W.P. Nos. 766 and 8928 of 2011 and 9664 of 2017. Case: Hussain Bee and Ors. Vs Prl. Secy., Revenue Dept. and Ors.. High Court of Andhra Pradesh (India)
| Case Number | W.P. Nos. 766 and 8928 of 2011 and 9664 of 2017 |
| Judges | M.S. Ramachandra Rao, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 107, 145, 146; Constitution of India - Article 162; Displaced Persons Compensation and Rehabilitation Act, 1954 [Repealed] - Section 20; Greater Hyderabad Municipal Corporation Act, 1955 - Sections 388, 428, 429, 62, 72; Indian Penal Code 1860, (IPC) - Sections 191, 192, 198, 199, 200 |
| Judgement Date | April 25, 2017 |
| Court | High Court of Andhra Pradesh (India) |
Order:
M.S. Ramachandra Rao, J.
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In all these Writ petitions, the subject land is one and the same and the parties are common. So they are being disposed off by this Common order.
W.P. No. 766 of 2011
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In W.P. No. 766 of 2011, the validity of exercise of power of the No Objection Certificate (NOC) Committee constituted by the then State Government of Andhra Pradesh vide G.O. Ms. No. 1133 Revenue (Assn. III) Department dt. 13-06-2005 as modified by G.O. Ms. No. 2111 Revenue (Assn. III) Department dt. 05-12-2005 and G.O. Ms. No. 93 Revenue (Assn. III) Department dt. 28-01-2006, is in question.
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The petitioner in W.P. No. 766 of 2011 claims to be the owner of 5262 sq yds forming part of Sy. No. 284/6 corresponding to T.S. No. 15, Block-B, Ward No. 21, Nanal Nagar, Gudimalkapur, Hyderabad. This land was originally evacuee property. It is part of 10,525 sq yds purchased by one Smt. Prem Malhotra in an auction conducted by the Managing Officer, Regional Settlement Commission, Bombay to whom a certificate dt. 26.9.1961 was issued under Sec.20 of the Displaced Persons (Compensation and rehabilitation) Act, 1954. This land was sold by Smt. Prem Malhotra in three bits to three persons by name, P. Varalakshmi, C. Venkataraju and U. Bangarraju of 4120 sq yds, 4120 sq yds and 2105 sq yds respectively. C. Venkata Raju and U. Bangarraju sold 3157 sq yds and 2105 sq yds respectively to Smt. K. Devi and one Basanth Devi under two separate registered sale deeds Doc. Nos. 2540/1965 and Doc. No. 2539/1965. The petitioner purchased these two bits totalling 5262 sq yds from Smt. K.Devi and Basanth Devi.
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Petitioner alleges that respondent Nos. 13 to 15 in W.P. No. 766 of 2011 started constructing a shed in an extent of 500 sq yds out of the above land claimed by the petitioner; that she came to know, on enquiry that three No Objection Certificates being No. N1/1069/2009, N1/1070/2009 and N1/1071/2009 were issued on 08-12-2009 in favour of respondent Nos. 13 to 15 for 1086 sq meters each by the NOC Committee consisting of respondent Nos. 6 to 10 on recommendation of respondent Nos. 11 and 12. She alleged that in the said proceedings, the respondent Nos. 6 to 10 had: "(i) gone into issue of title to the property; (ii) gone into the question whether the land was originally evacuee property or not; (iii) claimed to have considered objections filed by the petitioner (which the petitioner never filed); (iv) accepted as genuine certain sale deeds produced by respondent Nos. 13 to 15 which were fabricated without verifying the same with the concerned Sub Registrar of Assurances; and (v) accepted the title of respondent Nos. 13 to 15 while rejecting the petitioner's title to the land and on the basis of the proceedings dt. 08-12-2009 issued by the respondent Nos. 6 to 10, the respondent Nos. 13 to 15 grabbed the land of the petitioner."
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I am not going to decide in these Writ Petitions whether the petitioner has title to the above land or respondent Nos. 13 to 15, and I will only consider the legality and propriety of action of respondent Nos. 6 to 9, who were members of the NOC Committee, in issuing the impugned endorsements.
THE NOC COMMITTEE's ORIGIN
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Before going into the said aspect, it is important to consider what G.O. Ms. No. 1133 Revenue (Assn. III) Department dt. 13-06-2005, G.O. Ms. No. 2111 Revenue (Assn. III) Department dt. 05-12-2005 and G.O. Ms. No. 93 Revenue (Assn. III) Department dt. 28-01-2006 deal with.
