THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.17679 OF 2009, WRIT PETITION No.3710 OF 2010, WRIT PETITION No.5947 OF 2010, AND WRIT PETITION No.6771 OF 2010 DATED: 31 .08.2010 WRIT PETITION No.17679 OF 2009 M/s. Eskay Builders, Hyderabad. …Petitioner and Greater Hyderabd Municipal Corporation, Hyderabad and 4 others. …Respondents WRIT PETITION No.3710 of 2010 M/s. Eskay Builders, Hyderabad. …Petitioner and Greater Hyderabd Municipal Corporation, Hyderabad and 5 others. …Respondents WRIT PETITION No.5947 OF 2010 Sri Pradeep Kumar Agarwal, Hyderabad and 2 others. …Petitioner and Greater Hyderabd Municipal Corporation, Hyderabad and 3 others. …Respondents WRIT PETITION No.6771 of 2010 Sri Pradeep Kumar Agarwal, Hyderabad and 2 others. …Petitioner and Greater Hyderabd Municipal Corporation, Hyderabad and 3 others. …Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.17679 OF 2009, WRIT PETITION No.3710 OF 2010, WRIT PETITION No.5947 OF 2010, AND WRIT PETITION No.6771 OF 2010 COMMON ORDER : As the parties to all the four writ petitions are common, they are heard together and decided by this common order. W.P.No.17679 of 2009 and W.P.No.3710 of 2010 are filed by one M/s. Eskay Builders, a partnership firm. Whereas a Mandamus is sought in W.P.No.17679 of 2009 directing the Greater Hyderabad Municipal Corporation (for short, ‘the Corporation’) not to sanction and release the sanctioned plan in favour of the respondents 3 to 5 for construction of a building in Sy.No.129/40, Shaikpet Village, Road No.13, Banjara Hills, Hyderabad; W.P.No.3710 of 2010 is filed alleging that the respondents 3 to 5 are proceeding with the construction in Sy.No.129/40 contrary to the provisions of the GHMC Act, 1955 (for short, ‘the Act’)and the Regulations made thereunder and seeking a declaration that the action of the Corporation in not preventing them from proceeding with the construction is arbitrary and illegal. The two other writ petitions i.e., W.P.No.5947 of 2010 and W.P.No.6771 of 2010 are filed by the respondents 3 to 5 in W.P.No.17679 of 2009. A declaration is sought in W.P.No.5947 of 2010 that the notice dated 11.03.2010 issued by the Corporation under Section 636 of the Act for removal of the construction made in Sy.No.129/40 within 24 hours is arbitrary, illegal and in violation of principles of natural justice. W.P.No.6771 of 2010 is filed to declare the proceedings of the Corporation dated 9.3.2010 refusing the building permission sought by them for construction in Sy.No.129/40 is arbitrary and illegal. For the sake of convenience, the parties shall hereinafter referred to as they are arrayed in W.P.No.17679 of 2009. The facts, in brief, are as under: The petitioner – M/s. Eskay Builders - claims to have purchased the property admeasuring 1,120 sq. yards in Sy.No.129/40 of Shaikpet Village and Mandal, Road No.13, Banjara Hills, Hyderabad from the 3rd respondent - Smt. Razia Sirajuddin – under an Agreement of Sale, dated 15.11.1993. It is further stated that though the petitioner was granted permission for construction of the building on 20.02.1996, it could not proceed with the construction immediately. While so, some unauthorized persons claiming through the petitioner’s vendor attempted to interfere with the possession and enjoyment of the petitioner and therefore the petitioner filed O.S.No.2054 of 2005 on the file of the Court of IV-Junior Civil Judge, City Civil Court, Hyderabad against the 3rd defendant and the Municipal Corporation of Hyderabad for specific performance of the Agreement of Sale, dated 15.11.1993 as well as perpetual injunction restraining the defendants from interfering with the suit schedule property. Pending the suit, by order dated 14.4.2005 in I.A.No.367 of 2005 temporary injunction was granted against the 3rd respondent herein and her henchmen. The petitioner had subsequently impleaded the respondents 4 and 5 herein as defendants to the suit as well as to the petition for injunction. It is further pleaded that the respondents 4 and 5 claiming that they had purchased 1,658 sq. yards of the land from the 3rd respondent herein filed W.P.No.10345 of 2008 alleging that the Greater Hyderabad Municipal Corporation (1st respondent herein) was not