IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 25744 of 2008 Between: 1 Mohd. Mushtak S/o.Mohd. Yousuf R/o.H.No.3-9-60/1, Syed Zalal Guarden, West Maredpally, Secunderabad, Hyderabad. 2 Mohd. Ashfaq S/o.Mohd. Yousuf R/o.H.No.3-9-60/1, Syed Zalal Guarden, West Maredpally, Secunderabad, Hyderabad. 3 Mohd. Feroz S/o.Mohd. Yousuf R/o.H.No.3-9-60/1, Syed Zalal Guarden, West Maredpally, Secunderabad, Hyderabad. ..... PETITIONER(S) AND 1The Commissioner, Greater Hyderabad Municipal Corporation, MCH Buildings, Hyderabad. 2The Deputy Commissioner, Circle No.10, (Old Circle No.5) Greater Hyderabad Municipal Corporation, Khairatabad, Hyderabad. 3The Asst. City Planner, Circle No.10, (Old Circle No.5) Greater Hyderabad Municipal Corporation, Khairatabad, Hyderabad. 4The Inspector General, Registration and Stamps, Government of Andhra Pradesh, Musheerabad, Hyderabad. 5The District Registrar, Registration and Stamps, Red Hills, Hyderabad. 6The Sub-Registrar, Registration and Stamps, Banjara Hills, Hyderabad. 7Sri.P.Prithvidhar Reddy S/o. P.Manik Reddy R/o.H.No.4-7-323, Esamia Bazar, Hyderabad. 8Smt.P.Bhagya W/o. P.Manik Reddy R/o.H.No.4-7-323, Esamia Bazar, Hyderabad. 9B.Anirudh Reddy S/o.late Deepak Kumar Reddy R/o. Plot No.3, Green View Enclave, Manovikas Nagar, Boinpally, Secunderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction, more particularly, one in the nature of Writ of Mandamus calling for the records relating to the Permit No.162/76 and 162/77 granted by the 3rd respondent in Sy.No. 129/45, TS No.17/1, in H.No.8-2-686/A/1, 8-2-686/A/2 and 8-2-686/A3, Banjara Hills, Hyderabad as illegal, arbitrary and further direct the respondents to cancel the permission granted to the Respondent Nos. 7 to 9 forthwith and pass such other order or orders. Counsel for the Petitioners : MR. V.VENKATARAMANA Counsel for the Respondents : (SC FOR MCH CIRCLES 3&5)KALPANA EKBOTE The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.25744 OF 2008 ORDER : The respondents 1 to 3 herein (Greater Hyderabad Municipal Corporation) granted building permit bearing No.162/77 of 2008, dated 4.8.2008 in favour of the respondent No.9 permitting construction in House No.8-2-686/B/S/5-6, Banjara Hills, Hyderabad. Similar permit was granted vide Permit No.162/76 of 2008 in favour of the respondents 7 & 8 in respect of House No. 8-2-686/B/S/6-7. The above said building permits are sought to be cancelled in this writ petition contending that the documents under which the respondents 7 to 9 claim to have acquired title in respect of the properties in question were brought into existence by playing fraud and no valid title was passed on to them. The case of the petitioners :- One Captain Syed Gulam Moinuddin was the original owner of Ac.4.20 guntas of land situated in Sy.No.129/45 of Shaikpet Village. During his lifetime he sold away an extent of Ac.3.04 guntas. His only son Syed Moshin Moinuddin succeeded to the rest of the land admeasuring Ac.1.16 guntas. The said Syed Moshin Moinuddin got constructed three rooms in the said land of Ac.1.16 guntas and the same were assigned House Numbers 8-2-686/A/1, 8-2-686/A2 and 8- 2-686/A/3 by the Municipal Corporation of Hyderabad. The said Syed Moshin Moinuddin executed an irrevocable General Power of Attorney dated 16.03.1990 in favour of one Mohd. Jaweed authorizing him to act on his behalf in respect of Ac.1.16 guntas of land situated in Sy.No.129/45 (co-related to new Sy.No.339, Banjara Hills Road No.12, Urban Taluq, Shaikpet Village, Hyderabad). Pursuant thereto, the said General Power of Attorney-holder Mohd. Jaweed executed three agreements of sale dated 18.08.2007 in favour of the three petitioners herein in respect of three houses bearing Nos. 8-2-686/A/1, 8-2- 686/A2 and 8-2-686/A/3 respectively. The petitioners claimed that they were put in possession and that the entire land purchased by them is a single piece without any partition and that the three rooms got constructed by their vendor were given three house numbers by the Corporation. In the schedule to the said Agreements of Sale