Telangana High Court
S.Balwantha Reddy vs State Of Telangana And Another on 4 October, 2021
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.15596 OF 2021
ORDER:
Heard Mr. K.G. Krishna Murthy, learned Senior Counsel representing Ms. K. Kiran Mayee, learned counsel for the petitioner, Mr. Sampath Prabhakar Reddy, learned Standing Counsel for GHMC appearing on behalf of respondent No.2, learned Government Pleader for Municipal Administration and Urban Development appearing on behalf of respondent No.1 and learned Government Pleader for Revenue appearing on behalf of respondent Nos.3 and 4.
2. This writ petition is filed to call for the records including the order of cancellation / revocation of permission No.01/TPS/C2/LBNZ/ GHMC/2021, dated 09.06.2021 passed by respondent No.2 and to set aside the same.
3. FACTS:
i) The petitioner herein is claiming that he is the absolute owner and possessor of a residential house bearing M.No.2-16-78, admeasuring 290 square yards in Survey No.757, situated at Beerappagadda, Uppal Kalan, Medchal - Malkajgiri District, which is hereinafter referred to as 'the subject property'. He had purchased the same under a registered sale deed bearing document No.11671 of 2013, dated 30.10.2013. According to him, the subject property is in existence since more than 30 years.
ii) After the purchase of the subject property, the petitioner had submitted an application to respondent No.2 seeking for construction of a 2 KL,J W.P.No.15596 of 2021 residential house, on which respondent No.2 had requested the petitioner to get clearance from the Revenue Department.
iii) Pursuant to the same, respondent No.4 had addressed a letter No.B/1169/2015, dated 11.08.2015 to the authorities of respondent No.2 stating that the subject property comes under Gramakantam of Uppal Khalsa Village. Considering the said letter dated 11.08.2015, having satisfied with the application submitted by the petitioner and the fulfillment of other requirements, respondent No.2 had issued building permission vide permit No.50938/DC/EZ/Circumstances.2/2016, dated 06.06.2016 in favour of the petitioner for construction of Ground + two upper floors.
iv) The petitioner had also applied permission for digging a bore- well in the subject property so as to proceed with construction work, and respondent No.4 had accorded the permission vide letter No.B/625/2014, dated 28.05.2014.
v) While so, the Officials of Rural Water Supply & Sanitation (RWS & S) Department of Panchayath Raj as well as the Revenue Department with the help of concerned Police came to the subject property and stopped the work of digging bore-well. Then, the petitioner herein had filed W.P. No.30945 of 2016 against them, and this Court vide order dated 14.09.2016 in W.P.M.P.No.38304 of 2016 granted interim order directing the respondents therein not to interfere with the peaceful possession and enjoyment of the petitioner over the subject 3 KL,J W.P.No.15596 of 2021 property, and the said order is still subsisting. However, after hearing both the sides, the matter has been reserved for orders.
vi) Further, the Superintending Engineer, RWS & S Circle, Uppal, Hyderabad, vide its letter No.B1/285/RWS&S/14, dated 17.11.2015, sought clarification from respondent No.4 as to whether the subject property is a private land or Government land. Pursuant to the same, respondent No.4 had informed it vide letter No.B/1169/2015, dated 29.02.2016 that the subject property is a patta land and not in either Gramakantam or Government Land.
vii) Thereafter, the very same Superintending Engineer had addressed a letter dated 14.03.2016 to the Assistant City Planner, Circle- 2, Uppal, GHMC informing that as per the report of the Deputy Inspector of Survey, Malkajgiri Division, the subject property falls under Survey No.757 of Uppal Khalsa Village which is a patta land and not in either Gramakantam or Government land and thus, as per the report of respondent No.4, the portion of the subject property is patta land and not in either gramakantam or Government Land.
viii) Based on the said letters dated 11.08.2015 and 14.03.2016, respondent No.2 had granted permission on 06.06.2016 in favour of the petitioner for construction of a residential house consists of ground + two upper floors.
ix) While so, the Superintending Engineer (FAC), RWS & S had addressed letter No.B1/285/RWS&S/2020, dated 17.03.2020 to 4 KL,J W.P.No.15596 of 2021 respondent No.2 with a request to cancel / revoke the building permit dated 06.06.2016 issued in favour of the petitioner herein. Pursuant to the said letter, respondent No.2 had issued a show-cause notice dated 20.11.2020 under Section - 450 of the Greater Hyderabad Municipal Corporation (GHMC) Act, 1955, to the petitioner herein stating that he had obtained the building permit dated 06.06.2016 by misrepresentation and suppression of facts. The petitioner had submitted his explanation. Respondent No.2 without considering his explanation properly had issued the impugned proceedings on 09.06.2021 revoking the building permit dated 06.06.2016. Challenging the same, the petitioner herein has filed the present writ petition.
