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Subash Kumar Lohade and anr. Vs. the Special Officer, Municipal Corporation of Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 4920, 4924, 4925, 7965 and 9419 of 1984
Judge
Reported inAIR1985AP352
ActsHyderabad Municipal Corporation Act, 1956- Sections 388, 389, 390 and 391; Municipal Corporation of Hyderabad (Layout) Rules 1965 - Rules 3, 4, 9 and 13; Andhra Pradesh Urban Areas (Development) Act, 1975; Building Bye Laws, 1972
AppellantSubash Kumar Lohade and anr.
RespondentThe Special Officer, Municipal Corporation of Hyderabad
Appellant AdvocateC. Ananda Rao and ;M.B. Rama Sarma, Advs.
Respondent AdvocateK. Janardhana Rao, Standing Counsel, for M.C.H.
Excerpt:
civil - approval of layout - sections 388, 389, 390, and 391 of hyderabad municipal corporation act, 1956, rules 3, 4, 9 and 13 of municipal corporation of hyderabad (layout) rules, 1965, andhra pradesh urban areas (development) act, 1975 and building bye laws, 1972 - notification requiring production of certificate from collector regarding title to accord permission to lay out challenged - such notification issued on basis of objection made by collector -collector does not possess power to give such direction to municipality even though applicant bound to produce proof of title to get approval of layout - issuance of such notification on objection from collector ultra vires to powers of municipal corporation - held, notification stipulating production of certificate of title from.....jeevan reddy, j. 1. in this batch of writ petitions, the petitioners are questioning the validity and competence of the municipal corporation of hyderabad to insist upon the reduction of a no-objection certificate from the district collector, hyderabad, as a pre-condition for sanctioning the layout applied for by the petitioners. the individual facts of these several writ petitions are not relevant for the purpose of deciding the question arising herein, and it wool be sufficient if we set out the facts in the first writ petition, viz., w.p.no. 4920/1984. a. the petitioner in the aforesaid writ petition says that, he is the owner of half portion of plot no.1, situated at jubilee hills, banjara hills, hyderabad; that, he had purchased the same under a registered sale deed dt. 10-10-1970.....
Judgment:

Jeevan Reddy, J.

1. In this batch of Writ Petitions, the petitioners are questioning the validity and competence of the Municipal Corporation of Hyderabad to insist upon the reduction of a no-objection certificate from the District Collector, Hyderabad, as a pre-condition for sanctioning the layout applied for by the petitioners. The individual facts of these several Writ Petitions are not relevant for the purpose of deciding the question arising herein, and it wool be sufficient if we set out the facts in the first Writ Petition, viz., W.P.No. 4920/1984.

A. The petitioner in the aforesaid writ petition says that, he is the owner of half portion of Plot No.1, situated at Jubilee Hills, Banjara Hills, Hyderabad; that, he had purchased the same under a registered sale deed dt. 10-10-1970 from one T.V. Ramachandraiah who, in turn, is said to have purchased the same, along with some other land, from one Shamim Begum in 1967. The petitioner applied to the Municipal Corporation for sanction of layout in respect of the said plot, along with a plan. The Municipal Corporation, by its proceedings dt. 17-11-1981, directed the petitioner to demarcate the roads, plots and boundaries. The petitioner also paid the requisite charges to the corporation. He says that, in pursuance of the proceedings dt. 17-11-1981 which were communicated to him, he demarcated the site as per the corrected layout and proposed to pay the betterment charges at an ad hoc rate of Rs. 26/- per sq.yard. The Corporation then addressed a letter dt. 21-12-1981 to the petitioner, directing him to remit an amount of Rs. 92,618/- towards betterment charges and obtain permit. Accordingly, he petitioner says, he deposited an amount of Rs. 92,618/-, and also gave an undertaking for payment of difference of betterment charges. In spite of this, the petitioner complains , the Corporation did not accord the sanction, and has been insisting upon the petitioner obtaining a no-objection certificate from the District Collector, Hyderabad with respect to his title. The petitioner's contention is that, in law, the Corporation has no power to call upon him the produce such a certificate. The refusal to sanction the layout applied for, on the said ground, is said to be incompetent and arbitrary. A direction is, therefore, sought against the Corporation restraining it from insisting upon the production of such a certificate.