the house properties were shown to have been situated in TS.No.17/1, Ward No.12, Block-K, Sy.No.129/45 of Shaikpet Village at Road No.12, Banjara Hills, Hyderabad. It is alleged by the petitioners that having noticed that some unauthorized constructions were going on in the above said properties, they gave a compliant to the Corporation on 11.06.2008 requesting to take necessary action. After pursuing the matter under the Right to Information Act, 2005, the petitioners ultimately came to know that the respondents 7 to 9 were granted the impugned building permits dated 4.8.2008 wrongly showing the house numbers as 8-2-686/B/S/5-6 and 8-2-686/B/S/6-7. It is also found by them that on 2.5.1997 three sale deeds were executed by one Mohd. Jaweed Ahmed Siddiqui and five others in respect of 1448 sq. yards of land covered by a compound wall situated in Sy.No.128, Road No.12, Banjara Hills, Shaikpet Village, thereby conveying 482.66 sq. yards each in favour of (1) Smt. B. Anupama (2) Smt. A. Swetha & Smt. B. Anupama and (3) Smt. A. Swetha. In the schedule to the said sale deeds, each bit of land admeasuring 482.66 sq. yards was shown to have been assigned the MCH Number 8-2-686/B/S/5, 8-2-686/B/S/6 and 8-2-686/B/S/7. The said sale deeds were registered long thereafter in the year 2002 as Document Nos.566, 567 & 568 of 2002. Thereafter, the said three bits of land bearing house numbers 8-2- 686/B/S/5, 8-2-686/B/S/6 and 8-2-686/B/S/7 were sold in favour of (1) K. Papireddy (2) K. Venkatarami Reddy (3) P. Manik Reddy and S. Sathish under three Agreements of Sale-cum- General Power of Attorney, dated 7.10.2005 executed by (1) Smt. B. Anupama (2) Smt. A. Swetha and Smt. B. Anupama, and (3) Smt. A. Swetha. In the schedule to the said three Agreements of Sale- cum-General Power of Attorney, while mentioning the respective house numbers the property was shown to have been situated in TS.No.17/1, Block-K, Ward No.12, co-relating to Sy.No.129/45 of Shaikpet Village, Road No.12, Banjara Hills. In turn, the said GPA holders executed Registered Sale Deeds dated 10.07.2007 in favour of (1) Smt. Jyothi W/o. Papireddy and Sai Vachan S/o. Papireddy (2) S. Sathish (3) P. Pridvidhar Reddy S/o. Manik Reddy and Smt. Bhagya, W/o. Manik Reddy (respondents 7 & 8 herein). In all the three sale deeds, three persons claiming to be the sons of Captain Syed Gulam Moinuddin represented by their GPA holders also joined as vendors. In the schedule to the said Registered Sale Deeds also, the respective houses i.e., 8-2-686/B/S/5, 8-2-686-B/S/6 and 8-2-686/B/S/7 were shown to have been situated in TS.No.17/1, Block-K, Ward No.12 co-relating to Sy.No.129/45 of Shaikpet Village, Road No.12, Banjara Hills. The contention of the petitioners is that the transactions emanating from the sale deeds dated 2.5.1997 executed by Mohd. Jaweed Ahmed Siddiqui and five others were only in respect of Sy.No.128 and they had nothing to do with Sy.No.129/45 in respect of which the petitioners are holding title under the Agreements of Sale, dated 18.08.2007. It is alleged that Sy.No.128 is located on the main road of Road No.12, whereas Sy.No.129/45 is located inside the common Road No.12 and the distance between the said survey numbers is more than 1 Km. It is also alleged that the Agreements of Sale-cum-General Power of Attorney, dated 7.10.2005 and the subsequent Registered Sale Deeds dated 10.7.2007 were brought into existence by playing fraud and showing Sy.No.129/45 in the documents instead of Sy.No.128. It is also alleged that the sale deeds dated 10.07.2007 did not contain the thumb impressions of the executants and even their photos and signatures were absent and the link documents were not enclosed. Thus it is contended that no valid title was conveyed on under the above said documents and consequently the impugned construction permits granted in favour of the respondents 7 to 9 were illegal and liable to be set aside. Hence, the present writ petition seeking a Mandamus to call for the records relating to the Permit Nos.162/76 and 162/77 granted by the 3rd respondent