4. CONTENTIONS ON BEHALF OF THE PETITIONER:
i) Mr. K.G. Krishna Murthy, learned senior counsel, would submit that the petitioner had purchased the subject property under a registered sale deed dated 30.10.2013.
ii) On the request of respondent No.2, the petitioner had obtained a certificate dated 08.05.2015 vide proceedings No.C/533/2015 issued by respondent No.4, wherein it had been mentioned that the subject property has been in existence for more than 30 years.
iii) On submission of application for house construction permission, the officials of respondent No.2 sought clarification from the Revenue Authorities, who in turn informed them as well as the Superintending Engineer, RWS & S that the subject property is a patta land and it is located in Sy.No.757 of Beerappagadda of Uppal Khalsa 5 KL,J W.P.No.15596 of 2021 Village and it is not in either Gramakantham or Government Land. On satisfying the same, respondent No.2 had issued building permit dated 06.06.2016.
iv) On transfer of earlier Officer, the successor of the the Superintending Engineer, RWS & S addressed a letter to respondent No.2 authorities to cancel / revoke the said building permit issued in favour of the petitioner on the ground that it was obtained by misrepresentation and suppression of facts. According to learned senior counsel, there is no misrepresentation or suppression of fact by the petitioner and there is no title dispute as on today. There are no proceedings pending in Civil Court with regard to the title of the petitioner over the subject property.
v) Learned senior counsel has referred to several proceedings including the survey report dated 23.07.2018 issued by the Regional Deputy Director, Survey and Land Records, Hyderabad. Without considering the facts, proceedings and the survey reports and also the explanation submitted by the petitioner, respondent No.2 had issued the impugned proceedings revoking the building permit dated 06.06.2016, which is illegal.
vi) In support of his submissions, the learned senior counsel has placed reliance on the decisions rendered by the erstwhile High Court of Andhra Pradesh at Hyderabad; the High Court for the State of Telangana and the Hon'ble Supreme Court in Hyderabad Potteries Private 6 KL,J W.P.No.15596 of 2021 Limited v. Collector, Hyderabad District1; T. Rameshwar v. Commisioner, MCH2; K. Pavan Raj v. the MCH3; Challa Rajendra Prasad v. State of Telangana4; and The Church of South India Trust Association v. The GHMC5 respectively.
vii) With the aforesaid submissions, the learned senior counsel sought to allow the writ petition as prayed for.
5. CONTENTIONS ON BEHALF OF GHMC:
i) Mr. Sampath Prabhakar Reddy, learned Standing Counsel for GHMC, would contend that respondent No.2 had received a letter dated 17.03.2020 from the Superintending Engineer, RWS & S stating that the subject property is a Government Land and, therefore, it had issued a show-cause notice to the petitioner calling for his explanation, and on consideration of the explanation and also the entire record, respondent No.2 had issued the impugned proceedings dated 09.06.2021 revoking the building permit dated 06.06.2016.
ii) According to him, there is suppression and misrepresentation of fact and, therefore, there is no error in issuing the impugned proceedings under Section - 450 of the GHMC Act, 1955.
iii) With the aforesaid submissions, the learned Standing Counsel sought to dismiss the writ petition.
