M/S. Bhargavarama Developers Llp vs State Of Telangana

Heard Mr. L. Ravi Chander, learned senior counsel representing Mr. Ch. Venkat Raman, learned counsel for the petitioner, Mr. Chatla Madhu, learned Government Pleader for Municipal Administration and Urban Development appearing on behalf of respondent No.1, learned standing counsel for GHMC appearing on behalf of respondent Nos.2 and 3 and Mr. T. Bala Mohan Reddy, learned counsel representing Mr. S. Nagesh Reddy, learned counsel for respondent Nos.4 to 14.

This writ petition is filed to declare the action of respondent No.2 vide letter dated 22/28.05.2021 rejecting the representation of the petitioner dated 23.02.2021 granting building permission in respect of the premises bearing Nos.1-10-373 to 1-10-388, situated at Brahmanwadi, Begumpet, Hyderabad without considering the deed of grant of right of way dated 30.01.2020 executed in favour of the petitioner as illegal and to set aside the same and for a consequential direction to respondent Nos.2 and 3 to grant building permission in favour of the petitioner for construction of a residential building consists of 1 Cellar + 1 Stilt + 5 Upper Floors in the above said property.

The petitioner herein has entered into Development Agreement- cum - General Power of Attorney (DAGPA) vide document No.196 of 2020, dated 30.01.2020 with Mr. Kontham Madhusudhan Rao & 6 others in respect of development of property bearing H.Nos.1-10-373 to 1-10-388, forming part of Survey No.209, situated at Brahmanwadi, Begumpet, Secunderabad. On the strength of the said DAGPA, the petitioner herein had made an application dated 09.05.2020 with respondent No.2 seeking permission for construction of 1 Cellar + 1 Stilt + 5 Upper Floors in the subject property by complying with all formalities including payment of necessary fee etc. The said application was pending.

During the pendency of the said application, respondent Nos.4 to 14 have filed W.P. No.6812 of 2020 to declare the action of respondent No.2 and other Municipal Authorities in not considering representation dated 10.03.2020 submitted by them against Mr. Kontham Madhusudhan Rao and others complaining that the said Kontham Madhusudhan Rao and others do not possess any permission for carrying out construction, taking advantage of lack of vigil by the municipal authorities over the issues other than the chaos caused by the pandemic, are making hectic efforts by trespassing into the land of the petitioners therein, as illegal.

During the course of hearing of the said writ petition, the learned standing counsel for the GHMC has submitted that the application made by the petitioner herein seeking permission for carrying out construction has been rejected, the reasons therein would be communicated. The representation submitted by the unofficial respondents herein dated 10.03.2020 would also be examined and necessary action thereon would be taken within four (04) weeks in accordance with law.  Recording the said submission, this Court closed W.P. No.6812 of 2020 on 18.05.2020 with the following finding:

"Having regard to the respective submissions, this Court is not inclined to make any order with respect to the specific assertion of the petitioners on the one hand and the unofficial respondents on the other, for, this Court, in exercise of jurisdiction under Article 226 of the Constitution is not obliged to decide the rights of the respective parties to use a passage which has allegedly been left as set-back in the apartment complex. These are the matters which obviously to be sorted out by the parties in an appropriate proceeding under civil jurisdiction

In those circumstances and recording what has been submitted by the learned Standing Counsel, this Writ Petition is closed, leaving it open to the parties to approach the civil Court for adjudication of their rights, particularly easementary rights, if any. It is made clear that the unofficial respondents shall not carry out any construction without obtaining permission from the municipal authorities. Needless to say that it would be open for the unofficial respondents to approach the municipal authorities and obtain permission and thereafter only, make construction in accordance with law. No costs."

Thereafter, respondent No.3 rejected the application filed by the petitioner dated 09.05.2020 vide rejection letter dated 28.05.2020 on the ground that there is no approach road to the proposed site from Brahmanwadi main road; and that the applicant has shown the approach road to the proposed site from the side set back of the neighbouring apartment from south side. Thereafter, the petitioner herein has submitted a detailed explanation to respondent No.2 on the said rejection and thereafter the matter was placed before respondent No.2, and the same was examined on 28.10.2020 and made certain observations. The same were clarified by the petitioner. The unofficial respondents herein have also submitted objections dated 10.03.2020 and 12.05.2020. The same were clarified by the petitioner with respondent No.2.

Thereafter, respondent No.3 has issued shortfall letter dated 19.11.2020 to the petitioner with the following objections:

"1) Since the access to the proposed site is from the already approved building, therefore NOC from all the flat owners is required / all the flat owners in the front building shall co-applicants so as to have access to the proposed site from the set back of the neighbour building.

2) To obtain Water Body NOC Committee remarks.

3) Road widening to be formed."

