Telangana High Court
Akarapu Badrinath vs The State Of Telangana on 30 December, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.10419 OF 2023
ORDER:
Heard Mr. B. Mayur Reddy, learned Senior Counsel representing Mr. Saini Aravind, learned counsel for the petitioner, Mr. Srinivas Rao Pachwa, learned Standing Counsel appearing for respondent Nos.2 and 3 and Mr. Jalli Kanakaiah, learned Senior Counsel representing Mr. G. Ravinder, learned counsel for respondent Nos.4 and 5.
2. The present writ petition is filed to declare the action of respondent No.3 in passing impugned revocation order dated 10.04.2023 revoking the building permit order dated 03.03.2022 as illegal, and for a consequential direction to respondent No.3 to withdraw the revocation order dated 10.04.2023.
3. CASE OF THE PETITIONER:
i) The petitioner herein is claiming that he along with three (03) others purchased plots bearing Nos.33, 34, 48 and 49, admeasuring 200 square yards each, making a total extent of 800 square yards in Survey Nos.106 and 107, situated at Kothapet Village, Uppal Mandal, Rangareddy District, on the strength of a registered sale deed bearing 2 KL,J W.P. No.10419 of 2023 document No.201 of 2022, dated 05.01.2022 executed by Mrs. Mandava Asha Priya W/o Mr. Prabhakar.
ii) His Vendor, Mrs. Mandava Asha Praya, purchased the aforesaid plots under a registered sale deed bearing document No.5338 of 1996, dated 23.09.1996 from Mr. Panga Pentaiah and others.
iii) Thereafter, when respondent Nos.4 and 5 tried to interfere with her peaceful possession over the subject plots, she has filed a suit vide O.S. No.1034 of 2021 against respondent Nos.4 and 5 and another for perpetual injunction. She has also filed an Interlocutory Application vide I.A. No.121 of 2022 seeking interim injunction, wherein she got ad interim injunction vide orders dated 04.08.2021.
iv) During pendency of the aforesaid suit and subsistence of ad interim injunction, the vendor of the petitioner had submitted an application dated 30.10.2021 with Zonal Commissioner, L.B. Nagar Zone, GHMC, seeking permission for construction of a residential building consists of 1 Stilt + 5 Upper Floors over the subject plots. On consideration of the said application, the Zonal Commissioner has granted building permit order dated 03.03.2022 in favour of the vendor of the petitioner for construction of the 1 Stilt + 5 Upper Floors over the subject plots.3
KL,J W.P. No.10419 of 2023
v) During pendency of the said suit and subsistence of ad interim injunction and pendency of application submitted seeking construction of building, the vendor of the petitioner sold the subject plots to the petitioner herein and 3 others under a registered sale deed bearing document No.201 of 2022, dated 05.01.2022. Thereafter, the building permit application dated 30.10.2021 submitted by the vendor of the petitioner was considered by the Zonal Commissioner of L.B. Nagar granting building permit order dated 03.03.2022 in favour of the vendor of the petitioner for construction of a residential building consists of 1 Stilt + 5 Upper Floors.
vi) After hearing both parties, vide order dated 30.11.2022, learned V Junior Civil Judge, Rangareddy District at L.B. Nagar dismissed I.A. No.121 of 2022 in O.S. No.1034 of 2021 filed by the vendor of the petitioner seeking interim injunction vacating the ad interim injunction granted on 04.08.2021. However, during pendency of the said suit, the vendor of the petitioner sold the subject plots in favour of the petitioner and others and, therefore, she withdrew the aforesaid suit as not pressed.
vii) While so, after sale of the subject plots in favour of the petitioner herein and 3 others and after obtaining the building permit 4 KL,J W.P. No.10419 of 2023 order dated 03.03.2022 and after dismissal of I.A. No.121 of 2022 in O.S. No.1034 of 202, the vendor of the petitioner withdrew the suit, O.S. No.1034 of 2021, on 08.03.2023.
viii) After withdrawal of the said suit by the vendor of the petitioner, the petitioner herein and 2 others filed a suit vide O.S. No.2112 of 2022 on 09.12.2022 against respondent Nos.4 and 5 for perpetual injunction. They have also filed an Interlocutory Application vide I.A. No.346 of 2022 seeking interim injunction. Vide order dated 09.12.2022, learned I Additional Senior Civil Judge, Medchal - Malkajgiri District granted ad interim injunction in favour of the petitioner herein and others restraining respondent Nos.4 and 5 from interfering with his possession over the subject plots. The said suit is pending and the said interim injunction is also subsisting.