1 . 2001 (3) ALD 600 2 . 2006 (3) ALD 337 3 . 2008 (1) ALD 792 4 . MANU/TL/0226/2021 5 . (2010) 1 ALD 561 7 KL,J W.P.No.15596 of 2021
6. CONTENTIONS ON BEHALF OF THE REVENUE:
i) Learned Government Pleader for Revenue referring to the counter filed by respondent No.4 would contend that the subject property is in Survey No.737/1 of Beerappagadda village and it is a government land.
ii) He would further contend that though the petitioner filed W.P. No.30945 of 2016 complaining about the interference of the Superintending Engineer, RWS & S, the Revenue Authorities and the police, he did not implead the said Superintending Engineer, RWS & S as party to the present writ petition. Even the impugned proceedings were issued basing on the letter addressed by the Superintending Engineer, RWS & S and, therefore, he is a necessary party to the present writ petition. The present writ petition has to be dismissed for non-
joinder of proper parties.
iii) Referring to various survey reports, the learned Government Pleader would also contend that the subject land is in Survey No.737/1 and, therefore, the petitioner herein is an encroacher. The petitioner had obtained several proceedings from the revenue authorities including NOC dated 08.05.2015 by managing various authorities, and under the guise of such reports, by suppressing and misrepresenting the facts, the petitioner had obtained the building permit dated 06.06.2016.
iv) With the aforesaid submissions, the learned Government Pleader sought to dismiss the writ petition.
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7. ANALYSIS AND FINDING OF THE COURT:
i) As stated above, the petitioner is claiming right over the subject property under a registered sale deed dated 30.10.2013. A perusal of the schedule mentioned in the said sale deed would reveal that the petitioner had purchased the house bearing No.2-16-78, admeasuring 290 square yards or 242.44 square meters, situated at Beerappagadda, Uppal Kalan under GHMC, Uppal Circle, Uppal Mandal, the then Ranga Reddy District. There is also a recital in the sale deed that the said property was originally owned by one Mr. G. Mallaiah who expired on 22.01.1995.
Thus, the petitioner had purchased an old house under the said sale deed.
ii) Further, respondent No.4 had issued a certificate No.C/533/2015, dated 08.05.2015 certifying that the subject property purchased by the petitioner under the said document was in existence for more than 30 years. Respondent No.4 had also addressed a letter dated 11.08.2015 to the Assistant City Planner, Circle - 2, GHMC, Uppal informing that the Mandal Surveyor of its office inspected the location of the subject property and reported that the said property falls under gramakantam of Uppal Khalsa Village, and also enclosed the location map.
iii) It is relevant to note that the Deputy Inspector of Survey, Malkajgiri Division, Ranga Reddy District, submitted his report in file No.A6/4411/2015, dated 03.02.2016 to the Assistant Director, Survey & Land Records, Ranga Reddy District stating that he had verified the 9 KL,J W.P.No.15596 of 2021 records of Uppal Khalsa Village of Uppal Mandal and found that Tippon and Village Map were not available. However, he could identify Sy.No.757 with the help of Village Map and could also identify the subject property falling in Sy.No.757 of Uppal Kalan Village, and location sketch was prepared and enclosed to the said report. Referring to the said report, respondent No.4 vide his letter No.B/1169/2015, dated 29.02.2016 informed the Superintending Engineer, RWS & S Circle that the subject property falls under Sy.No.757 of Uppal Khalsa Village which is a patta land and not in either Gramakantam or Government land.
iv) It is also relevant to note that referring to the said report dated 03.02.2016 and the letter dated 29.02.2016, the Superintending Engineer, RWS & S vide its letter No.B/285/RWS&S/2014, dated 14.03.2016 informed the Assistant City Planner, Circle - 2, Uppal Circle, GHMC, Hyderabad, that the subject property falls in Sy.No.757 of Uppal Khalsa and it is a patta land and not in either Gramakantam or Government land. Referring to the same, respondent No.2 authorities had issued building permit dated 06.06.2016 in favour of the petitioner herein.
