Allowed

Smt. Maniza Jumabhoy, v. Karim Nawaz Alladin

Telangana HC7 Feb 2022WA/254/2021

Case brief

AI extract

What is this about?

This writ appeal challenged the High Court single judge's order granting building permission to a respondent despite a pending partition suit. The two-judge bench affirmed the lower court, holding that commissioners lack jurisdiction to decide title disputes and that dilapidated conditions justify permission via the existing civil suit.

What did the court decide?

The High Court single judge order upholding the grant of building permission was upheld; respondents directed not to take coercive steps.

Smt. Maniza Jumabhoy, Vs Karim Nawaz Alladin — Property and Title | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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IUONDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA AND

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THE HONOURAB\E SRI JUSTICE ABHTNAND KUMAR SHAVIL|

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WRIT APPEAL NO: 254 OF 2021

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Writ Appeal under clause 15 of the Letters Patent Preferred Against the Order Dated 2310412021 Passed in W P Ng 6498 of 2021 on the file of the High Court.

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Between:

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Smt. Maniza Jumabhoy,, W/o. Sri lqbal Jumabhoy, aged about 61^years, Occupation. Household, R/o. No.53, Hollarld Park, Singapore - 249493.

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...APPELLANT/7th RESPONDENT

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AND

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1 Karim Nawaz Alladin, Q/o. Sri lqbal Alladin, aged about 49^years, Occupation. Business, F/o. 8-2-584, Road No.9, Banjara Hills, Hyderabad^- 500 034.

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....RESPONDENTrvvRIT PETITIONER

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The State of Telanganq, rep. by its Principal Secretary, It/unicipal Administration Department, Secretariat, Hyderabad.

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The Greater Hyderaba( Municipal Corporation, Represented by^its Commissioner, CC Corhplex, Tank Bund Road, Hyderabad.

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fheZonal CommissionBr, Greater Hyderabad Municipal Corporation, Khairtabad, Hyderabad.

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The Deputy Commissioper, Greater Hyderabad Municipal Corporation,^Circle No.'18, Jubilee Hills, Hyilerabad.

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The Chief City Planner, Greater Hyderabad Municipal^{Corporation,CC Complex,} Tank Bund Road, Hyderabad

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The Assistant City Planper, Greater Hyderabad lvlunicipal Corporation,^Circle No.18, Jubilee Hills, Hyderabad.

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...RESPONDENTS/RESPONDENTS 1 tO 6

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lA NO:^'l OF 2021

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Petition under Section 151 CPC^praying that^{in the circumstancesstated in} the affidavit filed in supporl of the^{petition,the High Court may be pleasedto} condone the delay of 26 days in filing^{the present writ appeal against the orders} passed in W.P.No.6498 of 20?1 , dated 23.04.2021^.

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lA NO: 2 OF 2021

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Petition under Section 151 CPC^{prayingthat in the circumstancesstated in} the affidavit filed in support of the^{petition,the High Court may be pleasedto} suspend the operation and effect of the^{order passed in W.P.No.6498 of 2021} '^daled 23.04.2021, pending disposal of the writ appeal.

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*-G..aLaa

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lA NO: 3 OF 2021

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Petition under Sectlon 151 CPC praying that in the circumstances stated in the affidavit filed in support of the^petition, the High Court may be^pleased to direct the 1st respondent not to make any illegal constructions/alternation s/repa irs to the premises bearing No.8-2-584, Road No.9, Banjara Hills, Hyderabad, pending disposal of the writ appeal.

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Counsel for the Appellant : SRI.S.RAM REDDY

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Counsel for the Respondent No.1 : SRI.PRABHAKAR SRIPADA

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Counsel for the Respondent No.2 :

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G,P FOR MUNICIPAL ADMNISTRATION AND URBAN DEVELOPMENT

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Counsel for the Respondent Nos.3 to 7 : SRI.PASHAM KRISHNA REDDY

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The Court made the following ORDER

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THE HON'BLE

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CHIEF JUSTICE SATISH CHANDRA SHARMA AND

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THE HON' SRI JUSTICE ABHINAND KUMAR SHAVILI

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YRIT^{APPEAL No.254of2O21}

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JUDGMENT: eer the Han ble the Chief JustiLe Satish Chandra Sharma)

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The present t appeal is arising out of common order dated 23.04.2027 passed W.P.Nos.19276 of 2O2O and 6498 of 2O2t by the learned Single J dge.

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The undisput d facts of the case reveal that the present appellant, Smt. M iza Jumabhoy, who is residing in Singapore, has filed the writ etition i.e., W.P.No.19276 of 2020 seeking a direction to the au horities of ttre Greater Hyderabad Municipal Corporation (GHM )^todemolish the alleged iilegal and unauthorised const uction, r.hich was being done by respondent No.1 herein, Karim awaz Al1adin. There was another writ petition i.e., W.P.No.6498 of 02 1 filed by Karim Nawaz Alladin, respondent No.l in the writ ap eal, challenging the order dated 19.02.2021 passed by GHMC ecting his application for grant of building permlsslon.