B. In the counter-affidavit filed on behalf of the Corporation, it is stated that the letter of the Corporation calling upon the petitioner to deposit the betterment charges, does not confer upon him a right to sanction of layout and that, the said payment is one of the requirements to be satisfied before the sanction of layout is considered. It is, however, admitted that the sanction has not been accorded on account of the petitioner's failure to produce a no-objection certificate. It is asserted that the Corporation is perfectly competent, and within its power to insist upon the production of such a certificate. Various provisions of law are relied upon in this behalf, to which we shall make a reference presently. The deponent to the counter-affidavit has stated the circumstances, and the reasons for which such insistence is being made. It is stated that, in pursuance of the Collector's letter dt. 5-3-1982, the Municipal Corporation issued a Circular dt. 27-3-1982 directing the concerned officers not to sanction layout until the applicant produces a clearance certificate from the Collector, Hyderabad District, if the layout applied for happens to be in Banjara Hills area (Shaikpet village). It is submitted that, unless the petitioner produces a no-objection certificate from the Collector of Hyderabad, he is not entitled to the sanction of layout, in law.

The learned Standing Counsel for the Municipal Corporation has placed before us the letter of the District Collector,Hyderabad, and the Circular issued by the Corporation, to which a reference would be appropriate. The Collector, Hyderabad District, through D.O.Lr. No. F4/2474/81, dt. 5-3-1982 addressed to the Special Officer, Municipal Corporation of Hyderabad, requested him to instruct the concerned officers not to accord sanction for construction at Banjara Hills until the applicant gets clearance from the Collector. It would be appropriate to extract the letter of the Collector, and the Circular issued by the Municipal Corporation in pursuance thereof, in full:

'Smt. M.Chaya Ratan, IAS Office of the In-Charge Collector, Collector, Hyd. Hyderabad Dist. Dist.

D.O.Lr.No. F4/2474/81, Dt/- 5-3-82

Dear Sir,

Sub: - Land-Hyd. Dist.Shaikpet (V) - Golkonda tq. - Banjara Hills - Sanction of layout plan

By MCH authorities - Reg.

Ref:- This office Lr.No.F3/7013/80, Dt/- 7-5-81

I am to invite your attention to the reference cited (copy enclosed for ready reference) wherein request has been made to issue necessary instructions to the concerned Deputy Commissioner and City Planner not to accord sanction of fresh layouts or permission for construction of buildings in Banjara Hills area until the applicants get a clearance from the Collector, Hyderabad District, with a view to safeguard the interests of the Government in Government lands. Now , it has come to light that the M.C.H. authorities have sanctioned permission for construction in favour of Sri. Nizamuddin Ahmed in Banjara Hills vide permit B.No.86, File No. 120/218/81, dt. 21-2-1982. As a result the petitioner filed a suit against the Government before VII Assistant Judge, City Civil Court, Hyderabad, with a view to go ahead with construction on Government land.

It is seen that a number of persons have unauthorisedly occupied the Government lands at Banjara Hills and also are producing dubious documents to support their contention of ownership on Government land.

I request you kindly to issue necessary instructions to the concerned officers in this regard not to sanction permission for construction at Banjara Hills until the applicant gets clearance from the Collector. I may also inform you that a map is under preparation which would indicate both Government land and patta lands, a copy of which will be forwarded to you later.

With regards,

Yours sincerely,

Sd/-

(Smt. M. Chaya Ratan)

To

Sri C. Arjuna Rao, IAS.,

Special Officer,

Municipal Corporation of Hyderabad,

Hyderabad. .....'

The Circular issued by the Municipal Corporation.

Reads as follows:-

'.......

OFFICE OF THE CHIEF CITY PLANNER, MUNICIPAL CORPORATION OF HYDERABAD,

TOWN PLANNING SECTION, HYDERABAD.

No.692/TP/A2/82. Dated 27th March, 1982.

Circular Memo No.692/TP/A2, dated 27-3-1982.

Sub:- Layouts - MCH - Land at Shaikpet (V) - Golconda tq. Banjara Hills - Sanction of a Layout plan - Regarding.

Ref:- D.O.Lr.No.F4/2474/81. Dt. 15-3-82 from Smt. M. Chaya Ratan, IAS, In charge Collector,

Hyderabad Dist.

