Andhra HC (Pre-Telangana)
K. Pentamma Alias K. Prameela And Anr. vs The Addl. Commissioner, Municipal ... on 21 December, 1990
Equivalent citations: 1991(1)ALT160
ORDER Parvatha Rao, J.
1. In this writ petition, the petitioners question the insistence by the 2nd respondent for submission of the consent of the Estate Officer, Secunderabad, the 4th respondent herein, for consideration of their application for construction of shops and showrooms, etc., and seek a writ of mandamus directing the respondents to re-consider and grant sanction of the construction plan with necessary modification without insisting on the consent of the 4th respondent.
2. The petitioners state that they are the owners of premises bearing door No. 4-2-25 to 28 and 32, R.P. Road in Secunderabad. The said property originally belonged to one K. Pentaiah and it devolved on them as per the will executed by him. The site is covered by lease deed No 3027 dated 20-8-1969 in favour of the said K. Pentaiah. After his demise, the petitioners applied to the 4th respondent herein claiming rights under the said lease by way of devolution under the will dated 10-11-1975 executed by the said K. Pentaiah and the 4th respondent informed the petitioners that the records were amended to show that they were the present lessees in respect of the said plot. It is not in dispute that the said lease is valid upto 1999 and that it is renewable for another 30 years. The petitioners wanted to renovate the buildings in the said plot and accordingly got prepared plans and submitted the same to the 1st respondent on 22-1-1990 along with the necessary fee of Rs. 5,000/-. The 2nd respondent by his letter F.No. 18/TP/SD/90-298 dated 12-2-1990, signed by him on 15-2-1990 and received by the petitioners on 23-2-1990, returned the said plans "unapproved", observing as follows :
"As per lease conditions for obtaining the permission, you should submit the consent of the Estate Officer, Secunderabad and also proposals are in violation of Z.R. No. 11 of 1981 pertaining to the parking spaces.
Further, it is requested to submit revised plans in accordance with the Zoning Regulations of 1981 along with the N.D.C. from the Collector, Hyderabad and also certified copies of the lease deed."
3. It is not in dispute that the petitioners submitted along with their application dated 22-1-1990 a xerox copy of the said lease deed and of the letter of the 4th respondent stating that the records are amended to show that the petitioners are the present lessees of the said plot. As already stated above, the petitioners question the requirement by the 2nd respondent of submission of the consent of the Estate Officer, Secunderabad for the proposed renovation. The consent required to be submitted is said to be the one referred to in Sub-clause (6) of Clause 1 of the lease deed, which is as follows:-
"1. And the lessees do hereby covenant with the Secretary in the Revenue Department:-
.... ..... ..... ......
(6) Not to make any alterations in the plan or elevation of the said dwelling house without such consent as aforesaid nor to use the same or permit the same to be used for any purpose other than that a dwelling house without the consent of the Estate Officer."
4. The learned counsel for the petitioners, Sri G.V.R. Mohan Rao, contends that the obtaining of the said consent is a matter between the petitioners and the Estate Officer as per the terms of the said lease and there is no provision in the Hyderabad Municipal Corporation Act, 1955 or in the Municipal Corporation Building Bye-laws, 1981 requiring the petitioners to submit the said consent for obtaining the sanction of the plans for building construction or modification or alterations and that the 2nd respondent had no authority to require submission of the same for consideration of their application dated 22-1-1990. Neither Section 428 nor Section 436 of the Hyderabad Municipal Corporation Act, 1955 makes any mention of production of title deeds or permissions or sanctions by other authorities. The plans and other documents, which may be required to be furnished to the Commissioner under Section 429 or Section 434 of the Hyderabad Municipal Corporation Act, also do not make any reference to the same. Clause (v) of Bye-law 4.2 of the Municipal Corporation Building Bye-laws, 1981 refers to 'ownership title' to be submitted along with the application for building permit in the case of permission for erection, re-erection or making material alterations and requires that:
"Every application for building permit shall be accompanied by the following as proof of ownership :
(a) attested copy of the original sale/lease deed; and
(b) attested copy of revenue survey sheet/municipal 6urvey sheet with mutation record number, or
(c) affidavit or other documents acceptable to the Commissioner, MCH."
5. The learned counsel for the petitioners states that the said requirement was complied with by the petitioners when they submitted a xerox copy of the lease deed and of the letter of the 4th respondent amending the records showing that the petitioners are the present lessees.
