Vishwa Bharathi Educational Society vs State Of Telangana

1.This Writ Petition is filed to declare the action of the 2nd Respondent/Municipality in issuing the impugned notice dated 27.05.2021 as illegal.

Heard Sri A.Kranti Kumar Reddy, learned counsel for the Petitioner, Sri N.Praveen Kumar, learned Standing Counsel appearing for the 2nd Respondent, Sri Y.Rama Rao, learned Standing Counsel appearing for the 3rd Respondent/ the Hyderabad Metropolitan Development Authority, and Sri B.Mayur Reddy, learned counsel for the 4th Respondent and perused the record.

FACTS OF THE CASE

i) The Petitioner herein/Vishwa Bharathi Educational Society had entered into a lease deed bearing document No.8164 of 2019, dated 03.07.2019 with regard to the land admeasuring Ac.2.00guntas situated in Sy.Nos.488, 489 and 490 of Manchirevula Village, Narsingi Municipality, ORRGC Mandal (erstwhile Gandipet Mandal), Ranga Reddy district, with the owners of the said property in order to establish a school.

ii) The Petitioner had made an application, dated 13.01.2020 along with all necessary documents to the 3rd Respondent seeking permission to construct a building over the above leased land in order to run an Educational Institution.

iii) While the said application is pending for consideration, the Government has imposed complete Lockdown due to pandemic situation.

iv) After relaxation of the Lockdown, the 3rd respondent has addressed a letter to the Petitioner, dated 09.09.2020 requesting the Petitioner to pay necessary development fee and other charges amounting to Rs.47,58,179/- to process the Petitioner's application.

v) The Petitioner had paid the said amount and also issued post-dated cheques towards installments of permit fee vide their letter dated 20.11.2020.

vi) On the instructions of the 3rd respondent, the Petitioner had also executed a simple mortgage deed, dated 20.11.2020 in favour of the 3rd Respondent by mortgaging 5% of the total built up area.

vii) Except release of permission, everything else was concluded in the Petitioner's case. The Petitioner had also addressed a letter dated 20.04.2021 to the 3rd respondent requesting him to release the permission plan.

viii) Since the release of plan was getting delayed and the Petitioner has complied with all requirements, the Petitioner started construction strictly in accordance with the plan submitted for approval before the 3rd respondent and also in accordance with the permissible limits under applicable law.

ix) While the matter stood thus, the Petitioner found a notice dated 27.05.2021 issued by the 2nd respondent at the site lying on the ground. To the utter shock of the Petitioner, the said notice refers to another notice dated 18.05.2021 which is allegedly issued by the 2nd Respondent. In fact, the Petitioner is not in receipt of any notice dated 18.05.2021 and also the impugned notice, dated 27.05.2021 was also not properly served on the Petitioner but was left at the site and the same was noticed by the Petitioner on 08.06.2021.

x) The Petitioner had also submitted its reply vide its letter dated 10.06.2021, to the impugned notice, dated 27.05.2021.

xi) The Petitioner had stopped its work at the site in question and informed the same to the 2nd Respondent vide their letter dated 10.06.2021.

xii) The impugned notice dated 27.05.2021 issued by the 2nd

xiii) With the said submissions, the Petitioner sought to set aside the said notice, dated 27.05.2021.

4) CONTENTIONS OF THE 2ND RESPONDENT

i) The Petitioner had illegally and unauthorizedly commenced the construction work by laying roof slabs of Cellar +Ground floors and proceeding with further construction work in Sy.Nos.488, 489 and 490 of Manchirevula Village, Narsingi.

ii) They initiated action in accordance with law by issuing show cause notice, dated 18.05.2021 and directed the Petitioner to stop further work of construction immediately and also to submit relevant document/sanctioned plan if any for further verification, failing which further action will be taken under the provisions of Telangana Municipalities Act, 2019.

iii) Since no reply was received from the Petitioner, another notice dated 27.05.2021 was issued to the Petitioner directing him to submit reply within three days from the date of receipt of the notice.

iv) In response to the said notice, the Petitioner herein has submitted reply dated 10.06.2021 stating that they have applied to the 3rd Respondent for building permission of School Building duly paying required fees and also submitted simple mortgage deed but due to unexpected pandemic situation their permission was not released. Thereafter, they were orally informed that the application was rejected on flimsy grounds and they are taking appropriate steps against the same. Further they informed that they have stopped the work and requested the officials not to take any further action pursuant to notice dated 27.05.2021.