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The facts of e case reveal that the present appellant and respondent No.1, K im Nawaz A11adin, are real sister and brother. A partition suit i.e., .S.No.13 of 2OO7 was pending betin'een them before the II Additio ai Chief Judge, City Civil Court, Hyderabad, and the subject m tter of the writ appeal is a-1so one of the properties, which e the subject matter of the partitieq suit. Respondent No.1 he ein, Karim Nau'az Alladin, made an application

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orL O1.O2.2O21^{for grant of buildingpermissionon the groundthat} the house^{in which he is riving is in dilapidatedcondition and there} isanimmensethreatofcollapsingdownofthestructureatany point of time^{and the same was rejected by order dated19 'O2'2O27'} Against the^{said order, a writ petitionwas preferred i'e''} w.P.No.6498of2021byKarimNawazAliadin,respondentNo.l. The sister,^{who is the appellant' came up with anotherwrit petition} that his brother^{is constructing i1legally' The learnedSingle Judge} has decided^{both the writ petitions by a common order'The order} passed by the^{learned Single Judge is reproduced as under:}

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"A^{perusalof the photos frledby the petitionerdiscloses} over the^{premises in questionis in a dilapidated} tt.t trr" "i-,i"t"re portions of the^{roof have alsofallen off a:rd the} ".iaiti"o, ""*ain ;;*d;;;";Iit "^{ioor *"exposed and have rusted'Moreover' the} .tt"- t "rre become^{damp due to seepageof water' Over alf it} ;pp;; A"-Gcture^{his become weakand is not in a habitable} condition.Further,asseenfromtheplaintschedulepropertyin O.S.-il. 13^{of 2OO7, the subject propertyis only one. of the items} ti"tea ror^{partition Thus'as rightlv contended} #;;;;6;ii.rns counsel for the^{petitioner'there are other} ilA-"-i;;;"J pi"p".,i"" sufliciently^{available inorder tocompensatethe} I""io"a""t No.^{7 in clseshe succeeds in the suit filed by her' The} ""ii^{i" of the year 2OO7arrd it may take many yea-rs before the} ;;i,;; i" Iinjly^{settled.It is madiclear that ar,y construction} *"a" UV ,lr"^{petition.rshaltbe subject to the resuit of O S No' 13} .i zobT'p""al"g^{beforethe Court and in case' the respondentNo 7} """"*a"^{and itre suit is decreed,the petitionersha11 not clarm} arly equities^{with respect to the cost of court The petitioneras} *1il "" tfr" respondent^{No. 7 can alwaysworkout their equitiesin} tfr. suit in^{casethe same is decreedin favour of respondentNo 7'} fir" fact that the^{respondent No.7 is residing in Singaporeis also} not denied. The^{petitioner cannot be expectedto stay 1n an} uninhabitable^{buiidingmerelyon the ground that the sa-rd} building is subject^{matterof the pending suit' In X' Pavan Raj v'} M.C.H.-Rep. by its^{Commissloner(2008 (1) APLJ2 (HC))'at para} 20, this Court has^{heldas under:-}

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A careful reading of^{the provisions of the Act and} the Bye-laws does not^{indicatethat the Commissioneris} empowered to entertain^{a titledispute and adjudicatethe-} same before disposing of^{the applicationfor grantof} building permisiion.^{Indeed, both the provisions} .^{o^f} Sectioni 428 and 429^{and clause (v) of Bye-law4'2} envisage Iiling of copies^{of title deeds and thereis no} provision under which the Commissioner^{can rejectgrant} of Uuitdit g permit on the^{ground of title dispute.As held} in Hyderabad Potteries (1 supra),^{ifany objection} regarding title is received, the^{Commissioneris required to}

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be pima cre satislied about the a pplicant's title to the cannot property d a ide d his title lawful dispute possessionbecause of the same and he the du ties ssigned to him nor he is that is neither one of adjudicato mechanism. A provided with such an of title, i person setting up a rival claim free to approach the court J^urisdictio and seek appropriate relief in that of competentregard. If merely title, thatthe applicon ay tie ground ons result for in building ol third serious parties raising disputes ofhardshipermissionP to the s are owners rejectedof the prope s where frivolous , speculative and vexatious Therefore,satisfied claims a out be made herever the legal tthe by thirdCitle ommissioner parties of the by applicis,setting ant prtma and up facie,titlehis lawful for builpos permission on merisslon, he is bound to considei ts, leaving thethe objector applicationfree to app an appropriate court of law-'

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PrakashIn SSPDChallal,- Limlted^Hyderabad Rep.^v. by^Hyderabaa its Maaaglng^{- ltaEt""p.iit"""} Director Developm ent Au hortty (2017 (6) ALT 233 (S.8.)):

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with re efore, the law as interpreted by this Court Commissio r to to HMC consider Act and thethe objections, Act, which as and requires thewhen they are rai for grant of perml ss10n on the ground of title in a pr tic manner taking into con sideration only pima facie factors. While doing so, the Commissioner cannot assu e the role of an adjudicator or arbitrator and decide the t e infer se between the applicant for buildin perm lssiolt nd the objector of such building permissio n If the appli ant is able to sho$ that pnma jfi2cle such applicant h s a right to pro ceed with the construction not\.ithstansuit or othe ing the proceeding subjpendencyect to the applicant of any iitigation by apwaplyingyofa the certain c nditions, the Co mmlssioner may either grant permission o postpone the grant of permission.,'

