N.Sujatha vs State Of Telangana

These two writ petitions are filed to declare the action of the 3rd respondent in insisting the petitioners to obtain No Objection Certificate (NOC) from the 2nd respondent by way of issuing shortfall intimation letters both dated 16.01.2020 as illegal and to set aside the same and for a consequential direction to the 3rd respondent to grant permission for construction of residential building by considering the applications submitted by the petitioners both dated 08.01.2020 without insisting for NOC from the 2nd respondent.

Heard Sri P.Venkanna, learned counsel for the petitioners, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent Nos.1 and 2, Sri N.Praveen Kumar, learned standing counsel appearing for the 3rd respondent and learned Govt. Pleader for Revenue appearing for respondent No.4 in both the writ petitions in common and disposed of with the following common order.

For the sake of convenience, the respective petitioners are referred to as 'the petitioners'.

FACTS OF THE CASE

i) The petitioner in W.P.No.5799 of 2021 claims that she is the absolute owner and possessor of land bearing Plot No.1/Part admeasuring 550.44sq.yards or 460.16sq.meters in Sy.No.494/A, situated at Bandakommu, H/o Ameenpur Village and Mandal, Sanga Reddy District, having acquired the same by way of a registered gift deed bearing document No.54907 of 2019, dated 27.12.2019.

ii) The petitioner in W.P.No.5828 of 2021 claims that he is the absolute owner and possessor of Plot No.2/Part, admeasuring 5.97 sq.yards, Plot No.15, admeasuring 158.67 sq.yards, Plot No.16 admeasuring 61.66sq.yards, total admeasuring 226.30 sq.yards in Sy.No.494/A, 484/AA, situated at Bandakommu, H/o Ameenpur Village and Mandal, Sangareddy district, having acquired by way of registered gift deed document No.54908/2019, dated 27.12.2019.

iii) In proof of the same, the petitioners have filed copies of gift deeds, link documents, land conversion proceedings and encumbrance certificate etc. Both of them have submitted their applications both dated 08.01.2020 to the 3rd respondent along with all the required documents for construction of residential building.

iv) Thereafter, the 3rd respondent had issued shortfall notices dated 16.01.2020 to both the petitioners informing them to produce NOC from the District Collector as land in Sy.No.494 is notified as Government land which is included in the prohibited properties as per the records of the Registration and Stamps Department of Telangana.

v) According to the petitioners, as per the Government records, only the land admeasuring Ac.0.01 gunta in Sy.No.494 is shown as Government land.

vi) The petitioners and their predecessors are patta holders of land admeasuring Ac.1.00 Guntas in Sy.Nos.494/A and Sy.No.484/AA of the said Village.

vii) Without considering the same, the 3rd respondent is insisting the petitioners to obtain NOC from the District Collector, on the ground that the land in Sy.No.495-4 is notified as Government land, the subject site is abutting to Pochamma temple in Sy.No.484 which is also Government land and is also included in prohibited properties as per the information furnished by the Registration and Stamps Department.

viii) According to the petitioners, the said shortfall notices dated 16.01.2020 issued by the 3rd respondent are illegal and contrary to the principle laid down by this Court in Hyderabad Potteries Private Limited Vs. Collector, Hyderabad District 2001 (3) ALD 600= 2001 (3) ALT 200 and also in Sri K.Pavan Raj Vs. Municipal Corporation 2008 1 ALD 792.

ix) Since the dispute over the subject property is with the Government, this Court directed the petitioners to implead the concerned Tahsildar as party to the present writ petitions.

x) The petitioners have filed applications to implead the Tahasildar, Ammenpur Mandal in the present writ petitions and the same were allowed.

CONTENTIONS OF THE RESPONDENT NO.4/THE TAHSILDAR, AMEENPUR MANDAL

i) Learned Government Pleader has produced the written instructions of the Tahsildar, Ameenpur Mandal in both the cases.

ii)) In the said written instructions, the Tahsildar, Ameenpur Mandal has specifically mentioned that as per Khasra Pahani for the year 1954-55, the total extent of Ac.1-00 Guntas in Sy.No.494/1 is divided into two parts i.e. 494/A to the extent of Ac.0.20 Guntas, and 494/AA to the extent of Ac.0.20 Guntas and is classified as Patta land and stands in the name of Sri Nalla Lingaiah and Sy.No.494/2 is Ac.0.01 Gunta, Government land (Sarkari - Porampoke) and classified as Deval Pochamma temple situated at Ameenpur Village and Mandal.