v) The 2nd Respondent received a copy of rejection intimation dated 21.05.2021 from the 3rd respondent wherein it was informed to the Petitioner that their application for approval of permission for construction of Cellar, ground + 3 upper floors in Sy.Nos.488,489 and 490 of Manchirevula, ORRGC Village, is rejected as there is title dispute and as per the allotment orders dated 07.03.1969 and Sanad dated 26.04.1970, the land in Sy.No.488 and 489 including Sy.Nos.181, 212, 234 and 292 to an extent of Ac.11.23guntas is vested in the Government of Telangana and treated as Government land.

vi) The 3rd Respondent also directed the Petitioner not to take up any further construction in the above site, failing which action will be taken as per Rules.

vii) The 2nd Respondent had addressed a letter, dated 14.06.2020 to the Tahsildar, Gandipet Mandal, requesting to protect the Government lands in Sy.Nos.488 and 489 including Sy.Nos.181, 212, 234 and 292 to an extent of Ac.11.23 guntas from the land grabbers.

viii) With the said submissions, the 2nd Respondent sought to dismiss the present writ petition.

The 3rd Respondent made its submissions orally without filing counter.

CONTENTIONS OF THE 4TH RESPONDENT

i) The land admeasuring Ac.0.17guntas in Sy.No.181, Ac.0.36guntas in Sy.No.212, Ac.0.26guntas in Sy.No.234, Ac.1.30guntas in Sy.No.291, Ac.5.09guntas in Sy.No.488 and Ac.2.35guntas in Sy.No.489 in total Ac.11.33guntas situated in Manchirevula Village, Narsingi Municipality, ORRGC Mandal is an evacuee property and was allotted to displaced persons under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 vide allotment orders dated 26.04.1970 in favour of Radhibai Chellaram under the provisions of the said Act. Vide corrigendum dated 26.04.1969, it is mentioned that the survey number to be read as 291 instead of 292. Pursuant to the Sanad allotment orders, dated 26.04.1970, the said Radhibai Chellaram is the absolute owner. The said Radhibai Chellaram made an application to the Collector to implement the Sanad in the above said land in her favour. She died on 16.08.1985 during pendency of the said application.

ii) The 4th Respondent through GPA being legal heir made an application, dated 22.07.2016 to the Tahsildar, Gandipet Mandal, for mutation of their names in respect of the land admeasuring Ac.11.33guntas in Sy.Nos.181, 212, 234,291, 488 and 489 of Manchirevula Village, claiming the same as evacuee property by virtue of the above said final orders/Sanad. The same was rejected and therefore, the 4th respondent filed an appeal before the Revenue Divisional Officer. The same was rejected without notice to the 4th respondent. Therefore, he has filed a Writ Petition vide W.P.No.6594 of 2021 and this Court vide order dated 16.04.2021, set aside the said rejection orders and remanded the matter to the said Tribunal for re-consideration with regard to the issuance of mutation in favour of the 4th respondent. Thus, the 4th respondent is having right of claim over the above said property.

iii) The Petitioner had applied for permission for construction of building in the above said land. Therefore, the 4th Respondent has submitted objections before the 3rd Respondent and the 3rd respondent, who in turn, on consideration of the said objections after following the due procedure laid down under law including issuance of show cause notice calling explanation, passed a detailed order dated 21.05.2021 rejecting application submitted by the Petitioner for construction of building. Therefore, there is no irregularity in the said rejection order dated 21.05.2021.

iv) With the said submissions, the 4th respondent sought to dismiss the Writ Petition.