Thereafter, the petitioner herein has submitted a detailed reply dated 23.02.2021 to respondent Nos.2 and 3 contending as follows:

"A. The approved building is given for development of 7750 sq. yds including roads, driveways, passages, common areas and it is clearly mentioned in all documents that they shall share or commonly enjoy all paths, common areas, roads etc. with all the owners of the entire land, that includes the entire 16,489.68 sq.yds as mentioned in the Development Agreement 148/06. All the owners of the land have entered on 30.01.2020 a Deed of Grant of Right of way for their easement vide document No.34/IV/2020, dated 27.02.2020. Out of 7750 sq.yds. only 4650 sq. yds. was to be utilized for obtaining permission from all authorities for developing residential building as per clause 18 in the Development Agreement No.1481/06 and other 3100 sq. yds. Was intended for the development of roads to the rear property along with greenery to the entire property which have been shown as side I and side II as setbacks in the original plan later revised to Driveway in Fire NOC Plans. But, GHMC has given a permission considering 7750 sq. yds. totally including road widening, roads or passage to rear property for which the owners have originally not signed or part of any documents applied in the application or later in the revised plans despite mentioning as per the Development Agreement Clause 9 in which they have clearly mentioned to sign along with the Developer.

In all the sale deeds entered in the front building i.e., document No.263/2014, dated 24.02.2014 in favour of G.L. Sreenivas, it is specifically mentioned that the Vendee hereby covenant as "That the Vendee shall have a right to enjoyment use along with his/her/their co-owners road ways, approaches and all other common amenities provided with the other co-owners means all other persons having rights in the entire property."

The petitioner is not changing or making any modifications to the layout of the in front property at all and already a pathway / opening of 9m is shown clearly along with driveways in the Municipal Plan and Fire NOC Plans of the front building bearing permit No.176/66 vide File No.519/CSC/TP-7/2007, dated 31.10.2009.

There is no provision in GHMC or in law to insist NOC from other building flat owners as it is beyond their right and it is a commonly enjoyment right which the petitioner, owners, their workers etc., have been using naturally since the last 30 years and all the house numbers which are 1-10-373 to 384 for front building and the petitioner's is 1-10-385 to 388, property tax and trade licence issued by MCH itself are proof for the same which include structures on the property of the petitioner.

Insisting for NOC from flat owners of in front building is not legal nor needed and insisting on same would unnecessarily arise disputes / litigations and exorbitant delay in the entire project, causing damage to all parties including the front building owners, GHMC, Sub-Registrar etc., and tremendous monetary loss to the petitioners and the Government of Telangana.

The file was forwarded to the concerned authorities and the process is underway and already the concerned MRO has inspected the property also, survey has already been completed by the Hussain Sagar Lake Division Officials and the petitioner is awaiting for the Water Body Committee to meet.

The petitioner has complied with all statutory obligations. Road widening to be formed. The owners have undertaken to road widening and the petitioner is willing to form the road after the GHMC sanction and complete it before occupation.

The petitioner has enclosed the said documents along with explanation dated 23.02.2021 as Annexures I to IV."

Perusal of the impugned order dated 22/28.05.2021 would reveal that respondent No.2 has considered the complaints, order passed by this Court in W.P. No.6812 of 2020, written arguments submitted by the petitioner and the unofficial respondents herein and also conducting of hearing dated 07.05.2021. The impugned order is consisting of ten (10) pages, wherein respondent No.2 has reiterated the facts, written submissions, complaints, hearing was conducted through Google Meet on 24.04.2021 and 07.05.2021, respondent No.2 has rejected the said application stating as follows:

"It is observed that main issue is about approach to the rear side proposed building through the driveway (setback) of the existing building located on the front side. The front side owners of Sreemukh Kontham towers are objecting for utilizing their driveway as approach to the rear side building, whereas Sri Kontham Madhusudhan Rao & others who are the owner of the rear side land have submitted that all land lords / owners/ their legal heirs executed a Deed of grant of rights of way which empowering them to use / enjoy the said road ways, passages etc., of the left over land and hence they are natural easement holders of the entire property. Thus it is nothing but dispute about easement rights and that has to be adjudicated through Civil Court only as observed by the Hon'ble High Court in W.P. No.6812/2020."

With the said observations, respondent No.2 has advised the petitioner and unofficial respondents to approach the Civil Court for adjudication of their disputes over the easement rights. Thus, respondent No.2 has disposed of the building permission application accordingly.

As stated above, this Court in the order dated 18.05.2020 in W.P. No.6812 of 2020, granted liberty to the parties to approach Civil Court for adjudication of their rights, particularly easement rights, if any. The unofficial respondents therein shall not carry out any construction without obtaining any permission from the Municipal Authorities. Liberty is also granted to the unofficial respondents therein to approach Municipal Authorities and obtain permission and thereafter only make construction in accordance with law. Thus, this Court granted liberty to the petitioner and unofficial respondents to adjudicate easementary rights or inter se disputes by approaching Civil Court, and the petitioner herein shall make construction after obtaining permission from the Municipal Authorities and accordingly liberty was granted to obtain permission for construction with Municipal Authorities.