in Sy.No.129/45, TS.No.17/1 in respect of House Nos.8-2- 686/A/1, 8-2-686/A2 and 8-2-686/A/3 of Banjara Hills, Hyderabad and declare the permission grated to the respondents 7 & 8 as arbitrary and illegal. Counter-affidavit filed on behalf of the respondents 1 to 3 (Greater Hyderabad Municipal Corporation):- All the plots in which the building permits are granted are part and parcel of one premises and the building permissions have been granted after obtaining the necessary approval and following the procedure prescribed under the HMC Act, 1955. However as some deviations were observed in the constructions being made, notice under Section 440 of Hyderabad Municipal Corporations Act, 1955 (for short, ‘HMC Act, 1955’), was served on Respondent No.10 and the further enquiry is pending. The case of the respondents 7 to 13:- Captain Syed Gulam Moinuddin was the original owner of Ac.4.20 guntas of land situated in Sy.No.129/45. He initially sold Ac.3.04 guntas to various purchasers. Subsequently during his lifetime the remaining Ac.1.16 guntas was also sold to one Mohd. Moshin Ali shah under Registered Sale Deed, dated 24.05.1968. The said Mohd. Moshin Ali shah died in 1974 leaving behind his wife, daughter and son Faizal Ali shah. Thereafter certain individuals namely O.S. Reddy and six others attempted to encroach upon the land in Sy.No.129/45 which was purchased and possessed by the legal heirs of Mohd. Moshin Ali shah. In the circumstances, the legal heirs filed O.S.No.3129 of 1981 on the file of the Court of the III-Assistant Judge, City Civil Court, Hyderabad, for perpetual injunction against O.S. Reddy and others. During the pendency of O.S.No.3129 of 1981, a temporary injunction was granted in favour of the legal heirs of Mohd. Moshin Ali shah and the same was confirmed by this Court in a Revision petition. The said defendants O.S. Reddy and others filed O.S.No.322 of 1983 on the file of the Court of the District Judge, Rangareddy against the legal heirs of Mohd. Moshin Ali Shah for declaration of title and recovery of possession in respect of the very same land claiming that the said property was situated in Sy.No.128 and that they were holding title under a Sale Deed, dated 12.03.1981. O.S.No.322 of 1983 filed by O.S. Reddy and others for declaration of title was renumbered as O.S.No.41 of 1993 on the file of the Court of the Additional District & Sessions Judge, Rangareddy District and after a prolonged litigation the parties entered into a compromise agreeing to sell the suit property to third parties. Accordingly, the purchasers were impleaded as defendants 4 to 9 to O.S.No.41 of 1993 and the sale consideration received from them was shared by both the parties i.e., the plaintiffs and the defendants 1 to 3. I.A.No.116 of 1995 was filed by both parties under Order 23 Rule 3 of C.P.C. stating that the plaintiffs and the defendants 1 to 3 had given up all their claims, right, title and interest in the suit property in favour of the purchasers (defendants 4 to 9) and that the suit property should unconditionally vest with them. The said compromise petition was allowed and accordingly the suit was decreed on 26.07.1995 in terms of the compromise. The suit property in O.S.No.41 of 1993 was shown to have been situated in Sy.No.128, Road No.12, Banjara Hills and the defendants 4 to 9 / purchasers under the said compromise decree were Mohd. Jaweed Ahmed Siddiqui and five others who had subsequently executed three Sale Deeds dated 2.5.1997 registered in 2002 as Document Nos.566, 567 & 568 of 2002. Mohd. Jaweed Ahmed Siddiqui and five others after acquiring title under the compromise decree in O.S.No.41 of 1993, obtained building permissions on the extent of Ac.1.16 guntas shown as Sy.No.129/45 and also Sy.No.128. On construction being made by them, the three houses were assigned the municipal numbers 8-2-686/B/S/1 to 8-2-686/B/S/7. Out of the said houses, House No.8-2-686/B/S/6 was purchased by Smt. A. Swetha under Registered Sale Deed No.568/2002 (Sale Deed dated 2.5.1997) and she in turn transferred the said house