CONSIDERATION OF THE COURT

Rival submissions referred supra would reveal that there is dispute between the lessors of the Petitioner, the Government and the 4th Respondent. The Petitioner had applied for permission for construction of building through online application dated 13.01.2020 on the strength of the registered lease deed bearing document No.8164 of 2019, dated 03.07.2019 with regard to the land admeasuring Ac.2.00 in Sy.No.488 situated at Manchirevula Village, Gandipet Mandal. The same was rejected vide proceedings dated 21.05.2021. The challenge is to the proceedings dated 27.05.2021 through which the respondent No.2 had directed the petitioner to stop the construction and submit explanation within three days as to why the unauthorized construction shall not be removed. The lessors of the Petitioner are claiming that they are owners of the said property by virtue of the ownership certificate obtained under Section 38(A) and (B) of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands Act, 1950, being the legal heirs and successors of late Jettoji and the same was also confirmed by the Revenue Divisional Officer, Rajendra Nagar Division, in Case No.G/3048/2014 dated 23.01.2016. Pattadar passbooks were also issued in their favour. Whereas, the Government is also claiming that the said land belongs to the Government. The land in Sy.Nos.488, 489 including Sy.No.181, 212, 234, 292 to an extent of Ac.11-23Guntas, vested in the Government of Telangana and treated it as Government land. Vide its letter dated 14.06.2020, the 2nd Respondent has requested the Tahasildar concerned, to protect the said Government land by taking all necessary steps.

The 4th Respondent is claiming that he is the owner of the land admeasuring Ac.11.23guntas in the above said Sy.Nos.181, 212, 234, 291, 488 and 489 of Manchirevula Village. He is claiming under the above said allotment orders dated 07.03.1969 and Sanad, dated 26.04.1970. It is the further contention of the 4th respondent that the application submitted by the 4th Respondent seeking mutation of his name was rejected and he has filed a writ petition vide W.P.No.6514 of 2020 challenging the same. This Court vide order dated 16.04.2021, set aside the said rejection order and remanded the matter back to the Tribunal for re-consideration.

Learned counsel for the Petitioner, referring to the proceedings dated 23.06.2021 passed by the Tribunal, would submit that the Tribunal has also rejected the claim of the 4th Respondent. Therefore, the 4th Respondent is not having any right over the said property.

A perusal of the said order dated 23.06.2021 would reveal that the land in Sy.No.292 admeasuring Ac.22-05guntas of Manchirevula Village is classified as 'Shikam Sarkari' i.e. Itikan Cheruvu. With regard to the land in Sy.Nos.181, 212, 234, 488 and 489 of Manchirevula Village, names of different pattadars were recorded and several third parties interest has accrued over the land. None of the original allotment orders nor certified copies of the allotment orders or scanned for verification of genuinity are found on record. On the said grounds, the Tribunal has dismissed the said application. Thus, the said facts would reveal that there is dispute between the Petitioner, 4th Respondent and Government over the said land admeasuring Ac.2.00 in Sy.No.488 of the Manchirevula Village.

As stated above, the 3rd Respondent vide order dated 21.05.2021 rejected the application submitted by the Petitioner on the ground that there are disputes between the Petitioner, Government and the 4th Respondent and that there are allotment orders dated 07.03.1969 and Sanad 26.04.1970 issued in favour of the 4th Respondent. The land in Sy.Nos.488 and 489 including the land in other survey numbers to an extent of Ac.11.23guntas vested in the Government of Telangana and the same is treated as the Government land. In the said order, the 3rd Respondent has specifically mentioned the reasons and also the triangular dispute between the Petitioner, Government and the 4th Respondent. In the said order, the complaint of 4th respondent is also specifically mentioned. Issuance of show cause notice and reply dated 04.01.2021 submitted by the Petitioner were considered. It is a reasoned order.

It is relevant to note that the Petitioner herein did not challenge the said legal proceedings dated 21.05.2021 issued by the 3rd respondent without challenging the rejection order dated 21.05.2021, cannot challenge the said proceedings, it cannot challenge the consequential proceedings dated 27.05.2021 issued by the 2nd respondent.

It is also relevant to note that the 2nd respondent had issued the impugned proceedings dated 27.05.2021 on the ground that the Petitioner has commenced the construction unauthroizedly, therefore it has directed to stop the work and to submit relevant documents/sanctioned plan. Even then, it has not submitted the same. Thus, the construction being carried on by the Petitioner is an unauthorized construction. Therefore, it has to stop the construction. According to the 2nd respondent, it had issued show cause notice dated 18.05.2021 and also another notice dated 27.05.2021. The Petitioner has submitted reply dated 10.06.2021. The 2nd respondent has to consider the same and has to pass necessary orders.

It is the contention of the Petitioner that it has submitted an application through online dated 13.01.2021 seeking construction of building permission. Despite making payment to the 3rd Respondent towards the necessary charges, submitting all the documents, it has not released the building permit in terms of Section 20 sub Section (1) and (2) of the HMDA Act. Therefore, according to the Petitioner, since the 3rd Respondent has neither rejected nor accorded permission for construction within the specified period of 90 days, the Petitioner commenced construction by invoking deemed clause.

