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Nimmala Samanita v/s The State of Telangana, M.A. & UD Department, rep. by its Principal Secretary, Hyderabad & Others

    Writ Petition No. 99 of 2022
    Decided On, 24 March 2022
    At, High Court of for the State of Telangana
    By, THE HONOURABLE MRS. JUSTICE LALITHA KANNEGANTI
    For the Petitioner: V.V.N. Narayana Rao, Advocate. For the Respondents: R1, Government Pleader for Municipal Administration and Urban Development, R2, Sampath Prabhakar Reddy, SC, R3, G. Vasudevudu, Advocate.


Judgment Text
This writ petition is filed questioning the action of respondent No.2 in not considering the representation dated 09.12.2021 made by petitioner for cancelling the building permission accorded in favour of respondent No.3 vide File No.1/C21/15513/2019, dated 31.03.2021 in accordance with Section 450 of GHMC Act, 1955, as illegal and arbitrary.

2. Heard learned counsel for the petitioner Mr.V.V.N.Narayana Rao, learned Government Pleader for Municipal Administration and Urban Development for respondent No.1, learned Standing Counsel for respondent No.2 Mr. Sampath Prabhakar Reddy and learned counsel for respondent No.3 Mr. G. Vasudevudu.

3. The case of petitioner is that her great grandfather was the original pattadar and possessor of the land to an extent of Ac.21.27 gts in Sy.Nos.54 and 56 situated at Hafeezpet Village, Serilingampalli Mandal, Ranga Reddy District, and after his death, the properties were partitioned, and in the partition, the lands located in Sy.No.54/2(old Sy.No.54) to an extent of Ac.1.37 gts and SY.Nos.54 and 56 to an extent of Ac.3.22 gts, total admeasuring Ac.5.19 gts each, were allotted to her grandfather and pattadar passbooks and title deeds were issued in his favour and he died leaving behind his son and two daughters. It is stated that after the death of her father, the petitioner and his mother have succeeded to the property, and thereafter, her mother died on 10.05.2021 and while performing her last rites, she came to know that one Sri G.K.Reddy had played fraud on her father and other family members and executed registered release deed vide document No.73 of 2008 dated 03.01.2008 in his favour and she came to know that there were some differences among their family members and the said release deed was cancelled through registered cancellation deed dated 30.06.2008. It is stated that assailing the correctness of the same, Sri G.K.Reddy has filed W.P.No.19018 of 2008 and the same is pending for adjudication and after attaining majority, the petitioner also filed W.P.No.31304 of 2021 for cancellation of release deed dated 03.01.2008. It is further stated that she came to know that her family members have jointly sold Ac.14.00 gts in Sy.No.54 in favour of Matrusri Cooperative Housing Building Society and the said society had obtained layout from the then HUDA vide permit No.2209/MP2/HUDA/90 and allotted the plots to its members. It is stated that respondent No.3 had purchased the land in Plot Nos.763, 763/1, 763/2/Part, 763/2, 763/3, 763/4, 763/5 and 763/6 to an extent of 409, 392, 60, 300, 450, 718, 334 and 180 sq. yards respectively, total admeasuring 2843 sq. yards, situated at Sy.No.54, Hafeezpet Village, Sherilingampalli Mandal through registered sale deed dated 28.02.2019 from B. Suresh Babu and others, who have created documents in their favour. It is stated that there is no by numbers for Plot No.763, which is existing as per the approved layout with an extent of 409 sq. yards only. It is further stated that basing on the said sale deed, respondent No.3 had encroached into the petitioner’s land, created sale deeds and obtained building permit from respondent No.2. and under the guise of said permit, respondent No.3 is undertaking construction activity in the land of petitioner and after she came to know the same, she got issued a legal notice to respondent No.3 to stop the construction, for which respondent No.3 has given evasive reply and therefore, the petitioner has filed a representation dated 09.12.2021 to respondent No.2 to conduct enquiry and cancel the building permit issued in favour of respondent No.3, but respondent No.2 has failed to take any action and hence, she is constrained to approach this Court.