in favour of Sri T. Manik Reddy and S. Sathish vide Registered Agreement of Sale-cum- General Power of Attorney dated 7.10.2005. Similarly, H.No.8-2- 686/B/S/7 was transferred to Smt. Anupama under Registered Sale Deed No.566/2002 and she in turn transferred to Sri K.Papi Reddy vide Agreement of Sale-cum-General Power of Attorney dated 7.10.2005. The said two houses were purchased by the respondents 7 and 8 under Registered Sale Deeds dated 10.07.2007. Thereafter, having obtained from the Corporation the required permission vide impugned permit No.162/76, dated 4.8.2008 the respondents 7 and 8 raised structures. The respondent No.10 claims to have purchased the premises bearing No.8-2-686/B/S/7 under an Agreement of Sale-cum-GPA, dated 7.10.2005 executed by Smt. B. Anupama. He was granted construction permission vide Permit No.168/78 of 2008, dated 3.6.2008. Subsequently the respondent No.10 acting as GPA of his vendor Smt. B.Anupama and other parties sold a portion of the above said house in favour of the respondent No.11 and another under a Registered Sale Deed, dated 10.07.2005. It is stated that the respondents 10 and 11 having commenced construction had already laid three slabs and except plastering of the walls and installation of electrical works the entire construction was completed. It is contended that their vendor Smt. B. Anupama acquired valid title through her vendors Mohd. Moshin Ahmed Siddiqui and others, who were rightful owners by virtue of the compromise decree in O.S.No.41 of 1993 as explained in the counter-affidavit filed on behalf of the respondents 7 and 8. The respondent No.12 claims to have purchased the premises bearing No.8-2-686/B/S/3 admeasuring 600 sq. yards in Sy.No.129/45 under a Registered Sale Deed dated 5.7.2007 executed by one Nawab Shahtaz Shaji-ul-Mulk and Dr. Nawab Shafi-ul-Mulk. Another sale deed dated 5.7.2007 was executed by the said vendors in favour of the respondent No.13 in respect of the premises bearing No.8-2-686/B/S/4 in Sy.No.129/45 admeasuring 600 sq. yards. It is stated that their predecessors-in-title were granted construction permission vide Permit No.128/87 of 2006, dated 6.1.2006 and Permit No.128/88 of 2006 dated 7.1.2006 and the constructions were almost over. It is claimed that their vendors Nawab Shahtaz Shaji-ul-Mulk and Dr. Nawab Shafi-ul-Mlk purchased the property in question under Registered Sale Deed dated 18.03.1997 executed by one Satish Khanna and his wife Vanila Khanna who had purchased the same from O.S. Reddy under Registered Sale Deed dated 31.03.1995. It is claimed that the 1200 sq. yards of land purchased by them forms part of Ac.1.16 guntas of land which was the subject-matter of O.S.No.41 of 1993. It is contended that the respondents 7 to 13 are bona fide purchasers under Registered Sale Deeds and the building permits were granted after identifying the land and after verifying the title and possession. It is further stated that the petitioners or their vendor have never been in possession and that the alleged purchases made by the petitioners did not confer any manner of right on them since their vendor himself had no right over the property by the date of the sale in favour of the petitioners. The three house numbers mentioned by the petitioners are not existing at all as found by the Corporation in its proceedings dated 22.7.2008. The writ petition is not bona fide and has been filed deliberately suppressing the real facts. At any rate, the writ petition seeking to settle various disputed questions of fact is not maintainable at all. I have heard Sri Vedula Venkataramana, learned counsel appearing for the petitioner, Sri D. Prakash Reddy, the learned Senior counsel appearing for the respondents 7 and 8, and Sri M.S. Ramachandra Rao, learned counsel appearing for the respondents 9 to 13, as well as Smt. Kalpana Ekbote, learned counsel appearing for the Municipal Corporation of Hyderabad. As noticed from the pleadings narrated above, the petitioners are contending that the premises in respect of which the impugned construction permits