Dismissed

The Greater Hyderabad Municipal Corporation (Ghmc) And 2 Others v. G Madhuri And Another

Telangana HC14 Feb 2023WA/198/2023

Case brief

AI extract

What is this about?

In this writ appeal, the GHMC challenged a Single Judge's order that disposed of a building permission petition without affording an opportunity to file a counter affidavit. The two-judge bench analyzed precedents regarding municipal authority's duty to assess title prima facie and dismissed the appeal, holding that opportunities to defend a shorthand notice by affidavit are settled exceptions and

What did the court decide?

The writ appeal was dismissed. Any pending miscellaneous applications stand closed. No order as to costs.

The Greater Hyderabad Municipal Corporation (Ghmc) And… — Property and Title | Telangana HC (2023)

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[³³¹¹ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE FOURTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND

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THE HON'BLE SRI JUSTICE N. TUKARAMJI

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WRIT APPEAL NO: 198 OF 2023

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Writ Appeal under clause 15 of the Letters Patent Preferred against the order dated 1511112022 in W.P No 41542 ol 2022 on the file of the High Court.

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Between:

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1 . The Greater Hyderabad Municipal Corporation (GHMC), Rep. by its Commissioner, Tank Bund Road, Hyderabad

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1. The Deputy Commissioner, Circle No 26 Kukalpally Zone GHMC, Hyderabad. 3. The Assistant City Planner, GHMC Kukatpally Zone, Circle No.26, Hyderabad

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...A''ELLANT'/RES'.NDENT. 2 To 4

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AND

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G Madhuri, W/o Late Madhukar Reddy Aged about 45 years Occ House Wife Rl/o H No A-7-1-302145/4/5 Sai Baba Nagar Sanjeeva Reddy Nagar, Hyderabad

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...RESPONDENT/wRIT PETITIONER

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The State of Telangana, Rep by its Principle Secretary (MAUD) Secretariat Buildings, Hyderabad

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...RESPONDENT/RESPONDENT

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumstances statedⁱⁿ the affidavit filed in support of the petition, the High Court may be^pleased to suspend the ludgment dated^'l 5/1 1t2O22 in W.P.No.41 542 ol 2022.

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Counsel for the Appellants: SRI M. DHANANJAY REDDY

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(sc FoR GHMC)

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Counsel for Respondent No. 1: SRI E. VENKATA SIDDHARTHA

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The Court made the following: JUDGMENT

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t ./.-

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TIIE HON'BLE THE CHIEF JUSTICE UJJAL tI HIN'AN AND

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tHE HON'BLE SRI JUSTICE N. TUKARIu)LJI

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WRIT APPEAL No. 198 of 2023

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JUDGMEN' l: tP,.r i.e H ),,.bi, ttr Lh.tt^,l li stice U.ipt BhtLqat )

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-.lear1 IVr. M.Dhananjav Reddy, learrL,.:d Standing (loun:;el 1rr Greater Hl,derabad Municiprl. Corporation (GHN.{,1) fo' rhe appellants and Mr. E.Vt:nke-ttzr Siddhartha, leal.ncd^(ro rnsel for Iesponclent No.1/u'rit petjti,ln€r

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'[1'r Ls ir: tra court appeal has been liled by G]JMC and its oll'ciirls .rgairlst the order dated I 5. | 1 .2C'.1..2 p assed by thc lcarne d Singlc Judge disposing ol W.I'."1o..1 1542 of 2022 l'lled 11- respon clent No. 1 as the writ peti ti()ne r

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3, I?c:jp )rrdent No. I harl filed the rr.lated 'r,ril petition seekir)g t h, ' Iollou,ing relief

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T,) issrrc an order or direction or uril nrore )tl r:1c rl:u'11. orrc ir) thc naturc of Writ of lv4ar-da;nus lc c Izu nl thc .rction of thc rcsp()nccn_; Drore r):lr lc tlirrlv resltonclcnr No.3 in rclcctir q rhe 1:uilriing rrenni ;s:or: applii'arior-r oI the petitioncr by r,r;a 1 issrrir-tg

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)

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the impugned Letter vide Lr.No.10741/TPS/ KPZ /GHMC /2O2 1 dated 26.O7 .2021, in respect of Petitioner's Ptot beanng No.M-SA, admeasuring 300 sq.yds, in Sy.No.329l4 and 32915, situated at Mahadevapuram Residential Project - Phase III, Gajularamaram Village Qutuballapur Manda-[, MedchalMatkajgrri District, as illegal, arbitrary, in violaLion of Articles 14, 21 and 3O0-A of Constitulion of India and a-lso in violation of GHMC Act, besides being in violation of principles of natura-l^justice and to consequently set aside the impugned Letter vide Lr.No. 10741/TPS/ KPZ/GHMC /2O21 dated 26-0T -2021, in respect of Petitioner's Plot beanng No.M-SA, admeasuring 3OO sq.yds, in Sy.No.329/4 and 329 15, situated at Mahadevapuram Residential Project-Phase III, Gajularamaram Village, Quthubullapur Mandal, Medchal-Ma-lkajgiri District thereby direct the respondents to accord the building permission based on petitioner's application vide frle No.3lC27 /O25O7 /2021, dated O5-02-202 1.