6. The learned counsel for the Municipal Corporation of Hyderabad is not able to place before me any provision of the Act or the Rules or the bye-laws framed thereunder, which enable the 2nd respondent to require the petitioners to submit the consent of tht Ustate Officer, Secunderabad before their application dated 22-1-1990 could be considered for approval.
7. The learned counsel for the petitioners relies on the decisions of this Court in Annapurna Builders v. MCH, 1987 (1) A.L.T. 644. and Subash Kumar Lohade v. MCH, 1985 (1) A.P.L.J. 20. which support his contention. In the earlier decision, a learned single Judge of this Court held :
"The question, whether it is open to the MCH to refuse to consider the application for permission to construct a building complex for want of clearance of urban land ceiling authorities where the land is in excess of ceiling limit, is no longer res Integra. In many decisions of this Court, it has been held that the Corporation cannot refuse to consider the application for construction of a building for want of clearance of the urban land ceiling authority and the learned counsel for both sides agree on this aspect."
8. As regards the question whether the municipal Corporation of Hyderabad is competent to require the production of documents of title before considering the application for construction, the learned single Judge, after reviewing the case law, held that the following principles emerge :
(i) "The MCH has no power to adjudicate upon the question of title of rival claimants for granting permission to make construction on the land in question;
(ii) that the MCH does have the power to make summary enquiry as to who among the rival claimants has prima facie title, though such a decision would not be binding on any one of the parties;
(iii) the Commissioner has power to call upon the party who applies for permission for construction under Section 428 read with Building Bye-law No. 3.2, to produce the decument of title, before considering the application for an applicant for construction."
9. The learned counsel for the petitioners states that the petitioners already applied for the consent of the authorities as required by Clause 1 (6) of the lease deed and submits that such a consent is not made a precondition for the Municipal Corporation of Hyderabad approving the building plan under the Hyderabad Municipal Corporation Act, 1955 or under the Municipal Corporation Building Bye-laws, 1981. That is not deputed by the learned counsel for respondents 1 and 2. This is not a case where the lease in favour of the petitioners precludes them from renovating or making alterations to the buildings in the demised plot; the lease deed only requires prior consent of the Estate Officer for alterations in the said buildings. In paragraph 4 of the counter affidavit filed on behalf of the respondents by the Estates Officer, Secunderabad it is stated that "there are no instructions from the Government to the Collector (Estates Officer) not to give permission to make constructions on leased lands". It is also stated that as per Rule 22 of the Andhra Pradesh (Secunderabad Area) Land Administration Rules, 1976 made in exercise of the powers conferred by Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, the Commissioner of Land Revenue is the competent authority to give sanction and not the Collector. In paragraph 2 of the said counter affidavit it is stated that as per conditions 1(5) and 1(6) of the lease deed dated 20-6-1969 the prior consent is to be obtained from the Estates Officer for alteration, or change of elevation or any modification of the building or raise structures on the lease land. It is also admitted in the said counter affidavit that an application dated 2-4-90 was received in the Office of the Estates Officer on 10-4-1990 from the 2nd petitioner herein for grant of no objection certificate for constructing a building for commercial use and that after verification it was found that the file pertaining to the petitioner's lease was transferred to the Andhra Pradesh Housing Board in the year 1983 in pursuance of G.O.Ms.No. 929, Revenue (Q) Dept. dated 6-3-1980 and that therefore the petitioners were directed by Memo No. 384 dated 21-6-1990 to approach the said Board for getting no objection certificate as the leased land was under the control of the said Board from 1983 onwards. A copy of the said G.O. was not filed by the respondents. It may be that as stated in the said counter affidavit, a no objection certificate is necessary before the petitioners proceed to actually renovate or make alterations to the building. But what the petitioners are seeking now in this Writ Petition is the consideration of their application for sanction of the construction plan by the Municipal authorities. When there is nothing in the Hyderabad Municipal Corporation Act, 1955 or the Rules and bye-laws made thereunder requiring the petitioners to obtain such prior consent or no objection certificate before approaching the Municipal authorities for obtaining sanction of the i construction plans, the consideration of the application of the petitioners cannot be denied by the Municipal authorities. Admittedly the petitioners complied with the Municipal Coporation Building Bye-laws, 1981 in making the said application dated 22-1-1990.
10. I am therefore, of the view that the 2nd respondent cannot refuse to consider the application of the petitioners dated 22-1-1990 on the ground that the consent of the Estates Officer, Secunderabad was not submitted along with their application.
11. The Writ petition is therefore allowed as prayed for. No costs. Govt. Pleader's fee Rs. 250/-