Telangana High Court
Nimmala Samanita vs The State Of Telangana And 2 Others on 14 June, 2022
Author: Satish Chandra Sharma
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
WRIT APPEAL No.366 of 2022
JUDGMENT:(Per the Hon'ble the Chief Justice Satish Chandra Sharma) The present writ appeal is arising out of an order dated 24.03.2022 passed in W.P.No.99 of 2022 by the learned Single Judge.
The facts of the case reveal that the writ petitioner/appellant came up before this Court stating that her great grandfather was the original pattadar and possessor of the lands in survey Nos.54 and 56 admeasuring Acs.21.27 guntas of Hafeezpet Village, Serilingampalli Mandal, Ranga Reddy District. The great grandfather was having only son, namely Nimmala Rama Krishnaiah, who died leaving behind four sons, namely Nimmala Veeraiah, Nimmala Raja Mallaiah, Nimmala Prabhakar and Nimmala Venu Gopal. The petitioner contended that the property in question was partitioned among the four sons and certain lands admeasuring Acs.5.19 guntas were allotted to the grandfather of the petitioner, namely Nimmala Veeraiah, who died leaving behind one son, namely Nimmala Srinivas Goud and two daughters. Pattadar pass books and title deeds were issued in favour of the grandfather 2 of the petitioner and the petitioner, after the death of her father and mother, came to know that a sale deed has been executed on 03.01.2008 in respect of the land which came to the share of the petitioner.
The petitioner has further stated that a cancellation deed also took place on 30.06.2008 and one G.K.Reddy filed W.P.No.19018 of 2008 challenging the cancellation done unilaterally before this Court and the said writ petition is pending. The petitioner has also stated that she has also filed a writ petition, i.e., W.P.No.31304 of 2021. However, she came to know that her family members have jointly sold the property to some other vendors and the layout has been approved and building permission has been granted by the Greater Hyderabad Municipal Corporation (GHMC) in the matter. The petitioner's contention is that she has submitted a representation on 09.12.2021 in respect of the building permission granted on 31.03.2021 and the said representation has not been considered nor has it been decided. The relief prayed by the petitioner as reflected in paragraphs 10 and 11 read as under:-
"10. It is therefore, prayed that this Hon'ble Court may be pleased to issue a Writ, Order or Direction more particularly 3 one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in not considering the representation dated 09.12.2021 made by the petitioner for cancelling the building permission accorded in favour of 3rd respondent vide File No.1/C21/15513/2019, dated 31.03.2021 in accordance with Section 450 of GHMC Act, 1955 is highly illegal, arbitrary and in violation of Articles 14 and 300-A of the Constitution of India and consequently direct the 2nd respondent to dispose of the representation dated 09.12.2021 made by the petitioner for cancelling the building permission accorded in favour of 3rd respondent vide File No.1/C21/15513/2019, dated 31.03.2021 in accordance with Section 450 of GHMC Act, 1955 and pass such other order or orders, that are deemed fit and proper in the circumstances of the case.
11. It is further prayed that this Hon'ble Court may be pleased to direct the 2nd respondent to stop the construction undertaken by the 3rd respondent in Plot Nos.763, 763/1, 763/2/Part, 763/2, 763/3, 763/4, 763/5 and 763/6 situated at Sy.No.54, Hafeezpet Village, Serilingampalli Mandal, Ranga Reddy District pending disposal of the writ petition, and pass such other order or orders as are deemed fit and proper in the circumstances of the case."
The learned Single Judge has dismissed the writ petition and paragraphs 4 to 11 of the Order passed by the learned Single Judge read as under:-
"4. Learned counsel for the petitioner submits that taking into consideration the relevant facts, a duty caste upon the Commissioner to consider the representation of petitioner, but he failed to do so and hence, there may be a direction to the respondents to consider her representation. Learned counsel 4 has relied upon the judgments of this Court in Sweety Builders Private Limited v. Municipal Corporation of Hyderabad and others1; N. Amit Reddy and another v. Greater Hyderabad Municipal Corporation and others2; Church of South India Trust Association and others v. Greater Hyderabad Municipal Corporation, Hyderabad and others3; and also relied on the judgment of the Apex Court in Suresh Jindal v. BSES Rajdhani Power Limited and others4. Relying on the said judgments, learned counsel for the petitioner submits that while deciding the said application under Section 450 of GHMC Act, the Commissioner is obligated to consider the representation filed for cancellation of a permit granted in favour of the unofficial respondent and he can independently go to the question of title and hence, non- consideration of the representation is bad in law.