ix) While the matter stood thus, respondent Nos.4 and 5 made a representation to the GHMC with a request to revoke the building permit order dated 03.03.2022 obtained by the vendor of the petitioner in respect of the subject plots for construction of building consists of Stilt + 5 Floor. Since the same was not considered by the official respondents, respondent Nos.4 and 5 filed a writ petition vide W.P. No.14567 of 2022 and the same was dismissed vide order dated 24.03.2022. As against the 5 KL,J W.P. No.10419 of 2023 said order, respondent Nos.4 and 5 filed a writ appeal vide W.A. No.289 of 2022, which was also dismissed vide order dated 19.04.2022.
x) Having exhausted all the remedies, respondent Nos.4 and 5 approached respondent No.3 seeking cancellation of building permission accorded in favour of vendor of the petitioner. Pursuant to the same, respondent No.3 issued a show-cause notice dated 09.03.2023 to the vendor of the petitioner as to why the said building permit order should not be revoked. Since the vendor of the petitioner sold the subject plots, she did not take any interest. However, the petitioner submitted a detailed reply to respondent No.3. Without considering all the said aspects, respondent No.3 passed impugned revocation order dated 10.04.2023. Thus, the said impugned revocation order is illegal in the present writ petition.
4. CONTENTIONS OF RESPONDENT Nos.4 & 5:
i) They are the owners and possessors of the land admeasuring Acs.1.04 guntas in Survey No.106 and admeasuring Ac.0.38 guntas in Survey No.107, making a total extent of Acs.1.38 guntas, situated at Kothapet Village, Uppal Mandal, Rangareddy District, on the strength of a registered Agreement of Sale - cum - General Power of Attorney 6 KL,J W.P. No.10419 of 2023 (AGPA) with Possession bearing document No.3153 of 2007, dated
05.03.2007 executed by Mrs. Chittaboina Balamani & 6 others.
ii) Initially, one Mr. Chukkya Gandayya and 2 others were the pattadars of agricultural land admeasuring Acs.1.02 guntas in Survey No.106 and they had executed a sale deed bearing document No.3812 of 1968, dated 22.08.1968 in favour of Mrs. T. Narsingamma. The said T. Narsingamma along with her husband and others in turn sold the said extent apart from other extent in Survey No.107 making a total extent of Acs.2.17 guntas to one Mr. Chittaboina Narsayya Yadav under a registered sale deed bearing document No.2311 of 1976, dated 27.12.1971.
iii) The said Chittaboina Narsayya Yadav died on 21.04.1990 and his son, late Chittaboina Mahender Yadav was found missing and he was declared as presumed death vide proceedings dated 19.10.2005 issued by the MRO. In view of the same, the name of legal heir of late Chittaboina Mahender Yadav i.e., Chittaboina Balamani was mutated in revenue records and issued pattadar passbook etc., in her favour.
5. ANALYSIS AND FINDING OF THE COURT:
i) As discussed supra, the petitioner is claiming that he along with 3 others purchased plot bearing Nos.33, 34, 48 and 49, admeasuring 200 7 KL,J W.P. No.10419 of 2023 square yards in Survey Nos.106 and 107, situated at Kothapet Village, Uppal Mandal, Rangareedy District, on the strength of a registered sale deed bearing document No.201 of 2022, dated 05.01.2022 from Mrs. Mandava Asha Priya.
ii) Whereas, respondent Nos.4 and 5 are claiming that they have purchased the land admeasuring Acs.1.38 guntas in Survey Nso.106 and 107, situated at Kothapet Village under a registered AGPA bearing document No.3153 of 2007, dated 05.03.2007 from Mrs. Chittaboina Balamani and others. According to the petitioner, the vendor of respondent Nos.4 and 5 sold the said property to respondent Nos.4 and 5 during pendency of a suit vide O.S. No.470 of 2007 filed by her seeking perpetual injunction against the defendants therein. The said suit was dismissed on 28.12.2012.
iii) Respondent Nos.4 and 5 filed a writ petition vide W.P. No.14567 of 2022 challenging the building permit order dated 03.03.2022 obtained by the vendor of the petitioner. Vide order dated 24.03.2022, this Court dismissed the said writ petition holding that the vendor of the petitioner has registered document in her favour and whether the said document is genuine or not, Municipality cannot consider. However, liberty was granted to them to seek appropriate 8 KL,J W.P. No.10419 of 2023 remedy before the Civil Court against the GHMC as well as Vendor of the petitioner.