receiving and considering their application for construction of the building of the property admeasuring 1,658 sq. yards in Sy.No.129/40 and insisting upon production of No Objection Certificate (NOC) from the District Collector. The said writ petition was disposed of by order dated 2.5.2008 with a direction to the Corporation to entertain the application and consider the same in accordance with law within a period of two months. The petitioner filed objections before the respondents 1 and 2 on 27.7.2009 bringing to their notice that a title dispute is pending before the Civil Court. Alleging that the respondents 1 and 2 were proceeding to release the sanction plan in favour of the respondents 4 and 5 without considering the petitioner’s objections dated 27.7.2009, W.P.No.17679 of 2009 has been filed seeking a direction to the Corporation not to release the building permit in favour of the respondents 3 to 5. While issuing rule nisi, This Court by order dated 25.8.2009 in WPMP.No.23183 of 2009 granted interim stay of sanctioning and releasing the plan in favour of the respondents 3 to 5 in respect of Sy.No.129/40. Alleging that though no sanction was granted the respondents 4 and 5 had encroached upon the land and made unauthorised constructions in the property and that the respondents 1 and 2 failed to take any steps to restrain them from proceeding with the illegal constructions, the petitioner filed W.P.No.3710 of 2010 seeking a declaration that the action of the Corporation in not preventing the respondents 3 to 5 from proceeding with the construction in Sy.No.129/40 admeasuring 1,120 sq. yards is arbitrary and illegal. By order dated 19.2.2010 in WPMP.No.4844 of 2010 this Court directed the respondents 3 to 5 not to proceed with any construction in the disputed property. In the meanwhile, the 1st respondent issued a notice dated 11.3.2010 under Section 636 of the Hyderabad Municipal Corporations Act, 1955 calling upon the respondents 4 and 5 to demolish / remove the unauthorized constructions which are not covered by sanctioned plan within 24 hours. Challenging the same, the respondents 3 to 5 filed W.P.No.5947 of 2010 seeking a declaration that the notice dated 11.3.2010 is arbitrary and illegal. It was pleaded by them that the respondents 4 and 5 had purchased 1,658 sq. yards of land in Sy.No.129/40 from Smt. Razia Sirajuddin (3rd respondent herein) under a Registered Agreement of Sale-cum- General Power of Attorney, dated 27.7.2005 and the possession was delivered to them and thereafter on 7.1.2009 they made an application before the Corporation seeking permission for construction of residential building. As the respondents 1 and 2 under the influence of the writ petitioner did not release the sanctioned plan, the respondents 4 and 5 started construction under the deemed provision under Section 437 of the Hyderabad Municipal Corporation Act, 1955 and completed the cellar portion. While so, by order dated 9.3.2010 the Corporation refused the petitioner’s application for building permission on the ground that this Court by order dated 25.8.2009 in W.P.No.17679 of 2009 granted interim stay of sanctioning and releasing the plan and again by order dated 19.2.2010 in W.P.No.3710 of 2010 directed not to proceed with any construction in the disputed property. Aggrieved by the same, W.P.No.6771 of 2010 has been filed by the respondents 3 to 5. In W.P.Nos.5947 and 6771 of 2010, it is pleaded that though the 3rd respondent Smt. Razia Sirajuddin entered into a development agreement on 15.11.1993 in favour of the writ petitioner firm, as the petitioner firm failed to comply with the conditions of development agreement, the same was cancelled. In spite of the same, after a lapse of more than a decade, the writ petitioner firm started claiming rights over the property in question and filed O.S.No.2054 of 2005. In the meanwhile the respondents 4 and 5 had purchased the same property to an extent of 1,658 sq. yards under Registered Sale Deeds and obtained possession. Heard the learned counsel for both the parties. As could be seen, both the writ petitioner firm and the respondents 4 and 5 are claiming rights in respect of the very same property situated in Sy.No.129/40 