5. Learned Standing Counsel for respondent No.2 has filed counter-affidavit on behalf of the Deputy Commissioner, GHMC, Hyderabad, and stated that upon receipt of the representation from the petitioner, the respondent Corporation has verified and found that the construction made is in accordance with the sanction plan and there is no illegality as alleged by petitioner. It is stated that a bare perusal of the entire writ affidavit clearly reveals that there is a dispute between the petitioner and the unofficial respondent No.3, and the petitioner, with a mala fide intention filed this writ petition to settle their scores by making false and baseless allegations against the respondent Corporation. He submits that the petitioner has to approach the civil Court for redressal of the disputes between the parties. Learned Standing Counsel further submits that the relief sought for by petitioner by way 1 1999(4) ALD 3 2 2020(6) ALD 321 (TS) 3 2010(1) ALD 561 4 (2008) 1 SCC 341 5 of a representation is beyond the jurisdiction of the respondents and they cannot go into the question of title and hence, the petitioner is not entitled for any relief.
6. Respondent No.3 filed counter affidavit stating that he has submitted an application before respondent No.2 for grant of building permission and vide order dated 31.03.2021, respondent No.2 has granted building permission for construction of one cellar + 5 upper floors and as per the sanction plan, he is proceeding with the construction of the building. It is stated that the petitioner has made a representation under Section 450 of GHMC Act to respondent No.2 to cancel the building permit, but either in the said representation or in the affidavit, she did not produce any document to show her title over the adjacent land of respondent No.3 nor stated what is the material misrepresentation or what is the fraudulent statement alleged to have been made by respondent No.3 while obtaining the building permit. The representation of petitioner does not constitute the ingredients under Section 450 of GHMC Act and hence, there is no obligation on behalf of respondent No.2 to consider the said representation and for the said relief, this writ petition is not maintainable.
7. Having heard the learned counsel on either side, perused the material on record. The specific case of the petitioner is that she is the absolute owner of the subject property and one B. Suresh Babu, who is the vendor of petitioner and others have created a fabricated documents and sold the property in favour of respondent No.3 through registered sale deed dated 28.02.2019 vide document No.3521 of 2019 and basing on the said document, respondent No.3 has made an application for building permission and the same was granted. Now, a representation is filed by petitioner 6 stating that her vendor had fabricated the documents and in turn, he sold the properties to respondent No.3, who has no right over the property and suppressing the said facts, he has obtained permission and going ahead with the construction, as such the said permission has to be cancelled. In this regard, the petitioner has made a representation to the respondent No.2, but they have failed to consider the same and hence, she is constrained to approach this Court.
8. Learned counsel for the petitioner has relied on the judgment of this Court in Church of South India Trust Association's case (3 supra), wherein it was held as under;
"It is true that under Section 450 of the Hyderabad Municipal Corporation Act, the 1st respondent is under obligation to verify the title of an applicant, over the land upon which, construction is proposed to be made. However, the nature of verification cannot be similar to the one, in a suit for declaration of title. Much would depend upon the nature of property, as well as the nature of rights claimed by the applicant. If it is a private property, and title is claimed by an individual, the Corporation can insist on production of the title deeds. Here again, if the ancestral property has devolved upon an individual, by way of succession, or in a family partition, or a settlement, the nature of verification would be some-what different".
He submits that respondent No.2 is under an obligation to consider the representation of the petitioner. He also relied on the judgment of this Court in N. Amit Reddy's case (2 supra), wherein it was held as under;
"In terms of Section 450 of the Act, once building permission was granted in favour of an individual, before cancellation of the same, the ground under which an order could be passed under Section 450 of the Act is such permission was obtained on account any material misrepresentation or fraudulent statement of information furnished under Section 428 or 433 of the Act. It is implicit under Section 450 of the Act that conclusion be arrived at by the Commissioner with respect to the permission obtained by an individual by way of either misrepresentation or fraudulent statement. Without arriving at such definite conclusion, which can only be 7 done after the enquiry is conducted, no final orders may be passed"
Learned counsel has also relied upon the decision of this Court in Sweety Builders Pvt Ltd.'s case (1 supra), wherein it was held as under;
"Therefore, nothing prevented the Municipal Corporation of Hyderabad, 1st respondent to dispose of the representation of the petitioner. Justice requires that when a citizen approaches appropriate authority for redressal and makes representation, minimum that can be done by the officers and authorities, is to consider the application accordingly and pass appropriate orders. The constitution confers such a right on all the citizens. The rule of law also requires that the citizens should know where they stand with regard to acquiring and enjoying their rights both personal and proprietary rights".
