Andhra Pradesh High Court - Amravati
M/S Dharani Kartikeya Builders vs The State Of Andhra Pradesh on 7 December, 2020
1
*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION No.2542 of 2020
% 07th December, 2020
# M/s Dharani Kartikeya Builders and another
... Petitioners
AND
$ The State of Andhra Pradesh rep. by its
Principal Secretary, (Municipal
Administration), Secretariat, Velagapudi,
Amaravathi and three others.
... Respondents.
! Counsel for the Petitioners : Sri R.Siva Sai Swarup
^ Counsel for the 1st respondent : Government Pleader for Municipal
Administration
^ Counsel for the 2nd to 4th respondents: Sri S.Lakshmi Narayana Reddy,
Standing counsel for GVMC.
< Gist:
> Head Note:
? Cases referred:
1) AIR 2006 SC 3608
2) 2017 (4) ALT 112
3) 2006 (6) ALT 221
4) 2001 (3) ALD 600
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION Nos.2542 of 2020
ORDER:
This Writ Petition is filed for the following relief:
"....to issue a Writ, Order or Direction more particularly, in the nature of a Writ of Mandamus, declaring the action of the respondents served an impugned Notice dt.15.10.2019 even though the respondent Corporation was earlier got approved a Building Plan vide B.A.No. 1086/0652/B/24/KDA /2018, dt.24.09.2019 after receipt of all the documents of the includes Link documents even without issuance of show cause notice all are illegal, arbitrary, unlawful, violation of the laws as guaranteed under Articles 19, 21, 300-A of the Constitution of India, violation of principles of Natural Justice. Consequently to set aside the impugned Notice dt.15.10.2019 in the interest of the justice and to pass such other order or orders as the Hon'ble Court may deem fit just and proper in the circumstances of the case."
PETITIONERS SUBMISSIONS:
The 1 petitioner before this Court is a builder, who st entered into a Development agreement with Irrevocable General Power of Attorney dt.22.05.2017 with the 2 nd petitioner and one R. Sudha Madhavi, who are the owners of a site in an extent of 610 Sq.yards in Sy.No.12/4 at Kapparada, Ayyappanagar, Visakhapatnam.
The 1 petitioner was given an approved building plan st for construction of a building in September, 2019. After the plan was approved and while he was constructing a building, the impugned notice dated 15.10.2019 was issued directing 3 him to stop all further constructions. Sri Siva Sai Swarup, learned counsel for the petitioners, points out that the notice is bad in law and that the 4 respondent-municipality does th not have the power to enter into the disputed questions of title and possession etc., and issue notices. Relying upon the impugned notice learned counsel for the petitioners points out that the work was directed to be stopped as (1) there is a pending dispute between the Hindustan Shipyard House Building Cooperative Society and others (2) A No objection certificate was not obtained from the ULC authorities and (3) Proper link documents were not submitted. Learned counsel submits that the 4 respondent-municipality can only go into th prima facie title. He submits that the registered documents etc., were given and the building plan was approved in his favour in September, 2019. At that point of time the respondents did not raise any issues about the title. He also argues that the Writ Petition mentioned for a declaration of a title is between Hindustan Shipyard House Building Cooperative Society and others is not in any way related to the present site. He argues that NOC from ULC authorities is no longer necessary as the ULC Act itself has been repealed. Lastly, he submits that the proper link documents were demanded without making it clear as to what are these documents. Without prejudice he also relies upon Section 429 (1) of the Municipal Corporation Act (in short "the Act") and argues that a copy of the title deed duly attested by a 4 gazetted officer along with a ULC certificate are only the two documents that are required to be filed. Therefore, he submits that the 4 respondent-municipality has committed a th serious error in stopping the work and entering into an area to which it is not statutorily entitled. He points out that the notice itself does not show what is the "dispute" pending or what are the proper link documents. Therefore, learned counsel argues that this is a fit case in which the Court should interfere and set aside the impugned notice dated 15.10.2019.
RESPONDENTS SUBMISSIONS:
In reply to this, Sri S.Lakshminarayana Reddy, learned standing counsel for the 4 respondent, vehemently argues th that there is a Writ Petition No.1216 of 2004 which is pending and that the municipality has a duty to ensure that the litigated properties are not built upon. He also points out that the land is situated in Sy.No.12/4, and is included in the Section 22-A "prohibited list"of ULC properties. The list of properties under Section 22A (1) (B) of the Registration Act is produced. Learned counsel draws the attention of the Court to this document and points out that if the land in Sy.No.12/4 is an "Urban Land Ceiling" property. Therefore, learned standing counsel submits that the respondents were rightly not satisfied with the title. Apart from this he also draws the attention of this Court to the building plan that is 5 granted and particularly condition Nos.1 and 16 of the conditions appended to the building plan and submits that if the documents submitted are found to be false or fabricated, the permission can be cancelled as per Rule-1. He also argues that as per Condition No.16 a final approval will be given subject to the verification of the documents and reports. Any deviation in the documents and report submitted can lead to cancellation or rejection of the proceedings. Relying upon two judgments of learned single Judges, which are appended to the counter affidavit learned standing counsel argues that this is a proper exercise of jurisdiction by the Municipal Commissioner and prays that the writ should be dismissed.
