Disposed

Mohd. Kazam Ali Khan, v. The Comissioner and Special Officer

Telangana HC5 Oct 2010WP/15183/2010

Case brief

AI extract

What is this about?

Justice G. Rohini held that disputed questions of fact regarding the issuance of a building permit and alleged illegal constructions cannot be settled under writ jurisdiction. The court directed the Municipal Corporation to conduct an administrative inquiry and dispose of the matter within six weeks.

What did the court decide?

Direction to Respondents 1 and 2 to consider petitioner's representations, hold an inquiry under Section 450 of GHMC Act 1955, and pass appropriate orders within six weeks.

Mohd. Kazam Ali Khan, Vs The Comissioner and Special… — Property and Title | Telangana HC (2010)

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THE HON'BLE Ms. JUSTICE G.ROHINI

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WRIT PETITION No. 15183 of 2010

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Dated: 05.10.2010

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Between :

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1. Mohd. Kazam Ali Khan and 15 others. … Petitioners

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And

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1. The Commissioner and Special Officer, Greater Hyderabad Municipal Corporation Hyderabad and 5 others. .. Respondents

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THE HON'BLE Ms. JUSTICE G.ROHINI

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WRIT PETITION No. 15183 of 2010

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O R D E R :

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This writ petition is filed seeking a declaration that the Building Permit dated 24.12.2008 granted by the respondents 1 and 2 for construction in the premises bearing House Nos.8-3-322/4 and 8-3322/3 situated in Sy.Nos.10 and 11 of Yellareddyguda, Ameerpet X- Roads, Hyderabad is arbitrary and illegal, and for a consequential direction to the respondents to demolish the structures raised in the said premises.

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It is pleaded that the premises bearing Nos. 8-3-322/4 and 8-3-322/3 situated in Sy.Nos.10 and 11 of Yellareddyguda, Ameerpet X-Roads, Hyderabad originally belonged to one Mohd. Farooq Ali Khan. He executed a Registered Sale Deed, dated 2.7.1947 in favour of his wife Smt. Aktarunnisa Begum. She died on 31.10.1984 and the petitioners herein claim title to the property in question through Smt. Aktharunnisa Begum. It is pleaded that the petitioners had entered into a Development Agreement dated 18.12.2002, registered as Document No.593 of 2003, dated 21.2.2003, with the 3^rd respondent partnership firm in

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respect of the premises bearing No.8-3-322/4. Alleging that the contents of the said document were interpolated by the 3^rd respondent and the document was altered into a Development Agreement-cumGeneral Power of Attorney, the petitioners got the Document No.593/2003 cancelled vide Document No.841/2003, dated 15.7.2003. Subsequently the petitioners entered into another Development Agreement-cum-General Power of Attorney, dated 31.7.2005 with the 3^rd respondent to develop the properties bearing Nos.8-3-322/3 and 8-3-322/4 part with the 3^rd respondent and the said document was registered as Document No.3663/2005. It is claimed that under the said document, the developer/3^rd respondent herein was permitted to make the construction on Southern side of the schedule property over an extent of 300 sq. yards, Northern side of the schedule property to an extent of 700 sq. yards from the ground level and that it was agreed by both the parties to keep open 30 feet common private passage for the mosque situated in part of 8-3-322/4 and 8-3-322/2. The 3^rd respondent was also permitted to use the same as set back area for the complex under construction on Southern side of 8-3-322/3 and part of 8-3-322/4. It is alleged that the respondents 3, 4 and 5 while making construction encroached upon the said passage clearly shown in the plan attached to the Development Agreement dated 31.7.2005 which resulted in blocking ingress and egress to the property bearing No.8-3-322/4 apart from depriving access to the general public to reach the mosque to offer prayers.

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It is also alleged that the 3^rd respondent obtained the Building Permit dated 24.12.2008 illegally suppressing the terms and conditions agreed under the Development Agreement dated 31.7.2005. Thus, according to the petitioners, the construction being made in the premises bearing No.8-3-322/3 is unauthorized and illegal since the Building Permit dated 24.12.2008 did not cover the said property.

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It is stated that the petitioners made representations dated 17.4.2010 and 11.5.2010 requesting the 1^st respondent herein to stop the illegal constructions being made by the respondents 3 to 6. Alleging that the 1^st respondent failed to take any action, this writ petition is filed. It is also contended that by virtue of cancellation of the registered Document No.593/2003, the 3^rd respondent is not entitled to make any construction over a part of the premises No.8-3-322/4 and therefore the Building Permit dated 24.12.2008 permitting the 3^rd respondent to carry on construction in the said property is illegal and the constructions already made are liable to be demolished.