9. By relying on the said judgments, learned counsel for the petitioner submits that whenever any representation is made, the authorities are obligated to dispose of the said representation. Relying on the judgment of the Apex Court in Suresh Jindal's case (4 supra), learned counsel for the petitioner submits that under the General Clauses Act, a statutory authority while exercising statutory power may do all things which are necessary to giving effect thereto. In the said judgment, the Apex Court held as under;
"Section 20 operates in one field, namely, conferring a power of entry on the licensee. The said provision empowers the licensee inter alia to alter a meter which would include replacement of a meter. It is an independent general provision. In absence of any statutory provision, we do not see any reason to put a restrictive meaning thereto. Even under the General Clauses Act, a statutory authority while exercising statutory power may do all things which are necessary for giving effect thereto. There does not exist any provision in any of the statutes referred to hereinbefore which precludes or prohibits the licensee to replace one set of meter by another. If such a provision is read into the statute, the same would come in the way of giving effect to the benefits of new technological development. Creative interpretation of the provisions of the statute demands that with the advance in science and technology, the Court should read the provisions of a statute in such a manner so as to give effect thereto".8
Learned counsel for the petitioner also submits that while deciding the application under Section 450 of GHMC Act, the Commissioner can incidentally go into the question of title.
10. This Court, prima facie, is not convinced with any of the arguments advanced by the learned counsel for the petitioner, particularly, with regard to the submission that the Commissioner can go into the question of title incidentally and decide the dispute between the parties. In fact, the respondents can only look into the prima facie title and by looking at the prima facie title, they have granted permission in favour of the respondent. All these questions as to whether the vendor of petitioner has title to the property or respondent No.3 and basing on such title, whether the respondents can issue building permission to respondent No.3, have to be looked into by the Municipal Commissioner while sanctioning the plan, is nothing but converting the municipal office into the civil Court and this will undoubtedly gives rise to several complications and litigations between the parties. However, the contention of learned counsel for the petitioner is that when he filed an application under Section 450 of GHMC Act, the authorities are bound to consider the same and in the judgments relied on by petitioner, the Courts have discussed about the scope of enquiry under Section 450 of the GHMC Act. When a writ petition is filed before this Court seeking a direction to the respondents to dispose of the representation, this Court cannot act like a Post Office and direct the authorities to consider all the representations that are made and consequently, it gives rise to another set of litigation. In this case, when the petitioner filed a writ petition, this Court has to examine whether the representation, which is filed before the respondents, can be disposed of by them and whether they have such authority/jurisdiction to do it. The entire dispute between the parties is purely civil in nature and the title of the property is in dispute and undoubtedly, the 9 Commissioner has no jurisdiction to go into those issues and even the Honourable Apex Court has time and again has deprecated the practice of High Courts in passing the orders for disposal of the representations. It was also observed that disposal of the representation mantra is increasingly permenting the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do not service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred attendant costs and suffered delays of the legal process. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
C. Jacob vs. Director of Geology and Mining and another5 5 (2008) 10 SCC 115 10
11. In the facts and circumstances, this Court is not inclined to direct the respondents to dispose of the representation of petitioner, which is in a way directing the respondents to decide the title. Hence, the Writ Petition is dismissed. No order as to costs."
The solitary relief prayed by the writ petitioner in the writ petition is to direct the authorities to decide the petitioner's representation. Section 450 of the Greater Hyderabad Municipal Corporation Act, 1955 reads as under:-
"450. Power of commissioner to cancel permission on the ground of misrepresentation by application:-
If at any time after permission to proceed with any building or work has been given, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 428 or 433 or if the further information if any, furnished, he may cancel such permission and any work done thereunder shall be deemed to have been done without his permission".
The petitioner's contention is that the learned Single Judge should have allowed the writ petition as the respondent No.3 has not disclosed the details of the litigation pending in respect of the property and therefore, in all fairness, orders 11 should have been passed by the learned Single Judge to direct the authorities to decide the representation in accordance with law.
This Court has carefully gone through the judgments relied on by the learned counsel for the writ petitioner/ appellant in the cases of Sweety Builders Private Limited (supra), N. Amit Reddy (supra), Church of South India Trust Association (supra) and Suresh Jindal (supra). However, in the present case, altogether different controversy is involved. It is a case where the petitioner claims title over the property and neither this Court nor the Commissioner of GHMC does have the power to decide the title dispute. There is a writ petition pending in respect of the cancellation deed, dated 30.06.2008, i.e., W.P.No.19018 of 2008 and there is another writ petition filed by the writ petitioner/appellant i.e., W.P.No.31304 of 2021 also pending before this Court. The title of the property cannot be decided by this Court and the only remedy available to the writ petitioner/appellant is to approach the competent civil Court, where after appreciation of evidence, Judgment and decree can be passed in respect of the title and other rights. 12
This Court is of the considered opinion that the learned Single Judge was justified in dismissing the writ petition as the petitioner is claiming title by submitting a representation and the proper course of action for the petitioner is to avail the remedies available under civil law and therefore, this Court does not find any reason to interfere with the order passed by the learned Single Judge.
The writ appeal is accordingly dismissed. Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
________________________ SATISH CHANDRA SHARMA, CJ _______________________ ABHINAND KUMAR SHAVILI, J 14.06.2022 pln