Andhra HC (Pre-Telangana)
Sri K. Pavan Raj vs The Municipal Corporation Of Hyderabad ... on 3 December, 2007
Equivalent citations: 2008(1)ALD792
ORDER C.V. Nagarjuna Reddy, J.
1. This Writ Petition is one and hopefully the last of the multiple rounds of the litigation, which the petitioner's father earlier and the petitioner later subjected themselves.
2. Briefly narrated, the facts are as under:
One late Abdul Aziz Khan was pattadar of various agricultural lands comprised in Survey Nos.784 and 786 of Malkajgiri and Survey Nos.192, 198, 102 and 227 of Lalaguda village. After the death of the said pattadar, the properties were mutated in the name of Mr.Mohiuddin Khan and Ors. , who are the legal heirs of the original pattadar, vide Proceedings No.291 dated 27-4-1955. An extent of Ac.33.03 guntas was acquired out of the said land by the Railways for construction of Railway Staff Quarters and Award dated 17-2-1960 was passed under the provisions of the Land Acquisition Act, 1894. The petitioner claims that the balance land was converted into house plots by the legal heirs of the original pattadar and one such plot, admeasuring 660 Sq.yards along with room bearing House No.12-7-107/3/2/B (old) in Survey No.786/1 to 5 of Mettuguda village was purchased by the father of the petitioner under registered sale deed No.164/85 dated 19-1-1985. When respondent No.4 tried to interfere with the enjoyment of the said property by the father of the petitioner, he filed O.S.No.17 of 1992 on the file of the I Assistant Judge, City Civil Court, Secunderabad for perpetual injunction. The said suit having been dismissed on 3-12-1996, the petitioner's father filed A.S.No.2 of 1997 against the said judgment and decree before the I Additional Chief Judge, City Civil Court, Hyderabad, and he was unsuccessful in the said appeal too with the dismissal of the same on 16-10-2000. He then filed Second Appeal No.108 of 2001 before this Court and the same was allowed by judgment dated 5-8-2005, whereunder the suit was decreed. This Court while disposing of the second appeal, however, observed that if respondent No.4 is of the view that the plaintiff deserved to be evicted under provisions of any law, it shall be open to them to do so. Evidently, taking cue from the said observations, respondent No.3 issued proceedings under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 on 14-12-2005. As the petitioner's father died by that time, the petitioner questioned the said proceedings by filing Writ Petition No.27566 of 2005 before this Court and in W.P.M.P.No.35404 of 2005 this Court passed order dated 27-12-2005 granting interim suspension of the said proceedings dt. 14-12-2005.
3. While the said Writ Petition is pending, the petitioner made application dated 25-2-2006 to the Joint Collector, Hyderabad for issue of No Objection Certificate (NOC) in respect of the property in question for obtaining building permission from the 1st respondent-Corporation. The said application was rejected by the Joint Collector, Hyderabad, vide: Endorsement dated 9-6-2006 on the ground that the land in question is classified as Government land belonging to "C.G. Railways" in Town Survey Land Record. The petitioner then filed Writ Petition No.18051 of 2006 assailing the said endorsement and this Court allowed the said Writ Petition on 25-9-2006, wherein it was held that the action of respondents 1 and 2 in insisting on production of NOC for considering the building application of the petitioner cannot be sustained in the light of the settled legal position. A direction was, therefore, issued to respondents 1 and 2 to receive the petitioner's building application without insisting on NOC from the revenue authorities and further to consider the same along with relevant documents relating to title and possession and dispose of the same in accordance with law.
4. On 13-10-2006 the petitioner made an application for permission to construct a building on the plot in question. On 28/29-6-2007 the said application was rejected. Feeling aggrieved by the said rejection, petitioner filed this Writ Petition.