COURT:
This Court after hearing both the learned counsel notices that there is no serious dispute about the facts. A plan was in fact granted and approval was given to the petitioner to begin his construction. The same was later cancelled and the impugned notice talks about a dispute pending in the High Court of Andhra Pradesh. Learned counsel for the petitioners has gone on record stating that the W.P.No.1216 of 2004 is not in any way connected with the present site. The respondents did not file any documents to show that the dispute in W.P.No.1216 of 2004 is in fact related to the site in this case. A search of the official website 6 of this High Court reveals that the dispute in W.P.No.1216 of 2004 is with regard to the following relief:
"To issue a writ or order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents in issuing G.O.Ms.No.340, Revenue UCI Department, dated 05.03.2003 regulating the plots to the members of the 3 rd respondent, which is the land belonging to the petitioner as highly illegal and set aside the same with a direction to the respondents not to grant or process any exemptions of the 3 rd respondent-The Diesel Loco and other South Eastern Railway Employees Cooperative House Building Society Ltd., Visakhapatnam"
Thus, the link between the present land and the land in W.P.No.1216 of 2004 is not clear.
(2) The second issue raised is about a notice from the ULC authorities. The Urban Land Ceiling Act itself has been repealed in March-1999. What is produced before this Court is only list of properties, which are included in the prohibited properties under Section 22 (1)(a)(b) of the Registration Act, which prohibits the registration of property, which are mentioned of the list. The petitioner has come before this Court stating that he has already purchased the property under a development agreement along with irrevocable General Power of Attorney from one R. Sudha Madhavi and Smt. Gandi Komal, 2 nd general power of attorney. This document was registered on 22.05.2017.If the property was included in the prohibited list this Court is of the opinion that 7 it is for the party aggrieved by the registration of that document to take a plea that the property is covered by Urban Land Ceiling Act and that it is wrongly registered. It may even open to the State if it can prove that the property has vested in the State to take action, but on the ground that there is a lack of a 'no objection certificate' from ULC the petitioner's right to construct the building cannot be stopped. The basic presumption that a registered document is valid cannot be lost sight of (Pream Singh and Others v Birbal and Others1).
In addition to this, this Court also notices that the endorsement that proper link documents are not produced is extremely vague. If the 4 respondent-Municipal Corporation th was of the opinion that its enquiry into the prima facie titleis not completed it should have listed the documents which are required to be produced instead of saying "proper link documents". There is a procedure stipulated for searching information by the Commissioner as can be seen from Section 429 of the Act, followed by Section 431 of the Act before a final order is passed under Section 450 of the Act.
(3) The next ground urged very vehemently by the learned standing counsel is that the permission that is granted is not absolute and that as per the conditions 1 AIR 2006 SC 3608 8 appended to the permission it can be revoked. Clause 1 of the condition is as follows:
"1. The permission accorded does not confer any ownership rights. The permission will be revoked at later stage, if it is found that the documents or information are false and fabricated."
A reading of this clause shows that a right is given to revoke the permission if it is found that the documents or information are false and fabricated. 'False' and 'Fabricated' are the words of specific legal connotation and meaning. A registered document as per the settled law carries a presumption that it is validly executed as mentioned supra. If the municipal authorities are of the opinion that the document or information is false and fabricatedit has a duty to specify how the document is false and fabricated. The use of the conjunction "and" makes it clear that both the conditions (false and fabricated) must be present. The same is not done in this case. Coming to the condition No.16 it is as follows:
"16.This permission is given based on the inputs on pages, documents and drawing provided by Applicant. Applicant confirms that the documents / drawings submitted electronically or inputs by them are correct. The final approvals of proceedings are subjected to verification of reports and documents by concerned official including site visit report. Any deviation identified will lead to modification / rejection of the proceedings."9
The final approval is subject to verification of the reports and documents submitted by the petitioners. If there is a deviation between the report, documents and the situation of the site, the 4 respondent-Municipal Corporation can modify th or reject the proceedings. Therefore, in the opinion of this Court this rule also applies to the inputs that are given by the applicant / petitioner in the form of documents, drawings etc. If the documents and drawings do not match what is found at the site by the concerned official or if the concerned officials come to the conclusion that there is a deviation it can lead to modification or a rejection of the proceedings. The same is also not present in the present case.
