IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 14303 of 2008 Between: G. Hari Prasad Reddy, S/o. late G. Krishna Reddy, Hindu, R/o. 8-2-293/82/HH/27, HUDA Heights, Banjara Hills, Hyderabad. ..... PETITIONER AND 1 The Greater Hyderabad Municipal Corporation, Rep. by its Commissioner, Tank Bund, Hyderabad. 2 The Commissioner and Special Officer, Town Planning Section (HO), Greater Hyderabad Municipal Corporation, Tank Bund, Hyderabad. .....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 to issue a Writ, Order or Direction, particularly a Writ of Mandamus declaring the action of the 2nd respondent in issuing Proceedings Lr.No. 0112/CSC/TP8/2008/534, dated 22/23-02-2008 as illegal, arbitrary, unconstitutional and contrary to the principles of naturaljustice and consequently direct the 2nd respondent to accept the building application dated 29-01-2008 and approve the same and pass Counsel for the Petitioner:MR.K.SAIRAM MURTHY Counsel for the Respondent No.: R.RAMACHANDRA REDDY,SC FOR MCH 1,2,4&6 The Court made the following : O R D E R: 1. This Writ Petition has been filed by G.Hari Prasad Reddy with a prayer to issue a writ of mandamus declaring the action of the Commissioner and Special Officer, Town Planning Section (HO), GHMC, Hyderabad-2nd respondent in issuing proceedings vide Lr.No.0112/CSC/TP8/2008/534, dated 22/23.2.2008 as illegal, arbitrary and unconstitutional. 2. Sri Rupender Pershad Sehgal and Devi Pershad Sehgal are the owners of the premises bearing No.5-8-344, Chirag Ali Lane, Abids, Hyderabad admeasuring 2084 square yards. The petitioner and the owners of the premises entered into a development agreement cum General Power of Attorney on 19.10.2005. As per the development agreement, the petitioner is entitled for 55% of the constructed area including common area and facilities together. He deposited a sum of Rs.10.00 lakhs, which was shared by Rupender Pershad Sehgal and Devi Pershad Sehgal. As per the terms of the development agreement, the petitioner is entitled to enter upon the schedule property and to deal with the same in his discretion and in accordance with law. He is also entitled to undertake the construction activity over the scheduled property and obtain necessary permissions, clearance, no objection etc. from the concerned authorities including sanctions from HMDA and municipal authorities. Pursuant to the terms of development agreement, he approached the HMDA and municipal authorities for securing permission for change of land from commercial zone to residential use. Acceding to the request of the petitioner, the HMDA and municipal authorities permitted change of use of land for residential purpose with certain conditions vide G.O.Ms.No.888, dated 12.12.2007. He approached the HMDA and Urban Land Ceiling authorities and obtained necessary permissions. Rupender Pershad Sehgal and Devi Pershad Sehgal submitted a letter to the Joint Collector, Hyderabad requesting to issue no objection certification to the petitioner for development of the property. After obtaining all necessary permissions from the authorities concerned, the petitioner submitted building application on 29.1.2008 to the 2nd respondent for construction of cellar + stilt + five upper floors. While so, Rupender Pershad Sehgal addressed a letter to the 2nd respondent on 20.2.2008 where under he requested 2nd respondent not to give permission for construction of commercial complex without his consent in writing to the petitioner. Basing on the said letter, 2nd respondent issued the proceedings impugned in this writ petition whereunder the plan submitted by the petitioner came to be returned unapproved. The said proceedings are assailed in this writ petition. 3. It is the plea of the petitioner that development agreement cum GPA authorizes him to make necessary application to the municipal authorities to secure sanction and as the development agreement cum GPA is coupled with interest, it is not within the power of the land owners to address letter to 2nd respondent resisting for grant of building permission. For better understanding of the grievance of the petitioner para 4 of the writ affidavit is extracted as under: “ I submit that the action of the 2nd respondent in rejecting the plans and returning the same unapproved is illegal, arbitrary and unconstitutional. I submit that the action of the 2nd respondent in not addressing the proceedings to me and rejecting the same on the basis of the alleged letter issued by Sri. Rupender Pershad Sehgal is also unconstitutional and contrary to the registered development agreement cum GPA. I submit that a son today the registered development agreement cum GPA is in existence and the same is not cancelled. Therefore, the action of the 2nd respondent in rejecting the plans basing on the alleged letter addressed by Rupender Pershad Sehgal is illegal. I submit that when I submitted the plans and other relevant documents and paid the amount for the purpose of approving the same the action of the 2nd respondent