5. The Divisional Engineer (North), South Central Railway, Hyderabad Division at Secunderabad filed a counter-affidavit on behalf of respondents 3 and 4. It is averred, inter alia, that the plot admeasuring 660 Sq.yards, which was allegedly purchased by the father of the petitioner belongs, exclusively, to the Railways and that it is within the boundaries of the Railway land. The deponent to the counter denied existence of two rooms and any door number and also the claim of the petitioner that the left over land, after acquisition by the Railways, was converted into plots by the pattadars; and that in the Survey and Land Records, the land, which was assigned fresh Survey Numbers as S.Nos.23, 24 and 25, is shown as Railway land and in possession of the Railways. It is, however, admitted in the counter-affidavit that Second Appeal No.108 of 2001 filed by the petitioner's father was allowed on 5-8-2005, in which a finding was rendered that the petitioner's father was in physical possession of the land on the date of filing of the suit and that decree having been confined to perpetual injunction and in view of the observations made by this Court in the Second Appeal, proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were initiated to evict the petitioner, who is an unauthorized occupant of the land and that the Writ Petition filed by the petitioner questioning initiation of the said proceedings is still pending. The deponent, while also justifying rejection of NOC by the Joint Collector, Hyderabad pleaded that in reply to letter dated 4/7-5-2007 sent by the Chief City Planner, Greater Hyderabad Municipal Corporation, Town Planning Section, Hyderabad, requesting the Railways to send their objections for granting permission for construction of building on the disputed site, the Railways sent their reply on 17-5-2007 stating that they are strongly objecting to the grant of building permission as the land belongs to Railways and Writ Petition No.27566 of 2005 filed by the petitioner, questioning the notice issued by the Railways under the Provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, is pending. It is, therefore, averred that in view of the dispute of title and the issue being sub-judice before this Court, respondents 1 and 2 are justified in rejecting the application of the petitioner for granting building permission.
6. Sri B.Purushottam Reddy, Chief City Planner of the 1st respondent- Corporation, filed a counter-affidavit and from a reading of it, it is evident that the application of the petitioner for building permission was rejected only on the sole ground that the Railways, in response to the notice issued by the Corporation under Building Bye-law No.6.2, objected to the same on the ground that the issue relating to the title over the plot in dispute is sub-judice in Writ Petition No.27566 of 2005. It is also averred that since respondent No.1 is a statutory body, it is required to look into the facts of each case and that disposal of the petitioner's application is in accordance with the provisions of the Hyderabad Municipal Corporation Act, 1955 (for short "the Act").
7. Sri M.Ravindranatha Reddy, learned Counsel for the petitioner, submitted that the impugned order, by which the petitioner's application was rejected suffers from non-application of mind and the reasons given for such rejection were extraneous to the relevant Building Bye-law under which objections were called for from respondents 3 and 4. He further submitted that when once this Court allowed Writ Petition No.18051 of 2006 declaring the action of respondent No.1 in refusing to consider the petitioner's application for building permission on the ground of refusal of the Joint Collector, Hyderabad, to issue NOC, it is not open to respondent No.1 to reject the petitioner's application on a similar ground, viz., that the petitioner's title is in dispute.
8. Sri Gowri Shankar Sanghi, learned Standing Counsel for respondents 3 and 4 (Railways) submitted that as the Railways have initiated proceedings for eviction of the petitioner under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and till the disposal of Writ Petition No.27566 of 2005 filed questioning initiation of the said proceedings, the petitioner is not entitled to raise any construction on the disputed site and that respondent No.1 is, therefore, justified in rejecting the petitioner's application for building permission.
8. Smt. Kalpana Ekbote, learned Standing Counsel for respondents 1 and 2, pursued the same line of argument as was advanced by Sri Gowri Shankar Sanghi.
9. I have carefully considered the submissions of the respective counsel appearing for the parties.
10. To appreciate the rival contentions, it is necessary to refer to the relevant statutory provisions governing granting of Building permissions. Under Section 428 of the Act, every person, who intends to erect a building shall give to the Commissioner notice of his said intention in a form, obtained for this purpose under Section 435, specifying the position of the building intended to be erected, the description of the building, the purpose for which it is intended etc. Under Sub-section (1) of Section 429 of the Act, within thirty days after receipt of such notice, the Commissioner may, by written notice, require the person who has given the notice to furnish to the Commissioner all or any of the following documents, namely:
(a) correct plans and sections of every floor of the building intended to be erected or re-erected which shall be drawn to a scale of not less than one inch to every eight feet and shall show the position, form, dimensions and means of ventilation and of access to the several parts of such building and its appurtenances and the particular part or parts thereof which are, and those which are not, intended to be used for human habitation and in the case of a building intended to be used as a dwelling house for two or more families or for carrying on any trade or business in which number of people exceeding twenty may be employed or as a place of public resort, the means of ingress and egress. Such plans and sections shall also show the depth and nature of the foundation and the proposed dimensions of all the walls, posts, columns, beams, joints and all girders and scantlings to be used in the walls, stair cases, floors and roofs of such building;
(aa) a copy of the title deed of the land duly attested by a Gazetted Officer of the Government together with an urban land ceiling clearance certificate or as the case may be an affidavit referred to in Section 388.