As discussed above, on the strength of the above DAGPA, dated 30.01.2020, the petitioner herein has submitted an application dated 09.05.2020 seeking building permission. The same was rejected on 22/28.05.2021 on the ground that there is no approach road to the proposed site from the Brahmanwadi Main Road, the applicant has shown the approach road to the proposed site from the side set back of the neighbouring apartment from south side. Thereafter, respondent No.3 has issued a short-fall letter dated 19.11.2020 with the above said three remarks / objections. The petitioner herein has submitted a detailed explanation dated 23.02.2021 to the said short-fall letter specifically raising the above said contentions and by duly enclosing the documents (Annexure-I to VI) along with the said explanation.

It is relevant to note that respondent Nos.2 and 3 are not clear with regard to the short-falls. The reasons mentioned in the rejection letter dated 28.05.2020 and the short-fall letter dated 19.11.2020 are different. Despite submission of deed of Right of Grant of way bearing document No.34/BKIV/2020, dated 30.01.2020 entered between Mr. Kontham Narsing Rao and others with the petitioner, there is no consideration of the same by respondent No.2 in the impugned order. There is no consideration of the DAGPA and the recitals of sale deed bearing document No.263 of 2014, dated 24.02.2014 (Annexure - V) submitted by the petitioner herein. There is no consideration of Annexure - VI i.e., building permit No.176/66 vide file No.519/CSC/TP-7/2007, dated 31.10.2009. There is no consideration of the explanation submitted by the petitioner with regard to the obtaining Water Body NOC Committee remarks and road widening to be formed.

Referring to the above, Mr. L. Ravi Chander, learned senior, would submit that the impugned order is an order without consideration of said contentions, documents at all and without any reasons. It is not a reasoned order.

Whereas, Mr. T. Bala Mohan Reddy, learned counsel appearing for the unofficial respondents, referring to the contents of the counter, would submit that this Court vide order dated 18.05.2020 in W.P. No.6812 of 2020 granted liberty to the petitioner and unofficial respondents to approach competent Civil Court for adjudication of their rights including easementary rights, if any. Therefore, respondent Nos.2 and 3, Municipal Authorities, cannot pass any order contrary to the said order dated 18.05.2020. The petitioners instead of approaching the competent Civil Court for adjudication of their rights including easementary rights filed the present writ petition. Respondent No.2 has considered the said aspects in detail and passed the impugned order which is a reasoned order.

As stated above, the impugned order is of 10 pages. Respondent No.2 has reproduced the contentions of the parties and he has not considered the contentions raised by the petitioner and unofficial respondents. This Court is of the considered view that the impugned order is not a reasoned order. Respondent No.2 has no power to insist the petitioner to submit NOC from all flat owners. He has to consider the application submitted by the petitioner seeking building permission in accordance with law. He cannot relegate the parties to a Civil Court referring the finding given by this Court in the order dated 18.05.2020 in W.P. No.6812 of 2020.

At the cost of repetition, it is relevant to note that this Court granted liberty to the parties to approach the Civil Court for adjudication of easementary rights. In the very same order, this Court has granted liberty to the petitioner to obtain permission for construction. Instead of considering the application to be submitted by the petitioner on its own merits, referring to the order dated 18.05.2020 in W.P. No.6812 of 2020, without considering the contentions raised by the parties, respondent No.2 has disposed of the said building permission advising the parties to approach Civil Court for adjudication of their disputes over the easementary rights. Therefore, this Court is of the opinion that the impugned order is not a reasoned order. Any order without reasons is an order without application of mind.

In view of the above, without going into the merits and demerits of the case, on the said short ground that the impugned order is not a reasoned order, the impugned order is set aside. The matter is remanded back to respondent No.2 with a direction to consider the building permission application submitted by the petitioner, objections submitted by the unofficial respondents and the written explanations submitted by the petitioner dated 23.02.2021 including the documents, viz., Annexure - I to VI mentioned therein and the Deed of Right of Grant of Way bearing document No.34/BKIV/2020, dated 30.01.2020. Respondent No.2 is directed to consider the contentions of the parties specifically and pass appropriate reasoned order and communicate the same to the petitioner and unofficial respondents. Considering the fact that the petitioner has submitted the application seeking permission for construction on 09.05.2020 and the order dated 18.05.2020 in W.P. No.6812 of 2020, respondent No.2 is directed to complete the said exercise within four (04) weeks from the date of receipt of a copy of this order.

The present Writ Petition is accordingly disposed of. However, there shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.