In the reference cited, the Collector, Hyderabad District, among other things, has informed that a number of persons have unauthorisedly occupied the Government lands at Banjara Hills and also are producing dubious documents to support their contention of ownership on Government lands.

Therefore, the Collector, Hyderabad District has requested not to sanction permission for construction at Banjara Hills, until the applicant gets clearance from the Collector.

In view of the above, all the concerned officers noted in the address entry are requested not to sanction any building permission or layout in the Banjara Hills area., Shaikpet(V), until the petitioner produces a clearance certificate from the Collector, Hyderabad District.

Sd/- CHIEF CITY PLANNER: mch............'

C. The Hyderabad Municipal Corporations Act, 1955 contains provisions regulating the sanction of layout plans, and also construction of buildings within the Corporation area. Chapter X deals with construction, maintenance and improvement of public streets. Section 388 occurring in this Chapter, requires that a notice be given to the Commissioner of intention to layout lands for building and for private streets. It says:

D. 'Every person who intends-

(a) to set or let on lease any land subject to a covenant or agreement on the part of a purchaser or lessee to erect buildings thereon.

(b) To divide land (whether unbuilt or partly built) into building plots.

(c) O use any land or a portion thereof or permit the same to be used for building purposes, or

(d) To make or lay out a private street whether it is intended to allow the public a right of passage or access over such street or not.

Shall give written notice of his intention to the Commissioner and shall along with such notice, submit plans and sections, showing the situation and boundaries of such building, land and the site of the private street if any, and also the situation and boundaries of all other lands of such person of which such building , land or site forms a part and the intended development, laying out and plotting of such building, land including the dimensions and area of each building plot and also the intended level, direction, width, means of drainage, paving, metalling and lighting of such private street, the provisions for planting and rearing of trees, beside such private street and the height and means of drainage and ventilation of the building or buildings proposed to be erected on the land, and if any building when erected will not abut on a street then already existing or then intended to be made as aforesaid, the means of access from and to such building and the manner of the paving, metalling, draining and lighting of such means of access.'

Section 389 empowers the Commissioner to call upon the applicant to furnish the information required by him, in tow cases, viz. (I) where the notice given under Section 388 for any of the purposes mentioned inCl.(a) (b) or (c) thereof does not contain any proposal or intention to make or lay out a private street; and (ii) where the information furnished along with the application is not sufficient, and the Commissioner thinks that some further information is necessary to enable him to deal satisfactorily with the case. S.390 empowers the Commissioner to call upon the applicant to produce plans prepared by a licensed surveyor. S. 391 says that the Commissioner shall decide the laying out of land, dimensions and area of each plot, laying out of private streets, heights of buildings and several other matters relevant in that behalf, subject to such general directions a the Standing Committee of the Corporation is that, he should keep in view the general object of securing sanitary conditions, amenity and convenience in connection with the laying out and use of the land, and to ensure that the proposed private street may not conflict with any arrangements which have been made, or which are likely to be made for carrying out any general scheme of new streets, or of improvement of the existing streets in the locality.

The proviso to sub-sec.(1) of S.391 is important. It says:

'....if, within sixty days after the receipt by the Commissioner of any notice under S.388 or of the plans, sections, descriptions, scheme or further information, if any called for under S.389 the disapproval by the Commissioner with regard to any of the matters aforesaid specified in such notice has not been communicated to the person who gave the same, proposals of the said person shall be deemed to have been approved by the Commissioner.' Sub-s.(2) of S.391 says that, once the Commissioner signifies in writing his approval of the layout plan, the work can be proceeded with.

Rules have been framed under the Act, governing the approval of layout plans. They are contained in G.O.ms.No.1095, Municipal Administration, dt.24-8-1965, and are called 'Municipal Corporation of Hyderabad (Layout) Rules 1965'. They have come into force with effect from 20-1-1966. According to these Rules, every application for approval of layout shall be in the form specified in Appendix 'A' to the Rules. The application has to be signed by the 'owner of the land' and licensed surveyor or architect. The applicant has to deposit the layout fee in advance, which may be specified by the Corporation, from time to time, in the Municipal Treasury, and attach the receipt of payment to the application. The application has to be accompanied by a site plan containing the particulars specified in R.7. The applicant shall also have to furnish a statement of arrangements made for providing approaches from the existing public or private streets, and other matters provided in Rule 8, R:9 says:

