Allowed

Smt. D. Aruna, v. The Commissioner

Telangana HC11 Mar 2011WP/5861/2005

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of a building plan for a plotted residential site within a Co-operative Housing Society. The Court found the rejection illegal as the actual open space on the ground exceeded statutory requirements, and the petitioners held a valid title to the extra land acquired years prior via registered sale deeds. The rejection order was set aside.

What did the court decide?

Impugned order rejecting the building permission application was set aside; respondents were directed to grant permission for construction over the plot including the extra land.

Smt. D. Aruna, Vs The Commissioner — Landlord and Tenant | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE N.V. RAMANA

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W.P. No. 5861 of 2005

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O r d e r:

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The petitioners have filed this writ petition praying to declare the action of the respondents in rejecting their application for grant of permission for construction of building in Plot No. 8-2-293/82/A/270-1, vide proceedings in Lr. No.293/82/A/270/1/2/8/2004, dated 09.11.2004, as arbitrary, illegal and violative of Article 21 of the Constitution of India and consequently to set aside the same.

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The petitioners state that the Government vide orders issued in G.O. Ms. No.147, Revenue Department, dated 31.01.1964, had assigned an extent of Acs.1,398.00 in Sy. Nos. 120/403-1 of Shaikpet village and Sy. No. 102/1 of Hakimpet village of Golconda Taluk, Hyderabad, to respondent No.3, namely the Jubilee Hills Co-operative House Building Society Ltd (hereinafter referred to as ‘the Society’). Pursuant to the allotment, respondent No.3 prepared a layout for 272 plots and submitted the same for approval to respondent No.1, namely the Commissioner, Municipal Corporation of Hyderabad, who vide proceedings dated 24.02.1997, approved and granted sanction to the layout. While so, the petitioners state that their father, namely Sri. T. Subba Rao, who was a member of the Society, was allotted Plot No. 270-I admeasuring 1191 Sq. yds., equivalent to 995.70 Sq. mtrs., in the said approved and sanctioned layout, and their father having paid the entire sale consideration, respondent No.3 executed registered sale deed dated 16.03.1979 in his favour.

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Pursuant to the allotment of the plot and execution of registered sale deed with regard thereto, the petitioners state that their father in the year 1980, obtained permission from respondent No.1 for construction of a residential house in the plot. As the maters stood thus, the Managing Committee of respondent No.3 in their meeting held on 29.09.1981 passed a resolution for allotment of extra land admeasuring 507 Sq. yds. equivalent to 423. Sq. mtrs., which is appurtenant to the existing plot, and in terms of the said resolution, respondent No.3 allotted the said extra land and executed a registered sale deed vide document No. 6219/82, dated 24.08.1982. By virtue of

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the said sale deeds, the petitioners state that their father became the absolute owner and possessor of Plot No. 270-I, in total admeasuring 1698 Sq. yds. The petitioners state that as per the registered sale deed dated 24.08.1982 and the sketch annexed thereto, to the northern side of Plot No.270-I, admeasuring 1698 Sq. yds., allotted to the petitioners father, there exists Plot No. 270-R.

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After the demise of their father, the petitioners state that they submitted application dated 01.11.2004 to respondent No.1, requesting him to grant building permission, and it is the case of the petitioners that respondent No.2, namely the Assistant City Planner, Town Planning Section, working in the office of respondent No.1, vide proceedings dated 09.11.2004, rejected the building permission on the ground that (1) as per the layout of Jubilee Hills Society, Plot No. 270-I does not cover the additional land of 423.00 Sq. mtrs. and; (2) they have to submit legal heir certificate from the MRO and that proposal for grant of permission for construction of building in Plot No. 270-I would be considered only in relation to an extent of 995.70 Sq. mtrs. as per the original approved layout. Questioning the said rejection order, the petitioners, as noted above, filed the present writ petition.

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The learned counsel for the petitioners submits that their father, namely late T. Subba Rao, who was member of respondent No.3, was allotted Plot No.270-I, and he having paid the entire sale consideration, respondent No.3 executed a sale deed in his favour on 16.03.1979. The said plot admeasured 1191 Sq. yds. Subsequently, pursuant to a resolution passed the Managing Committee of respondent No.3-Society, extra land, in an extent of 507 Sq. yds., situated appurtenant to Plot No. 270-I was allotted and upon paying the sale consideration thereof, respondent No.3 executed a registered sale deed dated 24.08.1982 in favour of the father of the petitioners. Thus the father of the petitioners was the owner and possessor of total extent of land 1698 Sq. yds. After his death, the petitioners who are his legal heirs, became the absolute owners and possessors of the plot, and so as to construct a residential house in the said plot, thee petitioners submitted application for grant of building permission for construction of a residential building in the total extent of the plot in question admeasuring 1698 Sq. yds., but respondent Nos. 1 and 2 committed a grave error in rejecting the same.