Time and again it has been reported by various courts including the highest courts of the land that orders having civil consequences should be reasoned orders. These reasons would enable either the Court or higher authority to examine the correctness of the same. The thought making process of the respondents should be visible when such orders are passed. The relevancy of the dispute in the High Court of Andhra Pradesh and its connection to the present site are not spelt out with clarity. The 1 petitioner has filed a registered st document before the respondents and a plan was approved. The need or the necessity for NOC from the ULC authority is not spelt out. Similarly, as to what are the proper link documents is also not borne out by the record. 10
Lastly, this Court also notices that the details of the registered document are available with the respondents, yet the action does not speak clearly why the said document is invalid in law or are false and fabricated. This Court notices that a conjoint reading of Sections 429, 431 and 450 makes it clear that before the final order is passed under Section 450 cancelling the building permission the Commissioner can call for further information / documents (Section 429 of the Act) and also additional information etc., (Section 431 of the Act). This would enable the Commissioner to come to a conclusion. But the same is not done.
Coming to the judgments cited by the learned counsel for the petitioners, the propositions of law are not really in doubt. But a close reading of the judgment reported in Guntuka Raja Ram v State of Telangana and others2would show that Commissioner should only examine prima facie title. If there is any doubt about the title and there is a serious dispute, the Commissioner may take a decision after obtaining a legal opinion to grant or reject the permission. If there is a serious triable issue between the parties the Commissioner can relegate the parties to approach the civil Courts for resolving dispute. Therefore, in the opinion of this Court what the learned single Judge held in this case is that if there is a serious dispute between two parties, one of whom applied for a plan and another objected 2 2017 (4) ALT 112 11 to it, the Commissioner can relegate the parties to the civil Court to get a proper finding on the title.
In V. Jaya Prakash v Commissioner of Municipality, Khapra Municipality, Khapra, R.R.District and Another3, also at para 37 and 38, it is reiterated that it is open to the Commissioner to come to a prima facie conclusion and reject the permission for the plan. In fact, in para 37 of the judgment in Hyderabad Potteries Private Limited v Collector, Hyderabad4was cited with approval. In that case, the permission for construction was refused on the ground that the entries in Town Survey Land Register showed that the land was the Government Land. The learned single Judge held that the Commissioner cannot reject the building permission only on this basis. It is also held that the granting of the permission would not take away the rights of objectors, whether it is Government or an individual, in asserting their rights in any manner known to law. Therefore, in para-38 it was held that the Commissioner can, in case of a serious dispute, reject the permission and direct the parties to go before a civil Court. It is also clear from this judgment that there were number of orders already passed at various levels by which permission to construct was not given. This is clear from paragraph 39. A reading of the facts in this case would show that there are large number of civil suits which are 3 2006 (6) ALT 221 4 2001 (3) ALD 600 12 pending before the Courts, including suits for declaration of title. The plan was not granted on the ground that the adjudication of the disputes has to be completed. This action was upheld. A reading of the judgment also shows that there was a serious dispute "between rival claimants" who claimed title to the property. In such a case the action of the Commissioner in postponing the approval of the plan was upheld. The facts in this case are thus different and in fact in V. Jaya Prakash case(3 supra)the learned single Judge held that the ratio in one case cannot be applicable to another case even if there is a slight variation in the facts (para-32). This Court does find a distinguishing feature in both the cases which are cited by the learned counsel for the respondents, which makes their application to the present case doubtful. A serious dispute between two parties claiming title to a land would be a justification for the Commissioner to postpone or reject the building plan. Such a fact situation is not present in this case. The reason is also not far to see. A prima facie investigation should reveal that the petitioners have a prima facie title in the property. If a serious dispute about the title is raised by a contesting party to the very same property or to the right of the petitioners then it cannot be said that the same can be shut out from consideration while examining prima facie title. In the present case, such a dispute is not raised by any "competing title holder" to the property. As mentioned earlier it is for the 13 Government or anybody else interested in the site to take appropriate legal action to establish their rights if the writ petitioner does not have title; as advocated by the respondent. No one has raised such a dispute.
For all these reasons this Writ Petition is liable to be allowed. Accordingly, the Writ Petition is allowed. There shall be no order as to costs.
Consequently, the miscellaneous applications, pending if any, shall also stand closed.
__________________________
D.V.S.S.SOMAYAJULU, J
Date: .11.2020.
Note: LR Copy to be marked.
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