in rejecting them is illegal and contrary to the clauses of the registered development agreement cum GPA. I submit that 2nd respondent ought to have issued notice to me before rejecting the plans, since I am holding registered GPA holder of Sri Rupender Pershad Sehgal and Sri Devi Pershad Sehgal and he cannot address any letters to the above said persons, as long as the GPA is in existence. I submit that having spent lot of money and having obtained permissions of the relevant authorities, the action of the 2nd respondent in rejecting the same is illegal, arbitrary and unconstitutional. I submit that the 2nd respondent ought not to have entertained any applications much less the alleged letter received from Rupender Pershad Sehgal and acted upon it.” 4. Notice before admission came to be ordered on 4.7.2008. Two interlocutory applications came to be filed by third parties seeking their impleadment. WPMP.No.21774 of 2008 is filed by Rupender Pershad Sehgal and others and another being WPMP.No.24370 of 2008 filed by Devi Pershad Sehgal and Nand Kunwar. Both the applications came to be ordered on 22.10.2008. Accordingly, the implead petitioners came to be arrayed as R3 to R7. R6 and R7 sailed with the writ petitioner. In a way they admitted of development agreement cum GPA dated 19.10.2005 for development of property in question. R3 to R5 resisted the claim of the writ petitioner. Their case as set out in the affidavit filed in support of the implead petition being WPMP.No.21774 of 2008, in brief, is : 5. Though the development agreement cum GPA was executed on 19.10.2005, the writ petitioner did not take appropriate steps to implement the said development agreement cum GPA and thereby committed breach of the terms of the development agreement. The breach of the terms of the development agreement committed by the writ petitioner led to certain disputes among the parties to the agreement and therefore a letter dated 20.2.2008 of Rupender Pershad Sahgal came to be addressed to the Chief City Planner, GHMC, Hyderabad requesting not to grant any permission without taking consent of the land owners. The development agreement cum GPA came to be cancelled under a registered notice dated 25.6.2008. It is their further case that the writ petitioner has to sort out many problems before securing permission from the concerned authorities for construction of a residential complex. 6. When the writ petition came up for admission hearing, with the consent of learned counsel for the parties, the same is taken up for final disposal. 7. Learned counsel appearing for the petitioner submits that the development agreement cum GPA authorizes the petitioner to secure necessary permission from the municipal authorities for construction of the building and therefore the action of the 2nd respondent in returning the building permission application basing on the letter of one of the parties to the development agreement cum GPA is solely unsustainable and therefore necessary direction is required to be given to 2nd respondent to consider the building permission application dehorse the letter dated 20.2.2008 of Rupender Pershad Sahgal addressed to the Chief City Planner, GHMC, Hyderabad. He took me to clause 31(v) of the development agreement cum GPA to buttress his submission, which reads as under: “ 31(v) To undertake the construction activities over the schedule property and to submit and obtain all necessary permissions, clearances, no objections etc., from the authorities concerned including sanctions from HUDA and concerned municipality therefore.” Learned counsel would also contend that by the time the letter dated 20.2.2008 of Rupender Pershad Sahgal came to be addressed to the Chief City Planner, GHMC, Hyderabad, the development agreement cum GPA was not cancelled and therefore 2nd respondent was not justified in returning the building permission application submitted by the petitioner. 8. Learned Standing Counsel appearing for R1 and R2 submits that the building permission application submitted by the petitioner came to be returned on the objections being raised by one of the owners of the property in question viz., Rupender Pershad Sahgal and therefore the action of R1 and R2 was justified. 9. Learned counsel appearing for R3 to R5 submits that the ‘power of attorney holder’ does not come within the meaning of the ‘owner’ as defined in byelaw 2 of Municipal Corporation Building Byelaws, 1981 and therefore any application filed seeking permission for construction of a building, either it must be filed by the owner or the owner must consent for such an application. He would also submit that the petitioner is no more a power of attorney holder since the agreement came to be cancelled and in which case the action of R1 and R2 in returning the building permission application cannot be faulted. He would also submit that clauses in the development agreement cum GPA do not give an indication that it is coupled with interest in favour of GPA holder i.e. the petitioner and therefore R3 is still within his power in canceling the development agreement cum GPA. In elaborating his arguments he took me to Sec.428 of HMC Act, 1955 and byelaws 2 and 3.2 of Municipal Corporation Building Byelaws, 1981. He also placed reliance on the judgment of this court in M.JOHN KOTAIAH V. A.DIVAKAR AND OTHERS[1] wherein it has been held that if on a construction of the power of attorney and in the light of the facts and circumstances obtaining in the case, the document does not prima facie satisfy the requirements for the creation of a power coupled with interest, then merely because the document itself describes the Agency to be an irrevocable one, it does not become an irrevocable Agency. 