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The learned counsel for the petitioners further submitted that as on the date of purchase of Plot No. 270-I and the extra land

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appurtenant land i.e. in the years 1979 and 1982, the layout sanctioned on 24.02.1977 was in force, and that being so, respondent Nos. 1 and 2, are not justified in rejecting the building construction permission, placing reliance on the alleged final approved layout dated 15.06.1991, which is prepared in deviation of the original layout, much subsequent to the date of purchaser of plots and that too without issuing any notice to the purchasers of the plots.

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At any rate, he submitted that neither respondent Nos. 1 and 2 nor respondent No.3, could have changed the layout and prepare a final layout, in a manner affecting the rights of the petitioners or for that matter any member, much less without issuing any notice. He submitted that no notice whatsoever was issued by respondent Nos. 1 and 2 before preparing the final layout, which is not in tune with the layout, under which the petitioners father, was sold Plot No. 270-I by respondent No.3 as also the appurtenant extra land.

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He further submitted that while preparing and approving the alleged final layout in the year 1991, respondent Nos. 1 and 2 have not followed the procedure contemplated under A.P. Urban Areas Development Act, especially Sections 7 and 8 thereof. The earmarking of 40% area for common purposes in the layout has to be reckoned taking into consideration the entire area comprising in the layout and not by limiting it to certain blocks.

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He submitted that respondent Nos. 1 and 2 are disputing the title of the petitioners with respect to the extra land, based on the alleged final layout, which they cannot do. The learned counsel further contends that since according to respondent Nos. 1 and 2, as per the approved layout, the area earmarked for common purpose should be Ac. 0.356, and inasmuch as, on physical verification, as is evident from their own report, the area earmarked is found to be Ac. 0.43, which is more than the requirement, respondent Nos. 1 and 2 cannot take any objection to or reject the building permission, much less raise any title dispute with respect to the extra land sold by respondent No.3 to the petitioners father in the year 1982. Hence, rejection of the request of the petitioners for grant of building permission in the plot in question, the learned counsel for the petitioner submits is illegal and arbitrary. Because of the illegal action of respondent Nos. 1 and 2 in rejecting the building permission in the year 2004, the petitioners were prevented from making construction and now since the cost of construction has gone up manifold, the

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petitioners are burdened with huge financial inflation apart from causing severe hardship and mental agony. Hence, he prayed that the impugned order be set aside and respondent Nos. 1 and 2 be directed to grant building construction permission to the petitioners.

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Respondent Nos. 1 and 2 filed counter. The learned Standing Counsel appearing on their behalf, reiterating the counter averments submitted that the petitioners father was accorded permission for construction of ground floor in the plot in question vide permit No. 2/8 dated 10.11.1978 in File No. 239/Open/8/78. That neither the petitioners nor their father was entitled to occupy the extra land of 507 Sq. yds., nor respondent No.3 was entitled to covey the same in favour of the petitioners or their father. In fact, the petitioners father did not make any application for joining the extra land alleged to have purchased by him with the plot originally allotted to him, for construction of compound wall around it. She further submitted even though respondent No.3 brought to the notice of respondent Nos. 1 and 2 about the extra open area left by them by behind plots numbered in 270 series by oversight, by duly enclosing part of the layout in relation thereto, respondent

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Nos. 1 and 2 in spite of several request, did not produce the comprehensive layout of Jubilee Hills Society, for verification. She further contended that without the complete layout plan, the changes sought to be carried in the approved layout cannot be incorporated, and therefore, while granting permission for construction of residential buildings, they are going by the original layout submitted by respondent No.3 for approval, according to which, an extent of Ac. 0.356 is earmarked as open area, reserved for green belt. Since as per the original layout submitted by respondent No.3, the additional extent of 507 Sq. yds. which is equivalent to 423 Sq. mtrs., is not covered under Plot No. 270-I, and the same along with other land appertaining is shown as green area, respondent Nos. 1 and 2 refused to consider the request of the petitioners for grant of permission for construction of building in the total extent of 1698 Sq. yds., and accordingly by the impugned order, informed them that they would consider proposals for grant of building permission in respect of the original extent of land, as granted earlier, and not in respect of the extra extent of land, and no exception can be taken thereto.