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In the counter affidavit filed on behalf of the respondents 1 and 2 it is stated that the 3^rd respondent made an application for grant of building permission for construction of sub-cellar, cellar, ground + 10 upper floors for a hotel building at premises No.8-3-322/3/1 to 12, 8-3322/4 and 8-3-322/3A to E. Having examined the same, the MSBR committee recommended for grant of building permission subject to certain conditions. The 3^rd respondent had complied with the said conditions and thereupon the permission was granted vide Permit No.167/40 dated 24.12.2008. It is further stated that along with their application, the 3^rd respondent filed development agreement including the document bearing No.593/03 dated 24.12.2002 for an extent of 5853.26 square meters. As per the Development Agreement bearing document No.593 of 2003, the petitioners had handed over the total extent of area admeasuring 3020.99 square meters in respect of premises bearing No.8-3-322/4. The respondents 1 and 2 came to know about the cancellation of vide document bearing No.841 of 2003, dated 15.03.2003 only after receiving the petitioner’s representation dated 10.05.2010. It is further stated that the respondent-Corporation would examine the representation made by the petitioners and appropriate action would be taken under the provisions of the GHMC Act. It is further stated that the builder has laid slabs for sub-cellar,

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cellar and ground + 2 upper floors and the further work is under progress.

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In the counter affidavit filed on behalf of the 3^rd respondent, while denying the allegations made in the writ petition, it is stated that the petitioners and the other sharers had given the properties forming part of Sy.No.10 and 11 for development under various registered Development Agreements. The original owner of the property was one late Aktherunnissa Begum, the paternal grand- mother of the deponent of the writ affidavit. The entire land over which old and dilapidated structures were existing was given on development. It is specifically pleaded that much prior to the execution of the development agreement dated 18.12.2002, the petitioners had executed another development agreement dated 31.05.2000 bearing document No.1604/2000 in respect of the very same property in the very same survey numbers originally owned by late Mrs. Aktherunnissa Begum. The allegation of tampering of document No.593/2003 has been denied. It is also pleaded that respondents 3 to 6 were not aware of the execution of subsequent instrument bearing document No.841/2003 dated 15.03.2003. At any rate, the said cancellation being unilateral and without notice to the respondents was neither valid nor binding. It is also contended that the petitioners and other legal heirs of late Aktherunnissa Begum had entered into as may as 9 registered development agreements with 3^rd respondent in respect of the property forming part of Sy.Nos.10 and 11. There is no illegality on the part of the respondents either in obtaining permission for construction vide memo No.167/40 dated 24.12.2008 or in proceeding with the construction in accordance with the sanctioned plan. It is further stated that at the time of execution of development agreements some old structures were existing on the land. After permission was obtained, all the old structures were pulled down for taking up construction and as such, the entire land became one piece. It is also explained that the enquiry permission for construction was

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obtained vide Permit No.78/2 dated 07.05.2004 for an extent of 5811 square yards out of the total extent of 13467 square yards. The revised permission was obtained vide permit No.167/40 dated 24.12.2008 for a total extent of 8400 square yards. Initially, 30 feet wide passage was agreed by the parties to be left for ingress and aggress for Masjid. By mutual understanding, the passage was shifted to the present location in order to make it exclusive passage for the worshippers who come to the Mosque for prayers. The said passage is being used unrestrictedly and unobstructed by not only the petitioners, but also the general public. When the petitioners and others started obstruction with construction activity, the 3^rd respondent filed O.S.No.263 of 2010 on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad in which by order dated 28.05.2010 in I.A.No.1689 of 2010 injunction was granted against the petitioners.

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I have heard the learned counsel for both the parties and perused the material available on record.

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As noticed above, the allegations made by the petitioners that the Building Permit, dated 24.12.2008 was obtained by the respondents 3 to 6 suppressing the terms agreed upon in the Development Agreement dated 31.7.2005 as well as the allegation that the respondents 3 to 6 made constructions illegally blocking passage leading to mosque have been specifically denied by the 3^rd respondent. Such a disputed question of fact cannot be enquired into by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. Moreover as the representations made by the petitioners complaining about the alleged illegal constructions made by the respondents 3 to 6 are yet to be considered by the respondent No.1, it is neither proper nor necessary for this Court to go into the merits of the case. It is also relevant to note that Section 450 of GHMC Act, 1955 empowers the 1^st respondent to make the necessary enquiry into the allegation that the building permission was obtained in consequence of any material misrepresentation by the applicant.

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Viewed from any angle, it is for the respondent No.1 to look into the grievance of the petitioners as mentioned in their representations dated 17.4.2010 an 11.5.2010 and take appropriate action in accordance with law.

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Accordingly, without expressing any opinion as to the correctness of any of the allegations made by the petitioners, the Writ Petition is disposed of with a direction to the respondents 1 and 2 to consider the representations made by the petitioners dated 17.4.2010 and 11.5.2010 and pass appropriate orders in accordance with law after giving an opportunity to the respondents 3 to 6 to explain the allegations made by the petitioners and after making necessary enquiry giving an opportunity of personal hearing to both the parties. Such exercise shall be completed as expeditiously as possible preferably within a period of six weeks from the date of receipt of this order.

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Writ Petition is accordingly disposed of. No costs.

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_____________ G. ROHINI, J. Dt. 05.10.2010 gbs

Mohd. Kazam Ali Khan, v. The Comissioner and Special Officer

Case brief

What is this about?

What did the court decide?

Mohd. Kazam Ali Khan, v. The Comissioner and Special Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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