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Grievance expressed by respondent No. I before the learned Single Judge was with regard to the shortfall notice dated 17.03.2O2 1 issued by GHMC to respondent No.l stating amongst others that the Tahsildar, Quthbullapur Mandal, vide letter dated 05.01.2018 had informed that land in Survey No.329/ 1 to 10 of Gajularamaram Village is being treated as government land and continues to remaln

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itr lhe pc,ss e:;s^jon of the government. Respon^j lnt No. t has also cheLll, nged the order dated 26.O'7 .2Oi I passed by appellar-rt I io.2 u'hereb.' respondent No. 1 r,r'as ir;formed that her :LppL:ation for building permission car-rnot be consid er,:d

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l'he rtforesaid remarks were made in thr: c,lntext of building p 'rmrssion sought for b1, responderrr No.1 from GHMC ior lonstrLlction of resiclential bui rl ng in Plot No M 5A ir-r Survey No.329/4 and 329 I r situated at Gajularam Lran-r Village, Quthbullapur Man:;rl, Medchal District (su bject land)

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I'ccol ding to respondent No.1, she 'rad 1,,- rchased the subjecr la^-r<l by \l'ay of a registere,d sirl: rleed on 19.08.1995. She had made an applicatio:: to GHMC seekinlS bt ilCing permission on O5.O2.2O2 llornever, Town Plal ning Officcr of GHMC issued lr:tte r dated 17.03.'.2021 r,'hich 1br all ir-rtenl and purposr: irmounted to rejecti,:rn of b.ritding permission. Aggrieved, t h<: rel,lted writ pr'titior-r car r( to be [ilecl

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.l.. I

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Learned Standing Counsel for GHMC had sought for time to file counter alfidavit. However, relying on the earlier decision of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad Districtt, learned Single Judge disposed of the writ petition by setting aside the order dated 26.07.2021 and by directing the appellants to process the application of respondent No.1 for building permission without taking into consideration letter of the Tahsildar dated 05.01.20 i8 subject to compliance of other shortfalls by respondent No.1.

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Learned Standing Counsel for the appellants submits that learned Single Judge ought to have granted time to the appellants to file counter affidavit. It was not^justilied to dispose of the writ petition without granting reasonable opportunity to the contesting respondents^(appeiiants herein) to file counter a,ffidavit. That apart, the subj ect iand is a government land. On government land no

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'^zoor 1s;^{ALD 600}

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building p ermission can be gralted b1. CiI{\4C. Without makirrg th: government a party, respondent. |tro.1 had filed the u'rit p:tition which u'as accordingl]. disipc,secl of. He, therefore, sltbmits that order of the Iearne,C l:iinf11e Judge may be s;er a side.

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.Per atntra, Mr. E.Venkata Siddhzu.r_.:ra, learned counsei fo^- respondent No. I submits tlrat h,: was present in the hez rrng before the learned SingLe J uclrle. Though learned Stending Counsel lor GHMC had irL r.ially sought for time tronetheless as the hearing progres;:;ecl, learned Stand.:ng Counsel parlicipated in r-he lrr:s11n* and contes,terl -h e proceedings. That apart, th : lav. on this point is 'u ery weli settled by the decision r-endered in Hyderabar . Potteries (supra) which d ecrsirt rr has since been flc1l,rv erl by a Division Bench of this Ctorr-t . 'lherefore there is r o merit in the writ appeal whrc h should be dismi sse C.

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Siubn is;sions made b1. learned counsel f:r. the parties have been ltLly considered.

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The decision of this Court in Hyderabad Potteries (supra) has been affirmed by the Supreme Court in State of Andhra Pradesh v. Hyderabad Potteries2. Thereafter, in Commissioner v. Syed Iftekhar Ahmed (W.A.No.4O3 of 2022, dated O5.O7.20221, it has been held that municipal authority is required to make a pragmatic assessment^of the materials on record and decide the question of pima facie^{titieand lawful possessionof the applicant.} Application for grant of building permission carlnot^be rejected on the basis of TSLR entries. All that municipal authority is required to do is to find out pima facie title and lawful possession. Following the aforesaid decision, this Court in Greater Hyderabad Municipal Corporation v. M/s. Sipil Infra Pvt. Ltd. (W.A.No.67 of 2023,^dated l9.Ol.2o23l held that if the State has^a better^{claim to the} subject property, it has the remedy to^{establish its claim.} Till such time, it cannot have a veto over grartt^{of building} permission by the municipal authority if the latter ts^prima

, (2010) 5 SCC 382

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/acie^{s,atisf:erl about the title and possessiono[ thr: subject} land b1,. the applicant

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T'herre fore, we are of the view that nrere ll on the basis of the krtt:r of Tahsildar dated 05.01 .20 t13, appellants couid r-ro: I ave declined building permission to res;pondent No. 1. To t lat extent, learned Single Judge rvas;^justified in directing tl e appellants to consider the pral'er lor building permission nrade by respondent No.1 dr: ho.r; t.he letter of the Tairsild ar dated 05.01.2018

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Lns,:fi r €rant of time to file countel affidavit is concerned, \4'e are of the view that the szrme cl,:cerLds upon the facts a rci circumstances of each case. In rnarry cases, based on tl Le instructions received by the Star rling Counsel or Governr rernt Pleader from the resper:tive <l:partments, cases ilre < e,:ided. In this case what w'as uncL,:)r r:hallenge is the shor.fzrll notice dated 17.03.2O2I. By ilLng affidavit appe1l:rnts cculd not have improved r-rpon -lte shortfall notice deLte d 17 .O3.2O21. In fact, the lan on 1.his point is rvell sr-:tt'lec . An order must be capable of trt: I rg ,,iefended

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on the basis of the contents contained in the order itself.

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The same cannot be improved upon by way of affidavit (see

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