building permission based on petitioners application vide Permit No.409892/5586/GHMC/ 2024 dated 20.06.2024, in respect of petitioner's Plot bearing No.W-53 in Sy.Nos.329/4 & 329/5, situated at Mahadevapuram Residential Layout Project Phase III, Gajularamaram Village, Quthbullapur, Medchal-Malkajgiri District and to pass such other order or orders..."2
2. Heard Mr. E.Venkata Siddhartha, learned counsel for petitioners, and Mr. M.Dhananjaya Reddy, learned Standing Counsel for Greater Hyderabad Municipal Corporation (GHMC) for respondent Nos.2 to 4.
3. Brief facts:
Petitioners claims to be absolute owners and peaceful possessors of the Plot bearing No.W-53, in Sy.No.329/4 & 329/5, situated at Mahadevapuram Residential Layout Project Phase III, Gajularamaram Village, Quthbullapur, Medchal-Malkajgiri District, having acquired the same through registered sale deed, dated 25.04.2024. Petitioners made an application for grant of permission for construction of building (stilt+3 floors) on 20.06.2024 and the same was granted vide application permit No.409892/5586/GHMC/2024. Respondent No.3 issued show cause notice to petitioners on 26.06.2024, as to why the provisional permission granted should not be revoked, as the petitioners' plot falls in Sy.No.329/1 to 329/10 of Gajularamaram Village, which is being treated as Government land. Petitioners submitted their explanation 3 on 27.06.2024. Respondent No.3 issued revocation letter No.409892/GHMC/10581/2024, dated 21.09.2024, revoking the building permission granted to petitioners.
The revocation letter is under challenge in this writ petition.
4. Learned counsel for petitioners submitted that petitioners are absolute owners of plot bearing No.W-53, in Sy.Nos.329/4 & 329/5, having purchased the same through registered sale deed, dated 25.04.2024. It is further submitted that respondent No.3 took an objection that the said plot is a Government land. It is also submitted that petitioners proceeded with construction as per building permission granted earlier i.e., sanction plan, dated 22.07.2024 and that revocation letter, dated 21.09.2024, was issued revoking the building permission granted.
4.1. Learned counsel for petitioner relied upon the order, dated 26.03.2024, in W.P.No.7607 of 2024 and submitted that in similar facts and circumstances of the case, writ petition was disposed of.
44.2 It is submitted that order of the Division Bench of this Court in W.A.No.198 of 2023, dated 14.02.2023, is squarely applicable in the facts and circumstances of the case and hence, a similar order be passed in this writ petition.
5. Learned Standing Counsel for GHMC appearing for respondent Nos.2 to 4 fairly stated that order in W.A.No.198 of 2023 was in respect of Sy.Nos.329/4 and 329/5 for plot bearing No.M-5A, admeasuring 300 sq. yards, situated at Mahadevapuram Residential Project Phase III, Gajularamaram Village and the facts in the present case are similar.
5.1. On a query put by this Court, respondent No.3 i.e., Deputy Commissioner, Gajularamaram, Circle No.26, GHMC, who is present in the Court, stated through learned Standing Counsel that by inadvertence, respondent No.3 did not take note of the order passed by the Division Bench in W.A.No.198 of 2023, while issuing revocation letter. 5
6. Heard learned counsels, perused the record and considered the rival submissions.
7. Petitioners purchased the plot bearing No.W-53, in Sy.No.324/4 & 324/5 situated at Mahadevapuram Residential Layout Project Phase III, Gajularamaram Village, Quthbullapur, Medchal-Malkajgiri District, through registered sale deed, dated 25.04.2024. On an application made by petitioners for grant of permission for construction of building, respondent No.3 took an objection that the said plot is a government land and revoked the permission granted earlier vide letter No.409892/GHMC/10581/2024, dated 21.09.2024. Petitioner is challenging the revocation letter, dated 21.09.2024, wherein it is stated as follows:
• "As recommended by ACP & SO, it is rejected. • As per TPS remarks, the proposed site falls in Sy.No.329/1 to 329/10 of Gajularamaram village, which is being treated as Government land as per the Tahsildar, Quthbullapur Mandal vide Lr.No.B/35/2018, dated 05.01.2018. Hence the Prima Facie title is in dispute/litigation as such the Prima Facie title on the proposed site is not satisfied.6
Hence, the submitted proposals may be Not Recommended.
• The proposed site falls in Sy.No.329/1 to 329/10 of Gajularamaram Village, which is being treated as Government Land as per the Tahsildar, Quthbullapur Mandal vide Lr.No.B/35/2018 dated 05.01.2018. Hence the Prima Facie title is in dispute/litigation as such the Prima Facie title on the proposed site is not satisfied. Hence, the submitted proposals may be Not Recommended.
Hence the permission issued vide reference cited is hereby revoked under TG-bPASS Act 2020. Further you are hereby directed not to proceed with any type of construction work, failing which necessary action will be taken as per the provisions of TG-bPASS Act 2020 as the same is treated as unauthorized construction."
8. We have perused the order of the Division Bench in W.A.No.198 of 2023. The order of the learned Single Judge in W.P.No.41542 of 2022, dated 15.11.2022, was under
challenge in the writ appeal and the prayer in W.P.No.41542 of 2022 is as follows:
"...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 7 sq.yds, in Sy.No.329/4 and 329/5, situated at Mahadevapuram Residential Project - Phase III, Gajularamaram Village Qutuballapur Mandal, MedchalMalkajgiri 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".
9. W.A.No.198 of 2023 was preferred by GHMC and its officials. The Division Bench of this Court vide order, dated 14.02.2023, held as follows:
"11. The decision of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad District (reported in 2001 (3) ALD 600) has been affirmed by the Supreme Court in State of Andhra Pradesh v. Hyderabad Potteries (reported in (2010) 5 SCC 382). 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 8 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 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 Bhanji (reported in AIR 1952 SC 16) and Mohinder Singh 9 Gill v. Chief Election Commissioner (reported in (1978) 1 SCC 405).
14. In view of the above, writ appeal is dismissed."
10. It is observed from the prayer in W.P.No.41542 of 2022 that survey numbers are same as in this writ petition i.e., Sy.Nos.329/4 and 329/5, in which petitioners' plot bearing No.W-53, is situated. It is contended by learned counsel for petitioner and not disputed by learned Standing Counsel for respondents that survey numbers in the present case are same, as in W.P.No.41542 of 2022, and the order of learned Single Judge was confirmed by Division Bench of this Court in W.A.No.198 of 2023.
11. This Court is not inclined to take a different view to that of the order of the learned Single Judge in W.P.No.41542 of 2022, as confirmed by the Division Bench in W.A.No.198 of 2023. The revocation letter No.409892/GHMC/10581/2024, dated 21.09.2024, is liable to be set aside, as the facts are similar in nature. Accordingly, the revocation letter dated 21.09.2024 is set aside. It is made clear that respondent authorities are at 10 liberty to initiate appropriate steps in accordance with law, if it is deemed necessary in future.
12. Accordingly, the writ petition is allowed. No order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
__________________________________ JUSTICE ANIL KUMAR JUKANTI Date: 25.09.2024 KRR