10. The question that calls for adjudication in this writ petition is – whether the development agreement cum GPA executed by R3 and R6 with the consent of R3 to R5 is revocable or irrevocable? 11. If the development agreement cum GPA is irrevocable it is not within the competency of any of R3 to R7 to revoke the same unilaterally. R3 to R5 are opposing the claim of the petitioner and where as R6 and R7 are supporting the claim of the petitioner. 12. It is well settled that if the document created an interest in favour of the agent under section 202 of the Indian Contract Act, such an interest was sufficient to bring the document within the conditions necessary for treating it as an irrevocable GPA. 13. Under the development agreement cum GPA, the petitioner was permitted to obtain all necessary permission, clearances etc. from municipal or any other authorities by paying necessary fee. The petitioner deposited an amount of Rs.10.00 lakhs to be shared by the executants i.e. R3 and R6. Clauses 6, 18, 20 and 21 of the development agreement cum GPA need to be noted and they read as under: “ 6. That the parties hereto agree with each other that the developer shall obtain all necessary permissions, clearances etc., from the Municipal Corporation of Hyderabad or any other department by paying necessary charges and the parties of the first party are not entitled to bear any charges in respect to the same, but the parties No.1 and 2 of the first part have agreed to share the appropriate deposit amount and expenses to the extent of their share for obtaining electricity, water and sewerage connections as per their sharing ratio. 18. That after getting sanction from Municipal Corporation of the residential building the party shall execute a separate supplementary deed and shall enmark the actual built up area to be allotted to both the parties hereto including the parking area. 20. The developer shall be entitled to keep the original title deeds with them till the completion of the complex. The owners or developers shall however not be entitled to part with or create any mortgage or charge in respect of schedule property. On completion of the complex the original title deeds shall be handed over to the society or Association. 21. That the developer has deposited a sum of Rs.10,00,000/- (Rupees ten lakhs only) to be shared by the parties No.1 and 2 of the first party as under: (i) Sri.R.P.Sehgal Rs.3,50,000/- (Rupees Three lakhs fifty thousand only) by cash. Rs.1,50,000/- (Rupees One Lakhs fifty thousand only) by cheque No.510773 dt.19.10.2005 drawn on Syndicate Bank, Somajiguda Branch, Hyderabad. (ii) Sri.D.P.Sehgal Rs.3,50,000/- (Rupees Three lakhs Fifty thousand only) by cash. Rs.1,50,000/- (Rupees One Lakhs fifty thousand only) by cheque No.510774 dt.19.10.2000 drawn on Syndicate bank, Somajiguda Branch, Hyderabad. towards the security deposit and the same shall be refunded without any interest to the party of the second part on complete completion and handing over the possession of respective shares of the owners in full and compete shape with all facilities and amenities etc.” A reading of the above referred clauses indicate that the agency created in favour of the petitioner is coupled with interest. Therefore, 3rd respondent cannot cancel the development agreement cum GPA unilaterally. The clauses in the agreement empower the petitioner to seek necessary permissions, clearances etc. from competent authorities by paying necessary fee. 14. Learned counsel appearing for R3 to R5 contends that for making an application to the municipal corporation seeking building permission, the owner alone is competent and therefore application filed by the petitioner as GPA holder is not maintainable and in such situation the action of R1 and R2 in returning the building permission application cannot be faulted with. He refers to Section 428 of HMC Act and Byelaws 2 and 3.2 of HMC building Byelaws. Section 428 reads as under: “ 428. Notice to be given to Commissioner of intention to erect a building: (1) Every person who intends to erect a building shall give to the Commissioner notice of his said intention in a form, obtained of this purpose under Section 435, specifying the position of the building intended to be erected, the description of building, the purpose for which it is intended, its dimensions and name of the person whom the intends to employ to supervise its erection.” “ 2. ….