were granted is situated in Sy.No.129/45 and that they acquired title and possession by virtue of the Agreements of Sale dated 18.08.2007 executed by Syed Moshin Moinuddin through his General Power of Attorney Sri Syed Mohd. Jaweed. According to them, their vendor Syed Moshin Moinuddin got constructed three rooms in the land in question which were assigned house numbers 8-2-686/A/1, 8-2- 686/A/2 and 8-2-686/A/3 by the Corporation. It is alleged that the respondents 7 to 13 were proceeding with the constructions unauthorizedly over the said land pursuant to the impugned building permits which were obtained on the basis of sale deeds brought into existence in their favour by wrongly showing the Sy.No.129/45 whereas in the link documents it was mentioned as Sy.No.128. On the other hand, the case of the respondents 7 to 13 is that the controversy with regard to the location of the premises in question was settled long back in O.S.No.41 of 1993 and by virtue of the compromise decree passed in the said suit, Mohd. Jaweed Ahmed Siddiqui and five others (defendants 4 to 9 to the said suit) acquired absolute rights in respect of suit property. While referring to the said compromise decree, the said Mohd. Jaweed Ahmed Siddiqui and five others sold the suit property to Smt. Anupama and Smt. Swetha under Registered Sale Deeds who in turn transferred their rights to the vendees of the respondents 7 to 13 under registered sale deeds. As could be seen, both the parties are claiming title in respect of the same property through different sources. There is an apparent controversy with regard to the survey number i.e., whether it is Sy.No.129/45 or Sy.No.128. It is also relevant to note that the controversy with regard to these two survey numbers i.e., Sy.No.129/45 or Sy.No.128 was the subject- matter of O.S.No.3129 of 1981 and O.S.No.322 of 1983 (renumbered as O.S.No.41 of 1993). The compromise decree passed in O.S.No.41 of 1993 shows that the rights and title claimed by the plaintiffs and defendants 1 to 3 therein were given up in favour of the defendants 4 to 9 therein i.e., Mohd. Jaweed Ahmed Siddiqui and five others. Therefore, according to the respondents 7 to 13, their predecessors-in-title Mohd. Jaweed Ahmed Siddiqui and five others acquired valid title in respect of the suit property irrespective of the controversy whether it is situated in Sy.No.129/45 or Sy.No.128. The rival claims made by the parties with regard to the title of the property in question which apparently involves various disputed questions of fact and which has been the subject-matter of various of proceedings before the competent Civil Courts cannot be enquired into and adjudicated by this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India. As a matter of fact, the question that falls for consideration in this writ petition is only with regard to the legality of the permissions granted by the Corporation in favour of the respondents 7 to 13 for construction over the said land. As held by this Court in M/s. ANNAPURNA BUILDERS, HYDERABAD v. MUNICIPAL CORPORATION OF HYDERABAD AND ANOTHER[1] the Corporation has no power to adjudicate upon the question of title of rival claimants for granting permission to make construction. What all the Corporation required to do is a summary enquiry as to who among the rival claimants has prima facie title. It is also a well-settled law that such a decision by the Corporation would not be binding on any of the parties. In a recent decision in K. PAVAN RAJ v. MUNICIPAL CORPORATION OF HYDERABAD, HYD.