v) It is also relevant to note that the Regional Deputy Director, Survey and Land Records, Hyderabad, vide its letter No.A5/143/2018, dated 23.07.2018, informed the Superintending Engineer, RWS&S that for clarification with regard to conflict of survey reports in respect of Sy.Nos.757 and 737, the matter was entrusted to the Surveyor for field verification duly providing the map of three-men committee members 10 KL,J W.P.No.15596 of 2021 report and to verify it with the help of the Survey records of Uppal Khalsa Village. Accordingly, the Surveyor had visited the spot accompanied by the Mandal Surveyor, Girdhavari and Village Revenue Officer and verified the field with the map of three-men committee members report, wherein he picked up the common boundary of compound wall of NGRI and the scheduled property of extent 248 square yards under the occupation of the petitioner, developed the DGPS data and superimposed it upon the map of the three-men committee and village map of Uppal Khalsa Village, Uppal Mandal of Medchal - Malkajgiri District. After superimposing the developed data, it got tallied with the report of the Deputy Inspector of Survey report clarifying that the subject property to an extent of 248 square yards is falling in Sy.No.757 of Uppal Kalsa Village. The sketch prepared by the three- man committee was also enclosed along with the said letter. A perusal of the said sketch would reveal that it was signed by the Additional Director, Inspector of Survey and Regional Deputy Directors, Survey and Land Records, Hyderabad and Kakinada.
vi) It is also relevant to note that the GHMC Authorities had issued transfer of the title with regard to the subject property vide proceedings No.REV/MT/R/C02/6069/2015/C02, dated 12.08.2015 in favour of the petitioner herein.
vii) The Superintending Engineer, RWS&S Circle, Hyderabad, sought clarification from the District Collector as to whether the subject property is a government land or private land, and whether it is falling in 11 KL,J W.P.No.15596 of 2021 Sy.No.757 or 731. But, it is surprising to note that the AD, Inspector of Survey, Survey and Land Records, Medchal - Malkajgiri District vide its letter dated 15.12.2016 informed the District Collector, Medchal - Malkajgiri District that the subject property is falling in Government Land situated in Sy.No.737/1 of Uppal Khalsa Village. In the said letter, dated 15.12.2016, he has stated that the survey was conducted in the presence of the petitioner and the officials of the RWS & S, whereas, the learned counsel for the petitioner disputed the same. Even then, respondent No.3 did not file any proceedings to show that the said survey was conducted in the presence of the petitioner herein.
viii) Thereafter, the very same Superintending Engineer, RWS & S vide its letter No.B1/285/RWS&S/2014/4, dated 15.02.2018, sought clarification from the Regional Deputy Director, Survey and Land Records, Hyderabad, as to which of the two survey reports dated 15.02.2016 and 03.02.2016 are genuine. The Regional Deputy Director, Survey and Land Records, Hyderabad, sought field verification report from the survey Department who in turn has submitted their report along with the sketch stating that the subject property is falling in Sy.No.757 of Uppal Khalsa Village, and based on the said report, the Regional Deputy Director vide its letter No.A5/143/2018, dated 23.07.2018, informed the Superintending Engineer, RWS & S that the subject property is falling in Sy.No.757 to an extent of 248 square yards.
ix) Ignoring all the said aspects, the Engineer-in-Chief, Mission Bhagiratha Department, Hyderabad, had addressed a letter 12 KL,J W.P.No.15596 of 2021 No.OP.1/MB/4089/2019, dated 07.11.2019 to the District Collector, Medchal - Malkajgiri District, stating that there are discrepancies in the survey and the said survey reports are false and baseless and, therefore, he has requested to take necessary action. The Engineer-in-Chief, Mission Bhagiratha Department is not competent to come to a conclusion that the survey conducted by the concerned officials i.e., Survey and Land Records including the Regional Deputy Director and AD/Inspector of Survey. He cannot come to a conclusion that the said survey reports are false and baseless. In fact, he has no authority to say so. Pursuant to the said letter, the District Collector vide its letter No.E2/2637/2019, dated 07.03.2020, requested the Commissioner, Survey Settlement and Land Records, to depute a concerned officer for survey and demarcation of the disputed area in Sy.No.757 and 737/1 of Uppal Khalsa.
x) It is relevant to note that the Commissioner, Survey Settlement and Land Records did not conduct any survey and there is no demarcation of the subject property pursuant to the said letter dated 07.03.2020. Respondent No.2 has issued the impugned proceedings pursuant to the letter dated 17.03.2020 addressed by the Superintending Engineer, RWS & S, without waiting for the report from the Commissioner of Survey Settlement and Land Records. Surprisingly, the Deputy Commissioner, GHMC had issued show-cause notices dated 10.08.2020 and 13.11.2020 under Section - 450 of the GHMC Act, 1955 to the petitioner seeking his explanation. The petitioner has submitted his explanation through his counsel on 04.12.2020 duly enclosing copies 13 KL,J W.P.No.15596 of 2021 of all the documents in support of his contention. Without considering the same, respondent No.2 had issued the impugned proceedings dated 09.06.2021 revoking the building permit dated 06.06.2016.