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In Jayamm v. State of Karnataka (2020 SCC Online Kar 2i1), a three-Jud under: bencn ot Karnaraka High Court has held as

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LOm issioner has no jurisdiction to decide the title dispute etween the parties in respect of immovable property/p erties. It is the exclusive domain of the competent vil Court to adjudicate the dispute/title in respect of the immovable property/properties and ultimately if y decree to be pas sed by the competent Civil Court be binding on the parties as well as the revenue auth rities in the State."

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For the fo golng reasons, the offrcial respondents are directed to consi r the application, dated OL.O2.2O2|, of ttre petitioner for con truction of building, in accordance with law relevarrt rules arr the bye-laws , on its own merits withou t adverting to the fa um of pendency of the suit in O.S. No. 13 of 2007 pending b een the parties, and pass orders within a penod of four we S from the date of receipt of a copy of tl'.is order. Till such e the application of the petitioner is processed by the authorities within the stipulated time of four weeks, the petitioner a.lso shal not commence any construction work. in view of the above directi ns, the official respondents shall not take any coerclve steps ins far as the construction/ repairs done bv the

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til1 the orders^{are passedon the building} petitioner are^concerned, application.

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Both the^{writ petitionsare disposed of accordingly'}

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Themiscellaneouspetitionspending'ifany'shallstand closed. There^{sha-11be no orderas to costs"}

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This Court^{has carefullygone through the order passedby} the learned^{Single Judgealld the learned Single Judge, taking into} account the^{judgments delivered in the case of K'PavanRaj vs'} M.C.H. Rep.,^{by its Commissionerl,SSPDL Limited'Rep" by its} Managing Director^{PrakashChalla, Hyderabad vs' Hyderabad} Metropolitan Development^{Authorityz and Jayamma vs' State} of Karnatakae,^{has disposed of the writ petitionswith a directionto} GHMC to decide^{the application preferred by respondent No'l in} the writ appeai^{for grant of building permission,and also directed} the authorities not^{to take any coercive action pending application} for grant of building^{permission.The learned SingleJudge has also} observed that the^{order passed by this Court will not come in the} way of the parties so^{far as the partitionsuit is concernedi'e'} ' O.S.No. 13 of 2OO7 and^{the parties will not claim any equity on} account of the order^{passedby this Court.}

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In the considered opinion^{of this Court, as respondentNo' 1 is} living in a house, which is in dilapidated^{condition and there is} immense threat of collapse at any^point of^{time, he has rightly} applied for grant of building permission. Grant of^building permission is not going to decide the title dispute in any^manner and the partition suit is still pending. Therefore,^{the learned Single}

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'^{2oo8 (r)APLJ 2 (HC)}

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'2017^{(6) ALT253(s.B.)} I2020 scc online Kar 211

Judge was certainly Ijustified^{in disposing of both the writ petitions} by directing the aut lhorities to pass order in the matter of grant of building permission in accordance with law.

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In the conside red opinion of this Court, the order passed by the learned Single Judge does not warrant any interference. However, it is once again clarified that the order passed by the learned Single Judgp and the order passed by this Court wili not create any right or r[OuiV^{in favour of the parties and t]:e parties} will be abide by thrI^{judSment and decree,which is likely to be} passed by the civil Cpurt in O.S.No.13 of 2OO7.

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With the a_foresfaid,^{the writ appeal stands disposedof.} Miscellaneous petitions, if any, shall stand closed. There shali be no order as to costs.

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SD/-M,RAMANA KRISHNA DEPUW REGISTRAR //TRUE COPY' -'' SECTION OFFICER

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The Principal Secretary, Municipal Administration^{Department, Secretariat,State} of Telangana,^HYderaba d.

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The Commissioner, Gre[ter^{Hyderabad Municipal Corporation,CCComplex'} Tank Bund Road,^HYdet iabad.

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The Zonal Commissiont[i,^{OieatetHyderabad Municipal Corporation,Khairtabad'} Hvderabad.

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The Deputy Commissiot frer,^{Greater Hyderabad lt/unicipal Corporation, Circle} No.1B, Jubilee^{Hills, HYt} Herabad.

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The Chief^{CitY Planner,} [Ci"it",^{Uya"tabadMunicipal Corporation, CCComplex'} Tank Bund^{Road, HYde} labad.

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The Assistant^{CitY Plan} h6,^{Cruatur. Hyderabad t\Iunicipal Corporation,Circle} No.18, Jubilee^{Hills, HY'} derabad.

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One CC^{to Sri.S Ram F} leddv. Advocate [OPUC] 8. One CC to^Sri.Prabhakr hr Srioada. Advocate IOPUCI 9. One CC to^Sri.Pasham krisnna^{ReddY,Advocate (OPUC)'} 10.Two CD CoPies

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