(b) a specification of each description of work proposed to be executed and of the materials to be employed. Such specification should include a description of the proposed method of drainage of the buildings intended to be erected or re- erected and of the sanitary fittings to be used and also of the means of water supply and shall if required by the Commissioner be supplemented by detailed calculations showing the sufficiency of the strength of any part of such building;
(c) a block plan of such building which shall be drawn to the scale of the largest revenue survey map at the time being in existence for the locality in which the building is; or is to be situated and shall show the position and appurtenances of the properties, if any, immediately adjoining, the width and level of the street, if any, in front and of the street, if any, at the rear of such building, the levels of the foundations and of the lowest floor of such building and of any yard or ground belonging thereto and the means of access to such building;
(d) a plan showing the intended line of drainage of such building, and the intended size, depth and inclination of each drain, and the details of arrangement proposed for the ventilation of the drains.
11. Under Sub-section (2), at any time within the period of 30 days the Commissioner may also by written notice require the said person to open for inspection any portion or portions of the foundations or walls of the existing building.
12. Under Section 431 of the Act, the Commissioner is empowered to require production of additional information and further details within 30 days of receipt of documents, by giving written notice.
13. Under Section 432 of the Act, if any requisition made under Section 429 or 431 of the Act is not complied with, the notice given under Section 428 of the Act shall be deemed not to have been given.
14. Under Section 437 of the Act, if within thirty days after receipt of notice under Section 428 or 433 (notice for making additions etc.,) or of the plan, section, description or further information, if any, called for under Sections 429, 431 or 434, the Commissioner fails to intimate in writing to the person, who has given the said notice, his disapproval of the building which the said person proposes to erect or of the work which he proposes to execute, or if, within the said period the Commissioner signifies in writing to the said person, his approval of the said building or work, the said person may, at any time within one year from the date of the delivery of the notice to the Commissioner proceed with the said building or work. He shall, however, not contravene any of the provisions of the Act or any bye-law made thereunder in constructing the building.
15. In exercise of the powers conferred by Section 589 of the Act, the Government of Andhra Pradesh accorded sanction to the Bye-laws approved by the General Body of Municipal Corporation of Hyderabad in its Resolution No.561, dated the March, 1981. These Bye-laws are called The Municipal Corporation Building Bye-Laws, 1981. Bye-law No.4.2 prescribed the various documents to be filed and requirements to be complied with while filing the application for building permit. Clause (v) of the said Bye-law stipulates that every application for building permit shall be accompanied by the attested copy of the original sale/lease deed; and attested copy of Revenue Survey Sheet/Municipal Survey Sheet with Mutation Record No. or affidavit or other documents acceptable to the Commissioner, MCH, as proof of ownership of the applicant. Bye-law No.6.2, which is relevant for the present purpose, reads as under:
6.2. Clearance of Sites Adjoining Government property: In case of a notice (application) of intention to erect or re-erect to make material alteration in a building or to make or enlarge a wall abutting a road maintained by a Public Works Department or the property of Military Authority or Government or other statutory Body the notice shall be in duplicate and the building and site plans shall be in quintuplicate. On copy of the notice with plans and the site plan shall be forwarded by the authority to the Officer-in-Charge of the Government Department. Military Authority of Officer-in-Charge of the Statutory Body of State whether he has any objection to the proposed construction. If no such report is received from such officer within 15 days it will be deemed that the said department authority has no objection to the grant of the permission. No permission shall be refused on the basis of any objection which is not sustained by any provisions of these bye-laws or any other law applicable thereto.
16. The scope and ambit of the power of the Commissioner of the Municipal Corporation under Section 428 and 429, in particular, to the extent of his power to examine the title of the applicant for building permit has fallen for consideration of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad . In para 40 of the said judgment it is held thus:
Of course, 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, 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.