'A non-encumbrance certificate from Registration Departments for the lands covered by the layout, together with a true copy of the title deed attested by a gazetted officer or by a Corporation Officer authorised by the Commissioner in this behalf, shall be enclosed.'. R.13 says that, within sixty days of the receipt of application with all the above particulars, the Commissioner shall communicate to the applicant, the conditions and modification subject to which the layout will be considered for approval, and also inform him of the estimated cost of development and provision of public amenities. Within seven days thereof, the applicant has to communicate his agreement to the Commissioner, in the Form prescribed in Appendix 'D' or request the Commissioner to carry out the said works at his cost, as the case may be. The form of application prescribed in Appendix 'A' inter alia, contains the following statement to be made by the applicant:

'I also enclose a non-encumbrance certificate from the Registration Department as to the free title on the land together with a true copy of the sale deed certified by a Gazetted Officer or got verified by a Corporation Officer, authorised by the Commissioner, in this behalf.' C.In 1975, the Andhra Pradesh Legislature enacted the Andhra Pradesh Urban Areas (Development) Act, 1975, being Act No.1 of 1975, S.2 defines the various expressions occurring in the Act. 'Authority' is defined by Cl.(b) as meaning an Urban Development Authority constituted under sub-s.(1) of S.3, for a development area under the Act. The expression 'development' is defined in Cl.(e) to mean 'the carrying out of all or any of the works contemplated in a master plan or zonal development plan referred to in this Act, and the carrying out of building, engineering, mining or to her operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development'. According to S.13, no development of land within the development areas designated under the Act shall be undertaken or carried out by any person or body, including any department of the Government, unless permission for such development has been obtained in writing from the Authority in accordance with the provisions of the Act. Even the pending works, it is provided, should comply with the requirements of S.13.

It is stated by Sri K. Janardhana Rao the learned Standing Counsel for the Municipal Corporation - and not disputed by the counsel for the petitioners - that the Municipal Corporation of Hyderabad has been constituted as the Authority for the purposes of the Act, as contemplated by cl.(b) of S.2.

Under the A.P.Urban Areas (Development) Act, Zoning Regulations have been made, which are called 'Zoning Regulations of Hyderabad Development Area, 1981'. Regulation 1,3 provides that these Regulations shall be read with the Building Bye-Laws issued under the Hyderabad Municipal Corporation Act, 1955 and that, all Regulations and Bye-Laws issued under the Hyderabad Municipal Corporation Act, 1955 and that, all Regulations and Bye-Laws made under the H.M.C.Act, in so far as they are in conflict with these Regulations, shall be invalid to that extent with effect from the date of coming into force of the Regulations. The expression 'development' is again defined by these Regulations, in the following words:-

'Development' ......'Development' with grammatical variation means the carrying out of building, engineering, mining or other operations in or over, or under land or water or the making of any material change, in any building or land, or in the use of any building or land, and includes redevelopment and layout and sub-division of any land, and 'to develop' shall be construed accordingly.' The expression 'owner' is also defined. The definition reads thus:-

'Owner' - means the person who receives the rent for the use of the land or building or would be entitled to do so if they were let. It also includes -

(a) an agency or trustee who receives such rent on behalf of the owner;

(b) 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;

(c) an agent or trustee who receives the rent of or is entrusted with or is concerned with any buildings devoted to religious or charitable purposes;

(d) a mortgagee or a lease-holder so empowered.'

Regulation 5.1 says that no person shall carry out development without obtaining a development permit from the Authority, unless exempted by State or Central Acts/Rules/Orders. According to Regulation 5.2, every person who intends to carry out development shall make an application in writing in the prescribed form (Appendix 'A'). Appendix A provides the form in which the application should be made, and the documents which must be enclosed to it. The documents to be enclosed to the application include the document or documents pertaining to 'ownership title'. Regulation 5.3 requires that all the plans shall be duly signed by the owner and the licensed Town Planner/Architect/Engineer, etc. Regulation 5-6.2 provides that if, within ninety (sixty?) days of the receipt of notice under Regulation 5.2, the Authority fails to intimate in writing to the applicant, its refusal or sanction, the notice with its plans and statement shall be deemed to have been sanctioned. However, such deeming permission shall not authorize such applicant to do anything on the site of the work in contravention of, or against the terms of lease, or title to the land, or against any Regulations, bye-laws or Ordinance. Regulation 12 empowers the Government to exempt any proposal for development of any site, or layout from the provisions of the said Regulations.