iv) Feeling aggrieved by the said order, respondent Nos.4 and 5 preferred an appeal vide W.A. No.289 of 2022, and vide order dated 19.04.2022, Division Bench dismissed the said appeal.
v) In view of the liberty granted by this Court, vide order dated 24.03.2022 in W.P. No.14567 of 2022, respondent Nos.4 and 5 had submitted representations dated 12.07.2022 and 23.01.2023 with respondent No.2 with a request to revoke the building permit order dated 03.03.2022 obtained by the vendor of the petitioner on the ground of misrepresentation/suppression of fact i.e., pendency of O.S. No.1034 of 2021. On receipt of the said representations, respondent No.2, vide notice dated 21.03.2022 requested the vendor of the petitioner to submit all related documents along with Court papers etc. She has submitted replies dated 23.03.2022 and 18.07.2022. On consideration of the aforesaid explanations, orders dated 24.03.2022 in W.P. No.14567 of 2022, dated 19.04.2022 in W.A. No.289 of 2022, on hearing the petitioner, his vendor and respondent Nos.4 and 5, vide proceedings dated 10.04.2023, respondent No.2 revoked the building permit order dated 03.03.2022 issued in favour of the vendor of the petitioner on the 9 KL,J W.P. No.10419 of 2023 ground of misrepresentation/suppression of fact i.e., pendency of suit O.S. No.1034 of 2021 filed by the vendor of the petitioner against respondent Nos.4 and 5 seeking perpetual injunction.
vi) Challenging the said impugned revocation order 10.04.2023, the petitioner filed the present writ petition.
vii) Mr. B. Mayur Reddy, learned Senior Counsel contended that there is no misrepresentation/suppression of fact by the Vendor of the petitioner while submitting application dated 30.10.2021 and by the petitioner while obtaining building permit order dated 03.03.2022. In fact, there are no adverse orders against the petitioner and his vendors in the suits filed by them i.e., O.S. No.1034 of 2021 and O.S. No.2112 of 2022. Thus, it is not a suppression/misrepresentation of fact. If there is any suit or legal proceeding pending against the petitioner or his vendor, or any adverse orders against them, they have to disclose the said fact in the application submitted by them under TS-bPASS seeking permission for construction. In the present case, there is no adverse order against them and, therefore, there is no need of disclosing the said suits and, therefore, there is no suppression or misrepresentation of facts by the petitioner and his vendor. He has placed reliance on the judgments in K. 10 KL,J W.P. No.10419 of 2023 Pavan Raj v. Municipal Corporation of Hyderabad, Hyderabad 1 and Guntuka Raja Ram v. State of Telangana 2.
viii) Whereas, Mr. Srinivas Rao Pachwa, learned Standing Counsel appearing for respondent Nos.2 and 3 and Mr. Jalli Kanakaiah, learned Senior Counsel appearing on behalf of respondent Nos.4 and 5, would contend that the petitioner's vendor suppressed pendency of O.S. No.1034 of 2021 while submitting application dated 30.10.2021 with Zonal Commissioner seeking permission for construction of a residential building. Therefore, there is suppression of fact on the part of the vendor of the petitioner. Whether the said suit filed by the petitioner's vendor and that there is no adverse order against her is not criteria and she has to necessarily disclose pendency of the said suit in the aforesaid application at the relevant column while submitting her application. In the present case, the vendor of the petitioner did not disclose pendency of said suit O.S. No.1034 of 2021 in her application dated 30.10.2021. Therefore, there is suppression/misrepresentation of fact by the vendor of the petitioner. Thus, the building permit order dated 03.03.2022 is liable for revocation. On consideration of the said aspects only and after following due procedure laid down under law, vide proceedings dated 10.04.2023 1 . 2008 (1) ALD 792 2 . 2017 (4) ALD 415 11 KL,J W.P. No.10419 of 2023 respondent No.2 revoked the building permit order dated 03.30.2022 obtained by the vendor of the petitioner.
ix) In the light of the aforesaid submissions, the only question that falls for consideration before this Court is, as to whether there is any suppression/misrepresentation of fact by the vendor of the petitioner in the application dated 30.10.2021 submitted for building permission?