17. In Writ Petition No.18051 of 2006 filed by the petitioner against respondents 1 and 2 questioning their action in not receiving and considering his application for building permission, this Court considered the earlier judgments of this Court in K. Manemma v. Municipal Corporation of Hyderabad and Anr. Dr. G.Ananda Kumar Reddy and Anr. V. The Municipal Corporation of Hyderabad and Anr. 2006 (2) L.S.330 and other unreported judgments and held that refusal to grant building permission on the ground of non-production of NOC or TSLR of the Survey Department is illegal. On that premise, the said Writ Petition was allowed and respondents 1 and 2 were directed to consider the petitioner's application without insisting on production of NOC from the Revenue Authorities.
18. A perusal of the impugned order of rejection shows that the petitioner's application was rejected on two grounds, viz., (1) that as per the court records Sri Hansaraj (father of the petitioner) had already died, but the application was filed on his name, and (2) that as per Building Bye-law No.6.2 clearance of sites adjoining the Government property is required, that the site under reference is adjoining the South Central Railway property and the Railway Authorities are strongly objecting to grant of building permission on the ground that Writ Petition No.27566 of 2005 is pending in this Court and that, therefore, the issue of title to the property is sub-judice.
19. As regards ground No.1 supra, in the counter-affidavit respondents 1 and 2 have not reiterated the same to justify the order or rejection. In any case, there is no dispute that the petitioner is the son of Sri Hansraj and as the petitioner claims that since the property stood in the name of his father, in the application his father's name was shown. However, this defect pointed out being a curable one, the petitioner is permitted to give required clarification and, if necessary, file a fresh application in his name.
20. Therefore, on this objection, respondents 1 and 2 are not justified in denying grant of building permission to the petitioner.
21. The other ground, which is substantial, as noted hereinabove, pertains to the objection raised by the South Central Railway under Bye-law No.6.2.
22. From a reading of the said Bye-law, which is reproduced hereinabove, it is clear that it does not empower the 1st respondent-Corporation to entertain an objection relating to a title dispute. It only facilitates the adjacent property holder, viz., Public Works Department, Military authority or Government or other Statutory Body, to raise objection to the proposed construction obviously to ensure that the proposed building does not obstruct or hinder the activities of the said authorities/bodies. It is significant to notice the caveat contained in the said clause, viz., "no permission shall be refused on the basis of any objection which is not sustained by any provisions of these bye-laws or any other law applicable thereto".
23. 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 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.
24. In the instant case, this Court in Second Appeal No.108 of 2001, filed by the father of the petitioner, gave a categorical finding that the petitioner's father was in possession of the property and in the process the learned Judge found fault with the findings of the trial Court that title deeds of the petitioner's father contained several defects. The learned Judge also observed that the trial Court, having recorded a finding that respondent No.4 failed to make out any case of its own, dismissed the suit. These observations in the judgment in the Second Appeal, prima facie, go to show that respondent No.4 failed to convince this Court that they have lawful title over the property. In any event, since Writ Petition No.27566 of 2005 is pending, the issue relating to the title could be decided therein. As the scope of objection raised by respondents 1 and 2 based on title to the property falls outside the purview of Bye-law No.6.2, respondent No.1 ought not to have given credence to the objections raised by respondents 3 and 4.
25. It is worthwhile to notice that neither in the objections filed by respondents 3 and 4, nor in the impugned order of rejection, any objection based on the technical grounds, such as causing of obstruction or hindrance for proper and convenient utility of Railway property by the proposed building has not been raised. Therefore, the objections, which were raised by the Railways, based on title, fall outside the scope of Bye-law No.6.2 and rejection of building permission on the basis of those objections is not sustainable in law.
26. The judgment of the Supreme Court in City and Industrial Development Corporation of Maharashtra and anr. v. Ekta Mahila Mandal and Anr. 2007(6) SUPREME 551 relied upon by the learned Standing Counsel for respondents 3 and 4 has no relevance, whatsoever, to the facts of the present case.
27. For the aforementioned reasons, the Writ Petition is allowed. Order dated 28/29-6-2007 passed by 2nd respondent is set aside. Respondents 1 and 2 are directed to consider the application of the petitioner for grant of building permission afresh within a period of four (4) weeks without reference to the objections filed by respondents 3 and 4. It is, however, made clear that granting of building permission to and construction of the building by the petitioner shall be subject to the outcome of Writ Petition No.27566 of 2005.