WP/24196/2004 of Smt. Munnangi Parvati, Vs The Assistant City Planner, on 30 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

THURSDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE SRI JUSTICE N.V. RAMANAWRIT PETITION NO.24196 of 2004

Between:

Smt. Munnangi Parvati, W/o. Sri Ramaiah, R/o. 1-10-123/1, Ashoknagar, Hyderabad.

AND

..... PETITIONER

1 The Assistant City Planner, Municipal Corporation of Hyderabad, Circle No.5, Khairatabad, Hyderabad.

2 The Chief City Planner, M.C.H., B.R.K.R. Bhavan, Tankbund Road, Hyderabad.

3 The Municipal Corporation of Hyderabad, Rep. by its Commissioner, B.R.K.R.

Bhavan,

Tankbund Road, Hyderabad.

4 The District Collector, Hyderabad.

.....RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court may be pleased togrant an order or direction or writ, more so in the nature of Writ of Mandamus,declaring the inaction of the respondents, in considering and passing orders on thebuilding application of the petitioner, which was resubmitted on 14-11-2004 inrelation to the proposed construction in plot No.342/A of Sri VenkateswaraCooperative House Building Society for A.P. Legislators Limited, as illegal, arbitraryand violative of Article 14 of the Constitution of India and the directions of thisHon'ble Court in W.P.No. 2926/2004 and consequently direct the respondents toapprove and release the house plans of the petitioner.

Counsel for the Petitioner: SMT.K.SESHARAJYAM

Counsel for the Respondents: SMT.G.JYOTHI KIRAN

The Court, at the admission stage, made the following:

THE HON’BLE SRI JUSTICE N.V. RAMANA

W.P. No. 24196 of 2004

Oral order:

Assailing the inaction on the part of the respondent Nos. 1 to 3 in considering theapplication dated 14-11-2004, resubmitted by the petitioner, for sanction of thebuilding plan, the present writ petition is filed.

The petitioner claims to be the owner of Plot No. 342-A in M/s. Sri Venkateswara Co-operative House Building Society for A.P. Legislators Ltd.The petitioner, states that in order to construct a building in the said plot, when sheapproached respondent No.1 on 12-1-2004 with an application, her application wasnot entertained on the ground that she did not produce “No Objection Certificate”from the revenue authorities. Impugning the said action, the petitioner filed writpetition in W.P. No. 2926 of 2004, which by order dated 19-2-2004, was disposed ofwith the following directions:

If there is any excess land is in occupation of the petitioner than here entitlement under the sale deed,it is always open for the collector to file objection for which the Municipal Corporation cannot grant anypermission over and above the extent of the land purchased by the petitioner. In view of the same, the1[st] respondent is directed to receive the application without insisting No Objection Certificate andconsider the same and pass appropriate orders in accordance with law.

Pursuant thereto, the petitioner submitted the application on 7-4-2004, and the sameby order dated 12-10-2004, was rejected with an endorsement that the proposalssubmitted by the petitioner are in violation of G.O. Ms. No. 423, M.A., dated 31-7-1998. The petitioner states that thereafter, she re-submitted the application on 29-10-2004 along with revised plan, but by communication dated 10-11-2004, she wasinformed that the revised plan submitted by her are in violation of FSI and coverage.The petitioner claims that she once again resubmitted the plan to the respondentson 14-11-2004, but so far no orders had been passed thereon. Hence, she filed thepresent writ petition.

Heard the learned counsel for the petitioner and the learned Standing Counsel forthe respondents-Municipal Corporation of Hyderabad (hereinafter referred to as ‘theCorporation’).

The learned counsel for the petitioner submits that the inaction on the part of therespondents-Corporation in considering the application resubmitted by the petitionerfor grant of building sanction plan, is not only illegal and arbitrary, but is alsoviolative of the directions made by this Court in W.P. No. 2926 of 2004, dated 19-2-2004.

The learned Standing Counsel for the respondents-Corporation produced thenote file, maintained by the respondents-Corporation in relation to grant of buildingsanction plan to the petitioner.

Pursuant to the orders dated 19-2-2004 made in W.P. No.2926 of 2004, thepetitioner resubmitted application for grant of building sanction plan on 7-4-2004,which was rejected by orders dated 12-10-2004 of the Corporation stating that the proposals submitted are in violation ofG.O. Ms. No. 601, M.A. Department, 5-11-1998 in respect of proposed coverage.The petitioner, thereafter, once again resubmitted the revised plan on 29-10-2004,and upon considering the same, the Corporation vide their orders dated 10-11-2004, informed the petitioner that the revised plans submitted are in violationof FSI and coverage. The petitioner, again resubmitted the revised plans on 14-11-2004, and it appears from the note file produced by the Corporation that therespondents while considering the revised plans submitted by the petitioner on 14-11-2004, made an endorsement to the effect that “the petitioner has satisfied G.O.Ms. No.423, M.A., dated 31-3-1998 regarding land use, coverage, FSI, height ofthe land building and all round open spaces respectively”. However, in view ofthe opinion given by the Standing Counsel for the Corporation in the matter to theeffect that it is open to the Commissioner to ask the party to submit any otherdocuments or affidavit acceptable to the Commissioner for the purpose of proof oftitle, the file was re-circulated to Head Office to obtain clear instructions whether theproposals of the applicant can be considered in light of the orders of the Hon’bleHigh Court in W.P. No. 2926 of 2004 and in absence of NOC from District Collector.