x) There is no dispute that the vendor of the petitioner had submitted the aforesaid application dated 30.10.2021 under TS-bPASS by way of self-declaration and self-certification. Admittedly, as on the date of submission of the said application i.e., 30.10.2021, the suit in O.S. No.1034 of 2021 filed by the vendor of the petitioner against respondent Nos.4 and 5 and another seeking perpetual injunction is pending. Even then, she did not disclose the said fact to the Zonal Commissioner while submitting an application seeking building permission.
xi) It is apt to note that during pendency of the said suit and the aforesaid application dated 30.10.2021, she sold the subject plots to the petitioner and 3 others under a registered sale deed bearing document No.201 of 2022, dated 05.01.2022. Thereafter, she has not informed the said fact to the Zonal Commissioner with whom the aforesaid building 12 KL,J W.P. No.10419 of 2023 permission application dated 30.10.2021 submitted by her seeking permission is pending. Even the petitioner did not inform about the purchase of subject plots. Therefore, the Zonal Commissioner has issued building permit order dated 03.03.2022 in favour of the vendor of the petitioner. Thus, there is suppression of fact by the vendor of the petitioner i.e., pendency of O.S. No.1034 of 2021 as on the date of submission of application dated 30.10.2021 and obtaining building permit order dated 03.03.2022.
xii) It is also apt to note that, learned trial Court granted interim injunction in favour of the vendor of the petitioner and against respondent Nos.4 and 5 vide order dated 30.11.2022 in I.A. No.121 of 2022 in O.S. No.1034 of 2021. It was after hearing the parties. Thereafter, the vendor of the petitioner withdrew the said suit on 08.03.2023.
xiii) In Guntuka Raja Ram2, vide order dated 21.12.2015, the GHMC authorities refused to grant building permission in favour of the petitioner for construction of building in respect of the subject property therein on consideration of title disputes between the petitioner and unofficial respondents. Therefore, on examination of facts of the said case, this Court held that the Commissioner is only required to examine 13 KL,J W.P. No.10419 of 2023 the prima facie title of the applicant and if there is any doubt or any objection of serious nature is received, it may be desirable for him to obtain legal opinion to come to a conclusion as to whether the dispute in relation to title is of a serious nature and based on such legal opinion, the Commissioner may take a decision either to grant or reject the permission for construction. But, the facts of the said case are different to the facts of the present case.
xiv) In Pavan Raj1, the application submitted by the petitioner was rejected on the ground that as per the Court records, father of the petitioner therein had already died, but the application was filed on his name and that as per the building Bye-law No.6.2, clearance of sites adjoining the Government property is required. 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 W.P. No.27566 of 2005 is pending and that the issue of title to the property is subjudice. On examination of the facts of the case therein and also placing reliance on the judgment of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad 3, this Court held that on the aforesaid two grounds Commissioner cannot reject 3 . 2001 (3) ALD 600 14 KL,J W.P. No.10419 of 2023 the application submitted by the petitioner seeking construction of building permission. Thus, the facts of the said case are different to the facts of the present case.
xv) In Bobbala Rajireddy v. The State of Telangana 4, building permit order was revoked on the ground that the petitioner has obtained it suppressing the orders passed in W.P. No.26340 of 2003 and pendency of suit in O.S. No.82 of 2019. The said writ petition and suit are filed by the petitioner therein and there are no restraint orders or adverse orders against the petitioner therein. Therefore, there was no suppression or misrepresentation of facts. There is no need of disclosing the pendency of the said writ petition and suit. On the said grounds, this Court set aside the impugned revocation order dated 22.07.2022 and intimation letter dated 02.11.2022. Thus, there is no consideration of suppression/misrepresentation of facts in terms of Section - 7 (11) of the TS-bPASS Act, 2020.
xvi) Vide order dated 24.03.2022 in W.P. No.14567 of 2022, this Court did not consider the aspect of suppression and misrepresentation of facts by the vendor of the petitioner herein while submitting application dated 30.10.202021 seeking building permission for 4 . W.P. No.40836 of 2022, decided on 06.12.2022 15 KL,J W.P. No.10419 of 2023 construction of a residential building. However, this Court granted liberty to respondent Nos.4 and 5 to avail appropriate remedy in accordance with law. Even in the order dated 19.04.2022 in W.A. No.289 of 2022, there is no consideration of misrepresentation and suppression of fact.
