THE HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition Nos.17765 and 17693 of 2008 COMMON ORDER : Both the Writ Petitions are connected, involving common questions of fact and law, therefore being disposed of with the consent of both the counsel by this common order. These Writ Petitions have been filed seeking a writ of mandamus against the respondent-municipality not to interfere with the construction of compound walls around an extent of Ac.5.00 guntas of land of each of the petitioners situated in Sy.No.158/AA2 and Sy.No.158/AA1, respectively. The petitioners claim to be the owners and possessors of an extent of Acs.5.00 guntas of land each, situate in Sy.No.158/AA2 (W.P.No.17765 of 2008) and Sy.No.158/AA1 (W.P.No.17693 of 2008) of Zaheerabad. It is the case of the petitioners that their father Syed Osman Ali was the original owner and pattedar of the said land of an extent of Ac.10.00 guntas situated in Sy.No.158 and after his demise, they inherited Acs.5.00 guntas each and the same was sub-divided as Sy.Nos.158/AA2 and 158/AA1. The names of the petitioners were also mutated in the revenue records in the pattedar passbooks and the pahanies. In order to protect the land, they made applications, dated 22- 05-2008 to the respondent-municipality seeking permission to construct compound walls. As they did not obtain any orders sanctioning the permission for considerable time, they undertook the construction in terms of the deemed permission under Section 214 of the A.P. Municipalities Act. During such construction, the respondent caused obstruction thereto and without heeding to the objection, it was persisted to stop the construction. The petitioners, therefore, approached this Court by means of these writ petitions for the aforesaid reliefs. Heard Sri M.V.S.Suresh Kumar, learned counsel for the petitioners and Smt.Shanthi Neelam, learned standing counsel for the respondent. The learned counsel for the petitioners would contend that the petitioners undertook construction strictly as per law and the respondent has no manner of right to obstruct it. The petitioners are the lawful owners holding title over the respective lands. The application filed on 22-05-2008 seeking permission has not been considered, therefore the petitioners are entitled to go ahead with the construction as provided under Section 214 of the Act. A counter-affidavit has been filed by the Municipal Commissioner denying that the petitioners are the owners and possessors of the subject land. It is stated that the subject land is Government and that it has been shown in the revenue records as khata local fund. It is further stated that the applications of the petitioners, dated 22-05-2008 were rejected by notice dated 31-05-2008. Since the petitioners are not the owners of the subject land, they are not entitled to make any construction. I have considered the rival contentions and perused the material on record. Section 209 of the Act provides that if any person intends to construct or re-construct a building, he should make an application in writing to the Commissioner for his approval of the site, together with a site plan of the land and an application in writing for permission to execute the work. Clause (c) of Sub-Section (1) of Section 209 provides that an application shall include a copy of the title deed of the land duly attested by a Gazetted Officer of the Government. The explanation to the said sub- section provides that “building” in the sub-section shall include a wall or fence of whatever height bounding or abutting on any public street. Section 212 provides that within sixty days from the receipt of any application made under Section 209, the Commissioner shall by a written order, either approve the site or refuse on one or more of the grounds mentioned in Section 215 to approve the site. Section 213 provides that within sixty days of the application made under Section 209 for permission to execute any work or any information or documents or further information or documents required under rules or bye laws, the Commissioner shall by a written order either grant such permission or refuse on one or more of the grounds mentioned in Section 215 to grant it. Section 214 provides that if within the period prescribed by Section 212 or 213, the Commissioner has neither given nor refused his approval, such approval or permission shall be deemed to have been given and the applicant may proceed to execute the work, however he shall not contravene any of the provisions of the Act or the Rules or bye- laws made under the Act. A perusal of the aforesaid provisions would clearly show that while a person is under a statutory obligation to obtain permission before any construction is undertaken, it is also permissible for him to undertake construction in case the competent authority has not either given or refused its approval within the stipulated time. In the instant case, the petitioners discharged their obligation by making the required applications on 22-05-2008. Therefore, the Commissioner ought to have granted or refused approval within sixty days thereof. It is the specific case of the petitioners that no such orders were passed. In the counter-affidavit sworn to by one, R.Kistaiah, who was said to be working as Municipal Commissioner, it was mentioned that the application was rejected by issuing notice, dated 31-05-2008. In view of the controversy whether the said order was passed, this Court directed the respondent to produce the concerned record and file additional counter-affidavit. Accordingly, one, G.Rajender Kumar, who is said to be the present Commissioner, has produced the record and filed his affidavit. A perusal of the record produced discloses that the said order dated 31-05-2008 was not even signed by the Commissioner. The record does not disclose that the said order has been served on the petitioners. In his affidavit, the deponent has admitted these facts. He however, has stated that the original file was handed over to the former standing counsel and as per the information given to him by his office the order dated 31-05-2008 was duly signed by his predecessor and the same was given to the former standing counsel. He has, however, admitted that when on contacting his former standing counsel, he was informed that no such file was given to him. It is, therefore, obvious that the stand taken by the respondent is a ruse to show rejection, which in fact has not been done. The purport of the counter-affidavit is that the applications were rejected purportedly on the ground that the subject land belongs to the respondent-municipality. It may be mentioned that no material has been produced in support of the said contention. The petitioners have drawn the attention of this Court to the previous litigation wherein there is a reference to the status of the subject land. A suit O.S.No.81 of 1987, filed in the Court of Subordinate Judge, Sanga Reddy, filed by one, Syed Mahmood, in which the respondent-municipality and the Collector, Medak District were made as defendants. The respondent-municipality filed its written statement, wherein it was clearly averred that the land in Sy.No.158/2 admeasuring an extent of Ac.10.00 guntas belonged to one, Osman Ali, son of Burhanuddin. In W.P.No.2238 of 1981, filed by the said Syed Mahmood impleading the District Collector, Medak and others as respondents, a counter-affidavit was filed by the P.A. to Collector in which it was categorically stated that Osman Ali, son of Burhanuddin was the pattedar of land in Sy.No.158/2. In yet another Writ Petition No.9623 of 1981 between Syed Mahmood and the Collector, Medak District, it was again reiterated that Osman Ali was the pattedar of the said land. In the light of this material, more particularly the written statement of the respondent-municipality, it is apparent that the father of the petitioners was pattedar of the subject land. It is, therefore, beyond comprehension how the respondent can now take up a contrary stand by claiming that the subject land belongs to the Municipality. In any event, it is not for the respondent-municipality, nor its Commissioner to go into the title of an applicant. It is sufficient if an applicant prima facie satisfies his title to the property. On a consideration of the entire material as above, it cannot be said that the petitioners have undertaken any construction illegally. I am of the view that the respondent is not justified in obstructing the construction undertaken by the petitioners. In the circumstances, the Writ Petitions are allowed. No costs. ________________ NOUSHAD ALI, J. 28th February, 2011. skmr THE HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition Nos.17765 and 17693 of 2008 Date : 28-02-2011 W.P. No.17765 of 2008 Between : Syed Masood Ali .. Petitioner and Municipality Zahirabad, rep. by its Commissioner, Zahirabad, Medak District .. Respondent AND W.P. No. 17693 of 2008 Between : Syed Khursheed Ali .. Petitioner and Zahirabad Municipality, rep. by its Commissioner, Zahirabad, Medak District .. Respondent