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G.O. Ms. No. 1133 Revenue (Assn. III) Department dt. 13-06-2005 was issued by the State Government of Andhra Pradesh in exercise of its executive power under Article 162 of the Constitution of India for issuance of " No Objection Certificate" for construction of houses and apartments and issue of Town Survey Land Register in continuation of the then existing system of issuing NOC for building permission by constituting a Committee consisting of (a) Special Chief Secretary (Revenue), (b) Commissioner of Municipal Corporation of Hyderabad, (c) Vice Chairman, Hyderabad Urban Development Authority and (d) Commissioner, Survey, Settlement and Land Records. It was to meet once in 15 days and dispose of all pending cases.
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This was modified vide G.O. Ms. No. 2111 Revenue (Assn. III) Department dt. 05-12-2005 by reconstituting the NOC Committee with the (a) District Collector, Hyderabad as Convenor, (b) Commissioner, Municipal Corporation of Hyderabad, (c) Vice Chairman, Urban Development Authority, (d) Dy. Director, Survey, Settlement and Land Records, Hyderabad and (e) Special Officer, Urban Land Ceiling, Hyderabad as members.
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There was a further modification made by the State Government to the NOC Committee constitution by including the Joint Collector, Hyderabad as Member-Convenor and designating the Collector, Hyderabad as the Chairman of the Committee vide G.O. Ms. No. 93 Revenue (Assn. III) Department dt. 28-01-2006.
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It is pertinent to note that no guidelines were laid down by the Government as to how this NOC committee was to exercise it's power.
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It is not in dispute that the NOC Committee, which passed the NOC Endorsements dt. 08-12-2009 granting NOCs to respondent Nos. 13 to 15 vide proceedings No. N1/1069/2009 to N1/1071/2009, consisted of respondent Nos. 6 to 9 of whom respondent No. 6/District Collector,
Hyderabad was the Chairman, respondent No. 7/Joint Collector,Hyderabad Hyderabad -
According to the counter-affidavit filed on behalf of respondent Nos. 1 to 4 in W.P. No. 766 of 2011 by the then Collector, Hyderabad, the above NOC Committee was constituted by the Government to examine any requests for issuance of NOCs to be forwarded to the Greater Hyderabad Municipal Corporation before whom applications seeking permission for construction are made by individuals.
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According to the 6th respondent in W.P. No. 766 of 2011, who was the District Collector,
Hyderabad PROVISIONS OF THE GREATER HYDERABAD MUNICIPAL CORPORATION ACT, 1955:
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Every person who intends to erect a building is required to give to the Commissioner of the Hyderabad Municipal Corporation a notice under Section 428 of the Act of his intention to do so specifying the position of the building intended to be erected, the description of the building, the purpose for which it is intended, its dimensions and the name of the person whom he intends to employ to supervise its erection. Under Section 429 of the Act, the Commissioner may ask him to furnish documents mentioned in clauses (a) to (d) of the said provisions. Clause (aa) of Section 429 empowers the Commissioner to ask the applicant to produce copy of title deed of the land duly attested by the Gazetted Officer of the Government together with an Urban Land Ceiling Clearance Certificate or as the case may be an affidavit referred to in Section 388.
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The Urban Land (Ceiling and Regulation) Act, 1973 was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and the said Repeal Act was adopted by the then State Government of Andhra Pradesh vide G.O. Ms. No. 615 Revenue (UC-I) Department dt. 26-04-2008 w.e.f. 27-03-2008. Thus after this date, there is no question of getting any clearance certificate from the Government that the land is non-surplus Ceiling land under the Act.
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Bye law No. 4 (2) of the Municipal Corporation Building Byelaws, 1981 enjoins every application for building permission to be accompanied by documents in proof of ownership such as attested copy of original sale/lease deed, attested copy of the Revenue Survey Sheet/Municipal Survey Sheet with mutation record number or affidavit or other document acceptable to the Commissioner.
THE DECISION IN
HYDERABAD POTTERIES CASE -
In Hyderabad Potteries Pvt. Ltd. v. Collector, Hyderabad 2001 (3) ALD 600, a learned Single Judge of this Court held that the Municipal Commissioner is required to make pragmatic assessment of the material available on record and decide the question of prima facie title and lawful possession of the applicant, that applications for grant of permission to build cannot be rejected solely on the basis of Town Survey Land Record entries, and that though the Government of Andhra Pradesh had constituted a Committee to examine and process building plans vide G.O. Ms. No. 582 Municipal Administration dt. 21-05-1993 and recommend to the Commissioner for according building permission, its recommendations were only advisory and any objection raised by a member of the committee is not a ground to reject the application for grant of permission. The Court held that decision to grant permission itself would not confer any title upon the applicant, nor it would take away the rights of the objector to such permission, be it Government or any individual, for asserting their right, title and interest in the land in respect of which permission has been granted and dispute the title in any manner known to law. It held that the Commissioner is...
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