The note file having been re-circulated to the Head Office, was returned to the ACP.V, inter alia recording the following notings:

As seen from the instructions of Commissioner, MCH, dated 16-4-2004, wherein it is specifiedinstructions to ACP that the plots of Venkateshwara Society for physical verification and obtain statusreport from MRO. As observed, the MCH is not insisting NOC from the Collector, but physicalverification was sought to find out any excess land in occupation by the applicant, which may besorted out by way of joint inspection with MRO or may obtain the information from the MRO concernedby ACP.V. Based on the above, further action may be taken to avoid further delay in disposal.

The learned Standing Counsel for the respondents-Corporation sought todefend the notings in the file relating to physical verification to find out whether thereis any excess land belonging to the Government, in the occupation of the petitioner,over and above the land purchased by her, before granting permission forconstruction of building, and no exception can be taken thereto.

I am unable to agree with this contention of the learned Standing Counsel forthe respondents-Corporation. Though in W.P. No. 2926 of 2004, the Collector wasgiven the liberty to file objections, if any excess land was in occupation of thepetitioner than her entitlement under the sale deed, admittedly, neither the Collectornor the Mandal Revenue Officer concerned has raised any objections so far as tothe alleged excess land belonging to the Government in possession of thepetitioner. Be that as it may, the law is well settled that the respondents-Corporationhave no right whatsoever to go into title disputes or verify the prima-facie title whilegranting building sanction permission, and it is also not the case of the respondents-Corporation that the petitioner has no prima facie title over the land on which she isseeking permission for construction of a building.

Further, as per para 6.4 of the Municipal Corporation Building Bye-Laws,1981, in case of refusal of building permit, the authority shall quote the reason andrelevant provisions of the bye-laws which the plans contravene, and the authorityshall as far as possible advice all the objections to the plans and specification in theannexure that no new objections are raised when they are resubmitted aftercompliance of earlier objections. In the instant case, the petitioner submittedapplication for grant of building permit for the first time on 12-1-2004, and theobjections taken by the respondents-Corporation on the said application, weresatisfied by the petitioner, as is evident from the file produced by the respondents-Corporation, and when the petitioner, according to the note file of the respondents-Corporation, had complied with the objections raised, it was not open to them to takeobjections in piecemeal, one after the other, in succession, and more so when the bye-laws of the respondents-Corporation themselves provided that the authorities ofthe respondents-Corporation have to take all possible objections at the time ofconsidering the application for grant of building sanction plan, without giving scopefor raising of new objections when the application is resubmitted after compliance ofthe objections. Inasmuch as the petitioner, had complied with all the objectionstaken by the respondents-Corporation, as is evidenced from the note file producedby them, there was no reason for them not to consider grant of building permit to thepetitioner. At this stage, the learned Standing Counsel for the respondents-Corporation submitted that the respondents have to verify the physical dimensions ofthe plot with reference to the sale deed of the petitioner without referring the matter tothe Mandal Revenue Officer concerned as directed by this Court by order dated 19-2-2004, passed in W.P. No. 2926 of 2004, and it takes some time for grantingbuilding sanction plan to the petitioner. If that be so, I deem it appropriate to disposeof the writ petition with the following directions:

The respondents-Corporation are directed to verify the physical dimensionsof the plot with reference to the sale deed of the petitioner, if not already done, withina period of ten days from today, and thereupon, the respondents-Corporation, shallconsider the application resubmitted by the petitioner on 14-11-2004, and passappropriate orders in the light of the observations made above.

The writ petition is accordingly disposed of. No costs.

Date: 30[th] December, 2004

KSR

_________________

N.V. RAMANA, J.

To

1 The Assistant City Planner, Municipal Corporation of Hyderabad, Circle No.5, Khairatabad, Hyderabad.

2 The Chief City Planner, M.C.H., B.R.K.R. Bhavan, Tankbund Road, Hyderabad.

3 The Municipal Corporation of Hyderabad, Rep. by its Commissioner, B.R.K.R. Bhavan, Tankbund Road, Hyderabad.

4 The District Collector, Hyderabad.

5 Two CD copies.