iii) Sy.No.494/2 to the extent of Ac.0.01 Gunta, is kept under prohibitory properties list and a Pochamma temple is existing in the said land.

iv) The land in Sy.No.494/1 to an extent of Ac.0.36 Guntas of patta is kept in prohibitory properties list as the same is covered by Court order, dated 25.06.2014 in I.A.No.676 of 2014 in O.S.No.85/ 2014 before the I Additional District Judge, Medak at Sangareddy filed by Sri N.Durgareddy father of the writ petitioner. Subsequently, the said O.S.No.85 of 2014 was dismissed by the Court on 17.03.2015. He has also filed copies of the same.

CONTENTIONS OF THE RESPONDENT NO.5/ AMEENPUR MUNICIPALITY

i) On receipt of the applications filed by the petitioners seeking building permission, their subordinates have observed that there were existing columns for cellar purpose which were commenced by the petitioners long back on the site under reference and it is beside the land of Pochamma temple.

ii) The same was stopped by the then Ameenpur Grampanchayat on receiving a complaint from the local residents. Moreover, while taking the measurements, some local residents have objected for taking the site measurements on the ground that there is a Pochamma temple land beside the site.

iii) On verification of the documents, shortfall notices dated 16.01.2020, 17.12.2020 and 05.04.2021 were issued to the petitioners with a request to submit NOC to be obtained from the Collector, Sangareddy District, as the said patta land in Sy.No.494 is notified as Government land and included in prohibited properties.

iv) As per the records of Registration and Stamps Department, the site is abutting to Pochamma temple in Sy.No.484 which is also a Government land.

v) Therefore, the 3rd respondent has requested the petitioners to produce NOC from the District Collector.

vi) Instead of furnishing the same, the petitioners are insisting the 3rd respondent to process their applications and grant building permission for construction of residential houses.

vii) With the said submissions, both the Government Pleader for Revenue and learned standing counsel appearing for the 3rd respondent sought to dismiss the present writ petitions.

FINDINGS OF THE COURT

As stated above, the petitioner in W.P.No.5828 of 2021 is the son and the petitioner in W.P.No.5799 of 2021 is the mother. Sri N.Durga Reddy is the father and husband of the above said petitioners respectively. The petitioners claim that they are the owners of the above said land and both of them are claiming right over the above said subject property under registered gift deeds bearing document Nos.54908 of 2019 and 54907 of 2019 both dated 27.12.2019. The said two gift deeds were executed by Sri N.Durga Reddy. In the said gift deeds, the said N.Durga Reddy, the donee, mentioned that he is the absolute owner of the subject property by virtue of two sale deeds and one registered release deed. Thereafter, both the petitioners have submitted applications dated 08.01.2021 to the 3rd respondent with a request to accord permission for construction of a residential building. Thereafter, the 3rd respondent has issued shortfall notices dated 16.01.2020 stating that the said part of the land in Sy.No.494 is notified as Government land, the same is abutting Pochamma temple situated in Sy.No.484 which is also a Government land.

As per the written instructions of the 4th respondent, the total land in Sy.No.494/1 is Ac.1-00 Guntas. Out of the said Ac.1-00 Guntas, the land admeasuring Ac.0.01 Gunta in Sy.No.494/2 is a Government land (Sarkari porampoke) and Pochamma temple is situated in the said land. The said Ac.0.01 Gunta of land in Sy.No.494/2 is kept under prohibitory properties. As per the written instructions of the 3rd respondent, the land admeasuring Ac.0.36 Guntas in Sy.No.494/1 was also kept under prohibitory properties since it is covered by the Court order in I.A.No.676 of 2014 in O.S.No.85 of 2014. It is relevant to note that the petitioners herein have not filed the copies of the orders in the said suit but the 4th respondent himself filed a copy of the judgment dated 17.03.2015 in O.S.No.85 of 2014.

A perusal of the judgment in the said suit would reveal that the same was filed by Sri N.Durga Reddy, father and husband of the respective petitioners against one M.Venkatanarayana. A memo was filed by the plaintiff not pressing the said suit as the matter was settled outside the Court by the parties and the said suit was dismissed as not pressed. Therefore, in view of the same, the 4th respondent-Tahsildar, Ameenpur Mandal, cannot claim that the said property admeasuring Ac.0.36 Guntas in Sy.No.494/1 is kept under prohibitory properties list since it is covered by the Court order in the above said suit. Therefore, the said contention of the 4th respondent is not acceptable.