xi) It is also surprising to note that the Deputy Commissioner, GHMC, vide its letter No.28359/TPS/Circumstances.2/LBNZ/GHMC/ 2019-21, dated 20.01.2021, sought clarification from respondent No.4 with regard to the status of the subject property. He has also addressed reminder dated 20.02.2021. Respondent No.4 vide its letter No.B/411/2021, dated 27.03.2021 without referring to any of the survey reports, proceedings and certificate issued by it earlier etc., and without conducting any inspection and survey afresh, clarified the Deputy Commissioner, GHMC that the subject property is located in Sy.No.737/1 of Uppal Khalsa Village, which is classified as 'sarkari'. Based on the said letter / clarification, respondent No.2 had issued the impugned proceedings dated 09.06.2021. Thus, the said impugned proceedings are without any basis and contrary to record. Respondent No.2 did not even consider the scope of Section - 450 of the GHMC Act, 1955.
xii) It is relevant to note that Section - 450 of the GHMC Act, 1955, deals with power of Commissioner to cancel permission on the ground of material misrepresentation. As per the said provision, the Commissioner has to satisfy himself that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the application given or information furnished under Section 14 KL,J W.P.No.15596 of 2021
- 428 or 433 of the GHMC Act. It is also relevant to note that the petitioner herein had submitted his application seeking permission for construction, along with relevant documents, such as copy of sale deed, Encumbrance Certificate, transfer of title certificate and receipts in proof of payment of property tax etc. There is no suppression or misrepresentation of fact by the petitioner herein. He has not given any fraudulent statement. Thus, respondent No.2 had not considered all the said aspects while issuing the impugned proceedings dated 09.06.2021.
xiii) It is also relevant to note that the petitioner herein had taken all the said contentions in his explanation dated 04.12.2020, but the same were not considered by respondent No.2. It is also relevant to note that W.P. No.30945 of 2016 is pending and the interim order passed therein is still subsisting. During subsistence of such interim order, the Superintending Engineer, RWS & S cannot seek for cancellation / revocation of the building permit dated 06.06.2016 granted in favour of the petitioner herein, as he is a party to the said writ petition. If at all he has any grievance over the subject property, he has to file counter and seek vacation of such interim order. Instead of doing so, he sought to cancel the building permit dated 06.06.2016. Thus, the entire action of the Superintending Engineer, RWS & S and respondent No.2 is illegal and contrary to their own proceedings.
xiv) It is relevant to note that neither the Superintending Engineer, RWS & S, nor the Revenue Authorities filed any suit for declaration of title or recovery of possession in a competent Civil Court. Without doing 15 KL,J W.P.No.15596 of 2021 so, they cannot claim that the property belongs to them and that it is a government land.
xv) It is relevant to note that the Superintending Engineer, RWS & S sought clarification as to whether the subject property is Government land or Patta land. It is the Revenue Department, which has to take steps. For the said reason, this Court directed the petitioner to implead relevant authorities. Therefore, according to this Court, the Superintending Engineer, RWS & S is not a necessary party.
xvi) As rightly contended by the learned senior counsel that respondent No.2 does not have power to declare or decide the title dispute between the petitioner and the Revenue Department. He has also placed reliance on the principle laid down in Hyderabad Potteries Private Limited1; T. Rameshwar2; K. Pavan Raj3; Challa Rajendra Prasad4; and The Church of South India Trust Association5. Thus, viewed from any angle, the impugned proceedings dated 09.06.2021 issued by respondent No.2 are liable to be set aside.
8. CONCLUSION:
The present Writ Petition is accordingly allowed, and the impugned order of cancellation / revocation of permission No.01/TPS/C2/LBNZ/GHMC/2021, dated 09.06.2021 passed by respondent No.2 are hereby set aside. However, in the circumstances of the case, there shall be no order as to costs.16
KL,J W.P.No.15596 of 2021 As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 4th October, 2021 Mgr