[2] having considered an identical issue this Court held as under : “A careful reading of the provisions of the Act and the Bye-laws does not indicate that the Commissioner is empowered to entertain a title dispute and adjudicate the same before disposing of the application for grant of building permission. Indeed, both the provisions of Sections 428 and 429 and clause (v) of Bye-law 4.2 envisage filing of copies of title deeds and there is no provision under which the Commissioner can reject grant of building permit on the ground of title dispute. As held in HYDERABAD POTTERIES PRIVATE LIMITED V. COLLECTOR, HYDERABAD (2001 (3) ALD 600), if any objection regarding title is received, the Commissioner is required to be prima facie satisfied about the applicant’s title to the property and his lawful possession of the same and he cannot decide title dispute because that is neither one of the duties assigned to him nor he is provided with such an adjudicatory mechanism. A person setting up a rival claim of title, is free to approach the court of competent jurisdiction and seek appropriate relief in that regard. If the applications for building permissions are rejected merely on the ground of third parties raising disputes of title, that may result in serious hardship to the owners of the properties where frivolous, speculative and vexatious claims may be made by third parties by setting up title. Therefore, wherever the Commissioner is, prima facie, satisfied about the legal title of the applicant and his lawful possession, he is bound to consider the application for building permission on merits, leaving the objector free to approach an appropriate court of law.” In the light of the above ratio which is squarely applicable to the facts of the present case, the objection raised by the petitioners with regard to the title of the land in question by itself does not prohibit the Commissioner from granting the building permission, provided a prima facie title is made out in favour of the applicants. It is true that the title claimed by the respondents 7 to 13 is disputed by the writ petitioners. However, having regard to the material produced by the respondents 7 to 13, it cannot be said that the Corporation had committed any error in finding a prima facie title in their favour. At that stage, it is neither necessary nor possible for the Corporation to make any roving enquiry as to the title claimed by the respondents 7 to 13. The documents relied upon by the respondents 7 to 13 made out a prima facie title in their favour compared to the title claimed by the petitioners under the Agreements of Sale dated 18.08.2007. Though the petitioners claimed that under the Agreements of Sale, dated 18.08.2007, the possession was delivered to them and that they have been continuing in possession enjoyment, except the averment in the affidavit filed in support of the writ petition no other material is available on record to substantiate the same. On the other hand, in A.S.No.507 of 2003 on the file of the Court of the XIV-Addl. Chief Judge, City Civil Court, Hyderabad, which was filed against a decree for perpetual injunction obtained by the petitioners’ vendor Syed Moshin Moinuddin in respect of the House Nos.8-2-686/A/1 to 3, a clear finding was recorded that neither the appellant nor the respondent (the vendor of the petitioners) was in possession of the property and that the same was in possession of the third party purchasers as revealed from the report of the Advocate-commissioner, who inspected the property on 7.3.2006. Thus, it is clear that the vendor of the petitioners was not in possession as on the date of the execution of the Agreements of Sale in favour of the petitioners. Therefore the impugned permits cannot be said to be erroneous on any ground whatsoever. As expressed above, the satisfaction of the Corporation with regard to prima facie title of the applicants/respondents 7 to 13 is neither conclusive nor binding on any of the parties and it is always open to the parties to work out the appropriate common law remedy as available under law for adjudication of the question of title in respect of the land in question. It is made clear that this Court shall not be understood to have expressed any opinion with regard to the rival claims made by the parties and in case any proceedings are initiated before the competent court, the same shall be considered and decided in accordance with law uninfluenced by any of the observations made in this order. Writ Petition is accordingly dismissed. No costs. _______________ G. ROHINI, J. Dt. 13.07.2009