4. Learned counsel for the petitioner submits that taking into consideration the relevant facts, a duty caste upon the Commissioner to consider the representation of petitioner, but he failed to do so and hence, there may be a direction to the respondents to consider her representation. Learned counsel has relied upon the judgments of this Court in Sweety Builders Private Limited v. Municipal Corporation of Hyderabad and others (1999(4) ALD 3); N. Amit Reddy and another v. Greater Hyderabad Municipal Corporation and others (2020(6) ALD 321 (TS); Church of South India Trust Association and others v. Greater Hyderabad Municipal Corporation, Hyderabad and others (2010(1) ALD 561); and also relied on the judgment of the Apex Court in Suresh Jindal v. BSES Rajdhani Power Limited and others (2008) 1 SCC 341). Relying on the said judgments, learned counsel for the petitioner submits that while deciding the said application under Section 450 of GHMC Act, the Commissioner is obligated to consider the representation filed for cancellation of a permit granted in favour of the unofficial respondent and he can independently go to the question of title and hence, non-consideration of the representation is bad in law.

5. Learned Standing Counsel for respondent No.2 has filed counter-affidavit on behalf of the Deputy Commissioner, GHMC, Hyderabad, and stated that upon receipt of the representation from the petitioner, the respondent Corporation has verified and found that the construction made is in accordance with the sanction plan and there is no illegality as alleged by petitioner. It is stated that a bare perusal of the entire writ affidavit clearly reveals that there is a dispute between the petitioner and the unofficial respondent No.3, and the petitioner, with a malafide intention filed this writ petition to settle their scores by making false and baseless allegations against the respondent Corporation. He submits that the petitioner has to approach the civil Court for redressal of the disputes between the parties. Learned Standing Counsel further submits that the relief sought for by petitioner by way of a representation is beyond the jurisdiction of the respondents and they cannot go into the question of title and hence, the petitioner is not entitled for any relief.

6. Respondent No.3 filed counter affidavit stating that he has submitted an application before respondent No.2 for grant of building permission and vide order dated 31.03.2021, respondent No.2 has granted building permission for construction of one cellar + 5 upper floors and as per the sanction plan, he is proceeding with the construction of the building. It is stated that the petitioner has made a representation under Section 450 of GHMC Act to respondent No.2 to cancel the building permit, but either in the said representation or in the affidavit, she did not produce any document to show her title over the adjacent land of respondent No.3 nor stated what is the material misrepresentation or what is the fraudulent statement alleged to have been made by respondent No.3 while obtaining the building permit. The representation of petitioner does not constitute the ingredients under Section 450 of GHMC Act and hence, there is no obligation on behalf of respondent No.2 to consider the said representation and for the said relief, this writ petition is not maintainable.

7. Having heard the learned counsel on either side, perused the material on record. The specific case of the petitioner is that she is the absolute owner of the subject property and one B. Suresh Babu, who is the vendor of petitioner and others have created a fabricated documents and sold the property in favour of respondent No.3 through registered sale deed dated 28.02.2019 vide document No.3521 of 2019 and basing on the said document, respondent No.3 has made an application for building permission and the same was granted. Now, a representation is filed by petitioner stating that her vendor had fabricated the documents and in turn, he sold the properties to respondent No.3, who has no right over the property and suppressing the said facts, he has obtained permission and going ahead with the construction, as such the said permission has to be cancelled. In this regard, the petitioner has made a representation to the respondent No.2, but they have failed to consider the same and hence, she is constrained to approach this Court.

8. Learned counsel for the petitioner has relied on the judgment of this Court in Church of South India Trust Association’s case (3 supra), wherein it was held as under;

“It is true that under Section 450 of the Hyderabad Municipal Corporation Act, the 1st respondent is under obligation to verify the title of an applicant, over the land upon which, construction is proposed to be made. However, the nature of verification cannot be similar to the one, in a suit for declaration of title. Much would depend upon the nature of property, as well as the nature of rights claimed by the applicant. If it is a private property, and title is claimed by an individual, the Corporation can insist on production of the title deeds. Here again, if the ancestral property has devolved upon an individual, by way of succession, or in a family partition, or a settlement, the nature of verification would be some-what different”.