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Respondent No.3 filed counter supporting the stand taken by the petitioners. The learned Standing Counsel appearing on behalf of

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respondent No.3 reiterating the counter averment submitted that they prepared the layout as per the norms fixed, and allotted the plots to their members. At the time of registration of the plots in the names of the allottees, the registration, in view of Urban Land (Ceiling and Regulation) Act, 1976, was restricted to 1,000 Sq.mtrs. to each individual, even though the land allotted to them was more than 1,000 Sq. mtrs. On the request made by respondent No.3, and considering the fact that the land was uneven, the Government vide orders issued in Memo No. 906/U.C.II/81-I, dated 27.04.1981, granted exemption from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, and therefore, respondent No.3 allotted and registered plots sized more than 1,000 Sq. mtrs. to each member subsequently. He submitted that even though land exceeding 1,000 Sq.mtrs. was allotted to some of the members, including the petitioners father, but as respondent Nos. 1 and 2 insisted for submission of revised layout, they have submitted the revised layout, showing the dimensions of the plots as 1,000 Sq.mtrs., even though the land allotted to the members was more than that. The petitioners have not encroached any land, much less the land earmarked for green belt behind their plots, and the land claimed by them, is as per the original allotment. He submitted that respondent No.3, towards 40% of the open space, earmarked an extent of Ac. 0.356 on the rear side of the plot Nos. 270-C to 270-H. He further submitted that earlier owners of Plot Nos. 270-C to 270-H complaining that respondent No. 1 was interfering with the possession of their plots on the ground that they encroached land earmarked for green area, filed writ petitions in W.P. Nos. 10004, 10005 and 10006 of 1995 and W.P. Nos. 1142, 1149, 1150 and 1175 of 2003, questioning the show cause notices, and though this Court, by order dated 06.06.2005, directed respondent No. 1 conduct survey and if it is found that the area earmarked for park falls short of Ac. 0.356 to take action in consultation with the society, no action thereon had been taken to conduct the survey.

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Heard the learned counsel for the petitioners, the learned Standing Counsel for respondent Nos. 1 and 2-GHMC and the learned Standing Counsel for respondent No.3-Society.

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The petitioners father, namely Sri. T. Subba Rao, who was a member of the Society, was allotted Plot No. 270-I admeasuring 1191 Sq. yds., equivalent to 995.70 Sq. mtrs., by respondent No.3, in the said approved and sanctioned layout. Upon allotment, the petitioners

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father paid the entire sale consideration, and respondent No.3 on 16.03.1979 executed a registered sale deed in his favour. Pursuant to a resolution dated 29.09.1981, passed by the Managing Committee of the Society, respondent No.3 allotted extra extent of land admeasuring 507 Sq.yds., which is equivalent to 423 Sq. mtrs., to the petitioners father, and he having paid the sale consideration in relation thereto, respondent No.3 executed registered sale deed dated 24.08.1982. Thus, the petitioners father and subsequent to his demise, the petitioners became owners of land in an extent of 1,698 Sq. yds., which is equivalent to 1,418.17 Sq.mtrs.

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Respondent No.3 in their counter have taken a stand that even though they have allotted plots sized more than 1,000 Sq. mtrs., but in view of Urban Land (Ceiling and Regulation) Act, 1976, at the time of initial registration, they have restricted it to 1,000 Sq.mtrs., and that after getting exemption, they have allotted the extra land to the father and others, which is situated behind their plots. That as per the approved layout they have earmarked an extent of Ac. 0.356 towards green area. Respondent No.3, as is evident from the counter filed by them, brought the factum of allotment of extra land to the petitioners father and others to the notice of respondent Nos. 1 and 2, and even though respondent Nos. 1 and 2 did not dispute this fact, they have taken a stand that respondent No.3 did not produce the comprehensive layout for verification as to whether an extent of Ac. 0.356 earmarked for green belt, exists on the ground.

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Thus from the stand taken by respondent No.3, it becomes clear that the petitioners father and others, were allotted extra land. While so, when respondent No. 1 and 2 tried to interfere with their possession, some of the plot owners, allotted under Plot Nos. 270-C to 270-H, who were allotted extra land, filed writ petitions in W.P. Nos. 10004 to 10005 of 1995 and 1142, 1149, 1150 and 1175 of 2003, and considering the fact that prior to Urban Land (Ceiling and Regulation) Act, 1976, the land left as open space behind plots under 270 series was Acs. 0.356, and that after seeking exemption from the Government, respondent No.3 submitted revised layout for approval, whereunder each member was shown to have been allotted over and above thee ceiling limit of 1,000 Sq,mtrs., and having regard to the stand taken by GHMC that by virtue of construction of compound walls by the owners of 270 series plot owners, the open area was reduced to Ac. 015, this Court by order dated 17.07.2003, disposed of the said

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batch of writ petitions, as follows:

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After perusing the counter affidavit and letter dated 18.01.2003 addressed by the Society, and also perusing the Map annexed to thee letter, I am convinced that the controversy whether petitioners have encroached upon open land and thereby reducing it to Acs. 0.15 can be sorted out by Chief City Planner by measuring the area earmarked for park behind plot Nos. 270-C to 270-H as per revised layout. The submission that in the revised approved layout, the area in question was inadvertently shown as Ac. 0.15 has not been denied by MCH. Actual area left for park can be found out by conducting survey by the Chief City Planner in the presence of Personin-Charge of the Society and also giving notice to all the members herein. If it is found that the area earmarked for park falls short of Ac. 0.356, necessary action may be taken by MCH in consultation with the Society. In case the petitioners have encroached upon park area over and above the area allotted and registered in their favour by the Society, it is open to the MCH to take necessary action against them in accordance with law after issuing notice. The exercise may be completed by respondent Nos. 1 and 2 within a period of eight weeks from the date of receipt of a copy of the order.