In view of the said submission, it is apt to refer Section 20 of the HMDA Act:-

Application for Land Development Permission:-

(1) Any person or body intending to carry out any development on any land as a layout or such similar land development scheme shall apply in writing to the Metropolitan-Commissioner for Development Permission containing such particulars and accompanied by such documents, ownership clearance from the revenue authority, fees and plans as may be prescribed and enclosing joint undertaking with a licensed developer, where applicable.

(2) On receipt of an application for Development permission under sub-section (1), the Metropolitan Commissioner, after making such enquiry as it considers necessary in relation to any matter concerning the Metropolitan Development and Investment Plan and regulations or area development plan or Notified Development Scheme or in relation to any other matter, may issue an order,-

(i) granting Development Permission unconditionally or subject to such conditions as it may consider necessary, or

(ii) refusing permission by recording reasons in writing.

(3) If within ninety days after the receipt of such application made under this section for Development Permission for layout or such similar land development scheme, or of any information or further information required, the Metropolitan Development Authority has neither granted or refused its permission, such permission shall be deemed to have been granted and the applicant after intimating the Metropolitan-Commissioner in writing, may proceed to carry out the development but not so as to contravene any of the provisions of this Act or Metropolitan Development and Investment Plan or Scheme or any rules or regulations made under this Act.

(4) The Development Permission Order may among other conditions contain the implementation of Metropolitan Development and Investment Plan, road and other communication network system and the area of land affected and to be surrendered free of cost to the Metropolitan Development Authority for development in accordance with the Statutory Plan. In the area so affected in such alignment of the Statutory Plan, road or other [Act No.8 of 2008] 29 communication network system, the area of such affected land in such alignment shall be entitled and reckoned for computation of grant of Transferable Development Right.

(5) In the case of land pooling scheme and such other similar site development,-

(i) such layout approval shall be considered only if the same is undertaken through a licenced developer;

(ii) the licenced developer shall be required to mortgage twenty five percent of the plotted saleable land to the Metropolitan Development Authority as surety for carrying out the developments and complying outer conditions as per specifications and in the given time period, in case of failure, the Metropolitan Development Authority shall be empowered to sell away the mortgaged plots and utilize the amount so realized for completion of the development works.

As per Section 20(3) of the Act mandates the Petitioner to submit an intimation to the Metropolitan Commissioner, informing about its intention to commence work by availing deemed provision. The Petitioner failed to file any document to show that it has intimated to the 3rd Respondent about commencement of work by availing deemed provision. Therefore, the contention of the Petitioner that it has commenced construction work by availing deemed permission under Section 20(3) of the HMDA Act cannot be accepted and the said contention is not sustainable in the absence of any proof much less documentary evidence.

As discussed supra, the 3rd Respondent has already rejected the application submitted by the petitioner vide proceedings dated 21.05.2021.

Therefore, the petitioner cannot contend that it had commenced work by availing deemed clause under Section 20(3) of the HMDA Act. The Petitioner herein cannot blow hot and cold together. If the Petitioner is aggrieved by the same, it has to challenge the same by way of filing an appropriate application. Impugned proceedings dated 27.05.2021 are only consequential proceedings to the proceedings dated 21.05.2021. Vide impugned proceedings, dated 27.05.2021, the 2nd Respondent has requested the Petitioner to stop the work on the ground that it is an unaurhorized construction. The Petitioner herein has submitted explanation to the said notice dated 27.05.2021 on 10.06.2021 and the same is pending with the 2nd Respondent for consideration and the 2nd Respondent has to consider the same and pass appropriate orders.

In view of the above discussion, the Petitioner herein failed to establish any ground to interfere with the impugned notice, dated 27.05.2021. As stated above, the Petitioner herein has commenced the construction in violation of the procedure laid down under the HMDA Act. However, the Petitioner herein has informed this Court and also the Respondent Nos. 2 and 3 that it has already stopped the work. Hence, the Writ Petition is liable to be dismissed.

Therefore, the Writ Petition is dismissed. However, it is left open to the Petitioner to challenge the rejection order dated 21.05.2021 issued by the 3rd respondent. The interim order dated 17.06.2021 shall stand vacated.

As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.