through its owner Smt. Razia Sirajuddin. Whereas the petitioner firm claimed title under a development agreement dated 15.11.1993, according to the respondents 4 and 5 the same stood cancelled on 28.11.1995 and thereafter they had purchased the very same property under an Agreement of Sale-cum-General Power of Attorney, dated 27.07.2005. Admittedly the respondents 4 and 5 are in possession and they have also made constructions upto the cellar portion claiming that they are entitled to do so under the deemed provision under Section 437 of the Hyderabad Municipal Corporations Act, 1955. However their application for building permission was subsequently rejected by order dated 9.3.2010 which is under challenge in W.P.No.6771 of 2010. As could be seen from the order dated 9.3.2010, their application for building permission was refused only on the ground of pendency of W.P.No.17679 of 2009 and W.P.No.3710 of 2010 under which interim orders are in force. Apparently the Corporation did not go into merits of the case. The learned counsel appearing for the petitioners in W.P.Nos.5947 and 6771 of 2010 vehemently contended that as there is no provision under the Hyderabad Municipal Corporations Act, 1955 or the Building Bye-laws enabling the Corporation to reject the application on the ground of ownership of the applicant being doubtful, the Corporation is bound to consider the application of the respondents 4 and 5 in accordance with law ignoring the objections raised by the petitioner. The law is well-settled that as and when the application is received for building permission, the Commissioner has to consider whether the prima facie tile and lawful possession of the applicant has been made out. Even where the objections for grant of building permission are raised on the ground of title, the Commissioner has to consider only the prima facie factors and it is not necessary for the Commissioner to decide the title inter se between the applicant and the objector [ vide HYDERABAD POTTERIES PVT. LTD. v. COLLECTOR, HYDERABAD DISTRICT[1] ]. This Court in T. RAMESHWAR v. COMMISSIONER, MUNICIPAL CORPORATION OF HYDERABAD[2] held that in spite of pendency of litigation as to title to the property, Commissioner may grant permission if the applicant is able to show prima facie title to the property. It is also relevant to note that O.S.No.2054 of 2005 which is a suit for specific performance as well as perpetual injunction is pending before the competent Civil Court and the petitioners and the respondents before this Court in these writ petitions are parties to the said suit. In the circumstances, it is for the parties to get the rival claims adjudicated in the proceedings pending before the Civil Court and it is not necessary for this Court to express any opinion with regard to their respective claims. So far as the order dated 9.3.2010 passed by the Corporation refusing the petitioner’s application for building permission on the ground of pendency of W.P.Nos.17679/2009 and 3710/2010 is concerned, now that the said writ petitions are disposed of and the interim orders are no longer subsisting, it is necessary for the Corporation to consider the application of the respondents 4 and 5 for building permission on merits. Accordingly, the order dated 9.3.2010 passed by the Corporation is hereby set aside and all the Writ Petitions are disposed of with a direction to the respondents 1 and 2 to reconsider the application of the respondents 4 and 5 for building permission and pass appropriate orders in accordance with law. Both the parties are granted liberty to make their claims together with the supporting material before the respondents 1 and 2 within a period of two weeks from today. Thereafter the respondents 1 and 2 shall pass appropriate orders in accordance with law after giving an opportunity of hearing to the petitioner as well as the respondents 3 to 5 as expeditiously as possible preferably within a period of four weeks from the date of receipt of the representations/objections from the parties. Till such time, the respondents 3 to 5 shall not proceed with any further constructions. No costs. _____________ G. ROHINI, J. Dt. 31.08.2010 gbs [1] 2001 (3) ALT 200 [2] 2006 (5) ALT 582