Telangana High Court
Madathinakathu Thomas Joseph vs The State Of Telangana on 26 October, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 15573 OF 2022
O R D E R:
This Writ Petition is filed seeking the following relief:
" .... to issue a writ of mandamus or any other appropriate writ, order or direction declaring the Rejection Letter bearing Lr.No. 000301/GHMC/0159/SLP1/2022-BP, dated 16.03.2022 issued by the Respondents No. 2,3 and 5 as being illegal, arbitrary, unconstitutional, without jurisdiction and in violation of the principles of natural justice and in violation of the Greater Hyderabad Municipal Corporation Act, 1955 and in violation of Articles 14, 21 and 300-A of the Constitution of India and consequently to set aside the same and direct the Respondents No. 2, 3 and 5 to grant building permission to the petitioner pursuant to his application bearing File No. 000301/GHMC/0159/SLP1/2022-BP, dated 11.01.2022 and pass such other order or orders as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice."
2. Learned Senior Counsel Sri D. Prakash Reddy appearing on behalf of Sri Sriram Polali submits that petitioner is the absolute owner and possessor of the land admeasuring Acs.2.00 in Survey No. 41/1 of Khanamet Village, Serilingampally Mandal, Ranga Reddy District. It is submitted that originally, in respect of the land admeasuring Acs.5.00, one Mohd. Suleman was granted permission to occupy the subject land under the Laoni Rules, 1950 by the Tahsildar by issuing Form-G Certificate dated 26.07.1961. It is submitted that the said laoni patta was granted on payment of market value and the patta is conclusive 2 proof that the permission to occupy land was given in terms of Rules 9(g) and 10 of the Laoni Rules. Learned Senior Counsel submits that issuance of permission to occupy in Form-G under the Laoni Rules confers absolute ownership, right and title over the land to the individual and the occupancy right is heritable and transferable without any restrictions whatsoever. It is submitted that after the demise of the said Mohd. Suleman, the land devolved on his four sons and their names were also mutated in the revenue records in respect of one-fourth share each of the subject land. It is submitted that one brother has sold the land to one Brother Maurice vide registered sale deed dated 05.07.1988 and he was put in possession. Learned Senior Counsel submits that the said Brother Maurice is uncle of the petitioner and he bequeathed the said land by Will dated 05.10.2011. He submits that after the demise of the said Brother Maurice, the petitioner has become the absolute owner of the property. He further submits that thereafter, the petitioner has made an Application to the respondents for construction of a commercial building consisting of two cellar + 1 ground + 0 upper floors through TS- bPASS portal on 11.01.2022 and the petitioner has also submitted all the required documents pertaining to title. It is submitted that the petitioner observed that one of the columns in the application page had an endorsement "Revenue NOC: In Progress". As per the 3 same, the 2nd respondent had sought NOC from the revenue department. Learned Senior Counsel submits that when an Application is made seeking building permission, the respondents cannot insist for NOC and they have to only look at the prima facie title of the property. He further submits that when an Application is filed under TS-bPASS Act, within 21 days, they have to pass orders but the Application status continued to be pending and it amounts to deemed permission. It is submitted that on 22.02.2022, on the 42nd day an additional endorsement started reflecting on the petitioner's application which has no clarity. Learned Senior Counsel submits that the petitioner has made several representations to the respondents. On 17.03.2022, in the portal it reflected as rejected, as per the report of the Special Deputy Collector -cum- Land Acquisition Officer dated 31.01.2022, Survey No. 41/1 of Khanamet village is recorded as poramboke as per the list of government lands submitted by the Collector, Ranga Reddy and also it is placed in the prohibitory list as per the letter of the Collector, land in Survey Nos. 41/1 to 41/13 is assigned land and a request is made not to grant building permission and further, the said site is affected by the master plan road. He submits that in the very same locality where the respondents are claiming that this is an assigned land, several constructions have come up and bank loans were also granted and 4 constructions have been in existence from several years. He submits that in view of the law laid down in Hyderabad Potteries Private Limited v. Collector, Hyderabad District1, they cannot insist on production of "NOC' and further the objection that proposed 45 meter master plan road is at a distance from the subject land on the ground and in no way impinges the subject land and it is going to be affected by 45 meter master plan road is also not correct as the proposed road is at a distance from the subject land. Learned Senior Counsel submits that on the similar grounds, when a Writ Petition is filed, this Court in Writ Petition No. 16868 of 2022 has passed an order to process the building application without insisting on production of NOC. GHMC has preferred Writ Appeal No. 403 of 2022 and the said Writ Appeal was dismissed by the Division Bench. It is submitted that while dismissing the Appeal, the Division Bench observed that they do not find any error or infirmity in the view taken by the learned Single Judge and on the admitted facts as culled out no case for interference is made out. Learned Senior Counsel submits that in view of the orders passed in the Writ Appeal, the Writ Petition has to be allowed by setting aside the order impugned.
3. A counter-affidavit is filed on behalf of the respondent Corporation. Sri Sampath Prabhakar Reddy, learned Standing 1 2001(3) ALD 600 5 Counsel submits that as per the records available, the land situated in Survey No. 41/1 is recorded as government land. It is submitted that the respondent Corporation having verified the records has rejected the building permission as they have taken into consideration the letter addressed by the District Collector and the Special Deputy Collector, Land Acquisition and further as the property is placed under the prohibitory list. Further, it is submitted that the said site is getting affected in the maser plan road. According to the learned Standing Counsel, as the land is government land, the Corporation has rightly refused to grant permission.
4. In Hyderabad Potteries case (cited supra), it is observed that:
" 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 6 Commissioner required to do is to find out pram facie title and lawful possession of the applicant and obviously such consideration is confined to only for the purpose of granting permission and nothing more."
In the light of the law laid down by this Court, while granting permission to the applicant, they can only look at the prima facie title and lawful possession, apart from that they cannot insist for NOC from the Revenue or any other department. It is the specific case of the petitioner that his uncle has purchased the property by way of a registered sale deed and will deed has been executed in favour of the petitioner. That being the case, when there are documents to show that the petitioner's uncle's vendor has been granted laoni patta and it is also undisputed that when it is a laoni patta, it is heritable and alienable. Further, it is the specific case of the petitioner that there are several buildings constructed and the municipality has granted permission. If the counter is very much silent on this aspect. It has to be assumed that they are admitting the fact that they have granted permission in the very same locality. When it is the case of the respondents that Survey No. 41/1 is a government and they are not granting permission, it is not stated on what basis they have granted permission to other persons. Further, the ground that petitioner's case cannot be considered as it is going to be affected as per the 7 master plan has also no legs to stand as they have already granted permission.
5. In the light of the law laid down in Hyderabad Potteries Case (supra) and also in the light of the order passed by the Division Bench of this Court in Writ Appeal No. 403 of 2022, dated 05.07.2022, the respondents shall process the building application of the petitioner in accordance with law without insisting for NOC from the revenue authorities and that the site is going to be affected in the proposed master plan.
6. The Writ Petition is accordingly, allowed. There shall be no order as to costs.
7. The miscellaneous Applications, if any shall stand closed.
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LALITHA KANNEGANTI, J 26th October 2022 ksld 8 9