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The above order attained finality, as no appeal was filed by respondent No. 1. From the above order, it is clear that respondent No.3 is said to have inadvertently shown the area earmarked for open space as Ac. 0.15, which was not denied by respondent No.1, and according to respondent No.3 and respondent Nos. 1 and 2, the area earmarked for open space should be Ac. 0.356. It is the case of respondent No.3 that even though pursuant to the above order, they have requested respondent No. 1 to conduct survey, as is evident from the letters addressed by them, which are placed before this Court, no steps were taken by respondent No.1 to conduct survey, and the only justification sought to be taken by respondent No.1 is that respondent No.3 has not produced the comprehensive layout.

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Be that as it may, during the course of hearing, when this Court asked the learned Standing Counsel for respondent Nos. 1 and 2, whether survey as directed by this Court, in the above batch of writ petitions was conducted, did the Chief City Planner, GHMC, conducted the survey and submitted his report. Though in his report, he has taken a stand that in spite of several reminders, respondent No.3 did not produce the revised layout tallying with the ground position, and instead requested them to change the dimensions of the plots, and that unless and until the revised comprehensive layout is submitted by respondent No.3, the change in the dimensions of the plots cannot be considered, the fact remains, as per the sketch prepared by him with respect to the disputed land, which is annexed to his report, the open land earmarked behind 270 series plots is Ac. 0.43, which is far in excess than the land earmarked in the original

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layout, which is Ac. 0.356. In fact, this Court earlier, in the writ petition filed by similarly placed plot owners, as noted above, directed respondent No.1 to survey the land and if it is found that the land earmarked for green belt falls short of Ac. 0.356, then take action in accordance with law, for recovery of the encroached land. But inasmuch as on survey being conducted, the land earmarked for green belt, is found to be more than what has been earmarked, I fail to understand how respondent Nos. 1 and 2 can reject the request of the petitioners for grant of building permission on ground that the open area left behind the plots numbered with 270 series, got reduced to Ac. 0.15.

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Be that as it may, even assuming that respondent No.3 has altered or changed the layout in the year 1991, the same per se, cannot deprive the rights of the petitioners father or similarly placed persons, over the land purchased by them, which they purchased during thee year 1979 and 1982, and at any rate, respondent Nos. 1 and 2 cannot treat the petitioners as encroachers of extra land, particularly when on the ground there is no encroachment according to their own report, and the claim of the petitioners father over the extra land, is based on a valid sale deed executed by respondent No.3 in his favour, which they executed after receiving the sale consideration. That being so, and there being no encroachment made by the petitioners of the open land, and the land available on ground, earmarked for open space, being far excess than that has been earmarked, and respondent Nos. 1 and 2 having not disputed the purchase of extra land by the petitioners father, which was even brought to their notice even by respondent No.3, I am of thee considered opinion that respondent Nos. 1 and 2 were not justified in rejecting the application of the petitioners for grant of permission for construction of a residential building in the plot in question, including the extra land purchased by the petitioners, much less are entitled to raise title of the petitioners to the said land.

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As can be seen from the impugned order, respondent Nos. 1 and 2 while rejecting the application of the petitioners for grant of building permission, have merely mentioned that Plot No. 270-I does not consist of additional land of 423 Sq. mts., as per the approved layout of the society. However, respondent Nos. 1 and 2 in the counter have tried to improve their stand contending that the area earmarked as green area in the layout is not physically matching with that shown

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in the layout, though on ground, the green area exists much more than the requirement. It is well settled that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

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In the above view of the matter, the impugned order passed by respondent Nos. 1 and 2 rejecting the application of the petitioners for grant of building permission over the plot in question, including the excess land cannot be sustained, and the same is accordingly set aside. Consequently, respondent Nos. 1 and 2 are directed to grant permission for construction of building over the plot in question, including the extra land, provided the petitioners satisfy all other statutory requirements governing the grant of building permission. Accordingly, the writ petition is allowed. No costs.

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___________________ N.V. RAMANA, J.

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Dated: 11^th March, 2011 KSR

Smt. D. Aruna, v. The Commissioner

Case brief

What is this about?

What did the court decide?

Smt. D. Aruna, v. The Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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