As contended by the 4th respondent, land admeasuring Ac.0.01 Gunta in Sy.No.494/2 is a Government land (Sarkari porampoke) and the same is kept under prohibitory properties in which Pochamma temple is situated. Likewise, the Ac.0.04 Guntas of land is in Sy.No.484/2 which was classified as Government Sarkari porampoke and the same is also kept under the prohibitory properties and Pochamma temple is situated in the said land. Even as per the counter filed by the 3rd respondent-Municipality, the petitioners raised columns for cellar purpose before making applications with the 3rd respondent for construction of a residential building. The then Gram Panchayat, Ameenpur had stopped the said construction on receiving complaints from local residents. On receipt of the applications from the petitioners, the subordinates of the 3rd respondent Municipality on field verification observed that there are existing columns for cellar purpose which were commenced by the petitioners long back in the subject site. Pochamma temple is also existing. The residents of the said locality have raised objections stating that the subject land covered by the Government land wherein Pochamma temple is situated.

It is not in dispute that there is Pochamma temple in the said land. It is also not in dispute that the residents have raised objections to the constructions started by the petitioners by raising columns for cellar purpose. Therefore, the then Gram Panchayat had stopped the construction on the complaints received by the residents. Thus, there is a dispute with regard to the subject property between the petitioners and the Government with regard to land in Sy.No.494/2 and 484/2.

However, the 3rd respondent has to verify, prima facie, title of the petitioners. It cannot insist for proof of NOC, to be obtained from the District Collector. The said principle was also laid by this Court in Hyderabad Potteries (supra) and followed the same in Sri K.Pavan Raj (supra).

The above stated discussion would reveal that after stopping work by the then Gram Panchayat, Ameenpur, it appears the petitioners have obtained the above said registered gift deeds from Sri N.Durga Reddy, father and husband of the petitioners respectively and on the strength of the said gift deeds, they have applied for permission for construction.

In view of the fact that Pochamma temple is existing in the said land and the residents are making complaints against the petitioners herein to put a quietus to the litigation, it is just and necessary to conduct survey and demarcate the properties of the petitioners and the Government land in both the Survey Nos.484/2 and 494/2 including the land in which the said Pochamma temple is situated. For the said purpose, this Court directed the petitioners to implead the Tahsildar concerned as party. Accordingly, the petitioners herein have impleaded Tahsildar, Ameenpur as a party in the present writ petitions.

The petitioners in both the writ petitions have filed petitions vide I.A.Nos.3 of 2021 seeking to receive report of the Technical Officer of 3rd respondent dated 16.01.2020 as additional material and the same were allowed. In the said report, the Technical Officer of the 3rd respondent has stated that he has inspected the said site and noticed that the applicant has not commenced the proposed construction work and the site measurements of ground position are tallied with that of documents. The said report shows that the Technical Officer of the 3rd respondent has suggested approval, but he is not competent to decide the above said issues including the land of the petitioners and the land of the Government in the above two survey numbers. Therefore, based on the said report, the 3rd respondent will not be in a position to accord permission to the petitioners for construction.

In view of the above said discussion, both the Writ Petitions are disposed of directing the 4th respondent i.e. Tahsildar, Ameenpur Mandal, Sanga Reddy District, to conduct survey with the help of Mandal Surveyor or any higher official other than the Mandal Surveyor to demarcate the land belonging to both the petitioners in Sy.No.484/2 and 494/2 admeasuring Ac.0.04 Guntas of Government land and also to demarcate the land where Pochamma temple is situated, by putting the petitioners, the 3rd respondent/ Municipality and other interested parties on notice and affording them an opportunity of hearing.

15-a) The 4th respondent/The Tahsildar, Ameenpur Mandal, shall furnish a copy of the report to both the petitioners herein and 3rd respondent-Municipality.

15-b) Based on the said report, the 3rd respondent is directed to consider the applications dated 08.01.2020 submitted by both the petitioners for construction of residential buildings without insisting the petitioners to produce NOC from the 2nd respondent-the District Collector.

15-c) The respondent Nos.3 and 4 shall complete the said exercise within eight (8) weeks from the date of receipt of a copy of this order.

15-d) There is no order as to costs.

15-e) As a sequel, miscellaneous petitions, if any, pending in these Writ Petitions shall stand closed.