xvii) It is relevant to note that in Smt. Lalitha Srikrish v. The State of Telangana, rep.by its Principal Secretary, MA & UD, Secretariat, Hyderabad 5, this Court considered the submissions made by learned counsel for the petitioner that there is no column in online application seeking permission for construction with regard to disclosure of litigation, that when a suit is filed by applicant himself, when there are no adverse orders against him, there is no need of disclosing the said litigation in the application etc., and held that whether there are any adverse orders against the applicant and the suit/litigation filed by the applicant, he has to necessarily disclose the same in the application seeking building permission under TS-bPASS. This Court further held that a pending civil suit or any litigation involving declaration of title or recovery of possession or grant of injunction over any property over which building permission is invariably linked to ownership or title. Such pending litigation disputing/questioning the title over the property 5 . W.P. No.16456 of 2021, decided on 17.01.2022 16 KL,J W.P. No.10419 of 2023 is a material fact which has to be mandatorily disclosed by the applicant who seeks building permission over such property. Such disclosure of pending suits is necessary for the authorities to determine 'prima facie' title and possession.
xviii) This Court also placed reliance on the principle laid down by a Division Bench of this Court in M/s. Fortuna Infrastructure India Pvt. Ltd. v. State of Telangana 6, wherein a Division Bench held that non-disclosure of pending litigation amounts to material representation under Section - 450 of the GHMC Act, 1955. The relevant paragraph Nos.27 to 29 of the said judgment are relevant and the same are extracted below:
"27. Under this provision, the Commissioner of GHMC has power to cancel any permission obtained for making building construction, if he is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement by the applicant for building permission.
28. No material is placed before this Court by the 7th respondent that he had disclosed to the Commissioner of GHMC about the litigation pending between it and the appellant i.e. E.A. No. 81 of 2008 in E.P. No. 37 of 2008 in O.S. No. 1402 of 1996 before the V Senior Civil Judge, City Civil Court, Hyderabad or that 6 . W.A. No.162 of 2021, decided on 24.08.2021 17 KL,J W.P. No.10419 of 2023 appellant had obtained registered sale deed dt. 17.11.2007 from the said Court through decree dt. 27.11.1996 in O.S. No. 1402 of 1996.
29. Had such information been disclosed, it is possible that the Commissioner might have rejected the application made for grant of Municipal permission to 7th respondent as there would be a serious doubt as to whether he had prima facie title to the subject property or not."
6. CONCLUSION:
i) Therefore, this Court is of the considered view that the vendor of the petitioner while submitting building permission application dated 30.10.2021 seeking building permission shall necessarily disclose about pendency of suit O.S. No.1034 of 2021 filed by her against respondent Nos.4 and 5 and another seeking perpetual injunction. She has not disclosed pendency of the said suit. Whether there are adverse orders against her and that she has filed the said suit against respondent Nos.4 and 5 and another seeking perpetual injunction, it is for the Zonal Commissioner, GHMC to consider the same while coming to a conclusion with regard to her prima facie tile and possession over the subject plots. Disclosure of suit is mandatory in terms of Section - 7 of the TS-bPASS Act, 2020. In the present case, the vendor of the petitioner failed to disclose the said fact to the Zonal Commissioner 18 KL,J W.P. No.10419 of 2023 while submitting building permit application dated 30.10.2021. Thus, on consideration of the said aspects only, vide impugned proceedings dated 10.04.2023, respondent No.2 revoked the building permit order dated 03.03.2022 obtained by the vendor of the petitioner.
ii) It is also relevant to note that while issuing impugned revocation order dated 10.04.2023, respondent No.2 has issued notices to the petitioner, his vendor and respondent Nos.4 and 5, heard them and considering all the facts only, passed the issued revocation proceedings dated 10.04.2023. There is no procedural irregularity or violation of principles of natural justice while passing the order dated 10.04.2023. Of course, it is not the case of the petitioner that the impugned proceedings dated 10.04.2023 of respondent No.2 is in violation of principles of natural justice and procedure laid down under the GHMC Act, 1955 or TS-bPASS Act, 2020. Therefore, the impugned revocation order dated 10.04.2023 passed by respondent No.2 is a reasoned and well-founded. The petitioner failed to make out any case to interfere with the said order. Therefore, the present writ petition fails and the same is liable to be dismissed.
iii) This Writ Petition is accordingly dismissed. However, liberty is granted to the petitioner to submit fresh application with GHMC under 19 KL,J W.P. No.10419 of 2023 TS-bPASS by disclosing the pendency of suit O.S. No.2112 of 2022 filed by him and others against respondent Nos.4 and 5 herein seeking perpetual injunction, and it is for the GHMC to consider the same in accordance with law. In the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 30th December, 2024 Mgr