‘Owner’ means the person who receives the rent for use of land or building, or would be entitled to do so if they were let. It also includes:- a) An agent or trustee who receives the rent on behalf of the owner; b) An agent or trustee who receives the rent of or is entrusted with or is concerned with any building devoted to religious or charitable purposes; c) A receiver, executor or administrator or a manager appointed by any Court of competent jurisdiction to have the charge of, or to exercise the rights of the owner; and d) A mortgagee in possession or a lease-holder so empowered.” 3.2 Application for building permit: Every person who intends to erect, re-erect or make material alteration in any place in building or part thereof as referred to in Section 428(2) and Section 433 of the Act within the jurisdiction of Hyderabad Municipal Corporation shall give an application in writing to the authority in the prescribed forms as given in Appendix ‘A’ which may be obtained from the office of the Corporation on payment of such fee for each form as shall from time to time be determined in this behalf by the authority. Such application shall be accompanied by plans and statements in quintuplicate, as required under Bye-law No.4.2. The plans may be of ferro prints, ammonia print of which atleast one set shall be cloth mounted.” 15. Learned counsel appearing for R3 to R5 contends that the owner as defined in bye law No.2 does not include the power of attorney holder and therefore the power of attorney holder is not empowered to sign on the application seeking building permission. No doubt the GPA holder is not specifically mentioned within the meaning of owner as illustrated in the above byelaw No.2. But the definition of owner is an inclusive one. The GPA holder is a representative of the owner. Therefore, the GPA holder is to be read as a substitute to the owner and thus it is within the competency of GPA holder to make an application for building permission. 16. Viewed from any angle, the petitioner being GPA holder which is coupled with interest is competent to make the building permission application to R1 and R2. Since the GPA in favour of the petitioner is coupled with interest it cannot be terminated unilaterally. 17. Much emphasis has been made by the learned counsel appearing from R3 to R5 that the time schedule given in the agreement has not been kept up by the petitioner and therefore he is not entitled for grant of any relief by this Court in exercise of the powers under Article 226 of the Constitution of India. 18. I have given my anxious consideration to the terms of the agreement. The terms of the agreement are drafted so meticulously that defaulting party is made to pay penalty. For better appreciation I may refer clauses 12 and 13 of the agreement, which read as under: “ 12. That it is agreed by and between the parties that the developer should obtain all necessary permissions, clearances, no objections from the concerned authorities for the construction of residential building with his own expenses and responsibility. It is agreed by and between the parties that the developer shall construct residential building within 18 months from the date of sanctioning of permission from the Municipal Corporation of Hyderabad for construction of building with a grace period of six months according to standard specifications as per the annexure annexed. 13. That the parties hereto covenant with each other that if for any reason any individual parties of the first party creates any dispute with regard to construction of the residential building such individual party of the first party shall be liable to pay an amount of Rs.10,000/- per month to the second party till the re- commencement of the construction …way if the second party does not complete the work within stipulated period as mentioned about except due to natural calamities and shortage of material the second party shall be liable to pay Rs.10,000/- per month to each of the parties of party No.1 and 2, the first party proportionately.” 19. As on this day the building permission has not been sanctioned by R1 and R2. Therefore, the petitioner cannot be faulted for not completing the construction of the building. In view of the above discussion, I find that the reasons assigned by R1 and R2 for rejecting the building permission on the objection being raised by Rupender Pershad Sehgal are wholly unjustified. 20. Accordingly, this Writ Petition is allowed declaring the proceedings in Lr.No.0112/CSC/TP8/2008/534, dated 22/23.2.2008 of 2nd respondent as illegal and arbitrary and further R1 and R2 are directed to reconsider the building permission application of the petitioner and pass necessary orders. No costs. 28th November, 2008. (B.Seshasayana Reddy,J) tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.14303 OF 2008 28TH NOVEMBER, 2008 [1] AIR 1985 AP 30