He submits that respondent No.2 is under an obligation to consider the representation of the petitioner. He also relied on the judgment of this Court in N. Amit Reddy’s case (2 supra), wherein it was held as under;

“In terms of Section 450 of the Act, once building permission was granted in favour of an individual, before cancellation of the same, the ground under which an order could be passed under Section 450 of the Act is such permission was obtained on account any material misrepresentation or fraudulent statement of information furnished under Section 428 or 433 of the Act. It is implicit under Section 450 of the Act that conclusion be arrived at by the Commissioner with respect to the permission obtained by an individual by way of either misrepresentation or fraudulent statement. Without arriving at such definite conclusion, which can only be done after the enquiry is conducted, no final orders may be passed”

Learned counsel has also relied upon the decision of this Court in Sweety Builders Pvt Ltd.’s case (1 supra), wherein it was held as under;

“Therefore, nothing prevented the Municipal Corporation of Hyderabad, 1st respondent to dispose of the representation of the petitioner. Justice requires that when a citizen approaches appropriate authority for redressal and makes representation, minimum that can be done by the officers and authorities, is to consider the application accordingly and pass appropriate orders. The constitution confers such a right on all the citizens. The rule of law also requires that the citizens should know where they stand with regard to acquiring and enjoying their rights both personal and proprietary rights”.

9. By relying on the said judgments, learned counsel for the petitioner submits that whenever any representation is made, the authorities are obligated to dispose of the said representation. Relying on the judgment of the Apex Court in Suresh Jindal’s case (4 supra), learned counsel for the petitioner submits that under the General Clauses Act, a statutory authority while exercising statutory power may do all things which are necessary to giving effect thereto. In the said judgment, the Apex Court held as under;

“Section 20 operates in one field, namely, conferring a power of entry on the licensee. The said provision empowers the licensee inter alia to alter a meter which would include replacement of a meter. It is an independent general provision. In absence of any statutory provision, we do not see any reason to put a restrictive meaning thereto. Even under the General Clauses Act, a statutory authority while exercising statutory power may do all things which are necessary for giving effect thereto. There does not exist any provision in any of the statutes referred to hereinbefore which precludes or prohibits the licensee to replace one set of meter by another. If such a provision is read into the statute, the same would come in the way of giving effect to the benefits of new technological development. Creative interpretation of the provisions of the statute demands that with the advance in science and technology, the Court should read the provisions of a statute in such a manner so as to give effect thereto”.

Learned counsel for the petitioner also submits that while deciding the application under Section 450 of GHMC Act, the Commissioner can incidentally go into the question of title.

10. This Court, prima facie, is not convinced with any of the arguments advanced by the learned counsel for the petitioner, particularly, with regard to the submission that the Commissioner can go into the question of title incidentally and decide the dispute between the parties. In fact, the respondents can only look into the prima facie title and by looking at the prima facie title, they have granted permission in favour of the respondent. All these questions as to whether the vendor of petitioner has title to the property or respondent No.3 and basing on such title, whether the respondents can issue building permission to respondent No.3, have to be looked into by the Municipal Commissioner while sanctioning the plan, is nothing but converting the municipal office into the civil Court and this will undoubtedly gives rise to several complications and litigations between the parties. However, the contention of learned counsel for the petitioner is that when he filed an application under Section 450 of GHMC Act, the authorities are bound to consider the same and in the judgments relied on by petitioner, the Courts have discussed about the scope of enquiry under Section 450 of the GHMC Act. When a writ petition is filed before this Court seeking a direction to the respondents to dispose of the representation, this Court cannot act like a Post Office and direct the authorities to consider all the representations that are made and consequently, it gives rise to another set of litigation. In this case, when the petitioner filed a writ petition, this Court has to examine whether the representation, which is filed before the respondents, can be disposed of by them and whether they have such authority/jurisdiction to do it. The entire dispute between the parties is purely civil in nature and the title of the property is in dispute and undoubtedly, the Commissioner has no jurisdiction to go into those issues and even the Honourable Apex Court has time and again has deprecated the practice of High Courts in passing the orders for disposal of the representations. It was also observed that disposal of the representation mantra is increasingly permenting the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do not service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred

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attendant costs and suffered delays of the legal process. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. C. Jacob vs. Director of Geology and Mining and another (2008) 10 SCC 115). 11. In the facts and circumstances, this Court is not inclined to direct the respondents to dispose of the representation of petitioner, which is in a way directing the respondents to decide the title. Hence, the Writ Petition is dismissed. No order as to costs. 12. Miscellaneous petitions, if any pending in this writ petition shall stand dismissed.
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