D. At this stage, it would also be appropriate to refer to the Building Bye-Laws made under the Hyderabad Municipal Corporation Act. Bye-Law 4.2 of these Bye-Laws provides for the application for building permit, and specifies the various document which must be enclosed to the application. Cl.(iv) of Bye-Law 4.2 reads thus:-

'(vi) Ownership Title :- Every application for building permit shall be accompanies by the following as proof of ownership:

(a) attested copy of the original sale/lease deed: and

(b) attested copy of Revenue Survey Sheet/Municipal/Survey Sheet with Mutation Record Number, or

(c) affidavit or other documents acceptable to the Commissioner. M.C.H.'

Bye-Law 6.2 provides that, if a building is sought to be erected, re-erected, altered or a compound wall is sought to be constructed on a plot abutting a road maintained by the Public Works Department, or abutting the property of Military Authority or the Government or other statutory body, the notice for permission to construct shall be made in duplicate, ad the building and site plans shall be in quintuplicate; one copy of notice with plans and site plan shall be forwarded by the Authority to the Officer-in-Charge of the Government Department. Military Authority or other statutory Body, enquiring whether he has any objection to the proposed construction. If no such report is received from such office within 15 days , it will be deemed that he has no objection. It is further stated, that, no permission shall be refused on the basis of any objection which is not sustained by any provisions of these Bye-Laws or any other law applicable thereto.

E. The learned Standing Counsel for the Corporation contends that the several statutory provisions mentioned in sections 'B','C' and 'D' above, perfectly warrant and justify the Circular dt. 27-3-1982 issued by the Municipal Corporation. We find it difficult to agree. None of the provisions relied upon, either expressly or by necessary implication, empower the Corporation to call upon an applicant - whether he applied for sanction of layout or for permission to construct a building, to produce, what is called, a 'clearance certificate' from the District Collector. The Circular, in effect, compels every applicant to get his title approved by the District Collector. The District Collector has practically been vested with the power to veto any application for sanction of layout, or for construction of building, by just refusing to issue the clearance certificate. This is a situation where the District Collector is not, by law, vested with the power to adjudicate titles. No statutory provision has been brought to our notice which provides for issuance of a clearance certificate by the District Collector. It is true that the District Collector felt bona fide that a number of persons are unauthorisedly occupying Government lands at Banjara Hills and are producing dubious document sot support their claims of ownership and were also obtaining sanction for layouts in respect of such lands on the basis of such dubious title-deeds, all of which is undoubtedly prejudicial to public interest; it is equally true that public interest has to be safe guarded and no person should be allowed to abuse a particular procedure prescribed by law to reap an unfair advantage over another, including the Government; but, it has to be done in a manner known to, or sanctioned by law. The position of the Government is, in reality, that of an objector. Take the illustration of a person applying for sanction of layout in respect of a particular land, claiming that he is the owner thereof, and another person coming forward with an objection-petition contending that since the land belongs to him, the sanction of layout should not be accorded to the applicant. What should happen in such a case? Three alternatives are open to the Corporation, viz. (I) because a dispute has arisen with respect to the ownership of the land in respect of which layout is asked to be sanctioned the Corporation may ask both the rival claimants to approach the civil Court, establish their title, and then approach the Corporation ; (ii) ignore the objection-petition on the ground that the Corporation has nothing to do with questions of title and/own possession; that , it is concerned only with the question whether the application has been made in accordance with the relevant statutory provisions, and if it is so made, to sanction it and leave the parties to fight out their claims elsewhere; and (iii) when an objection is received from a person claiming a rival tile, to make a summary enquiry into rival titles to find out who is the owner of the land, and if satisfied that the applicant is the owner of the land, to sanction the layout asked for by him; and if not satisfied as to his title, to refuse the sanction on the ground. In case the rival claimant also applies for sanction of layout, and if the Corporation is satisfied that the is the owner and not the original applicant, it may sanction his layout. The question is: which among the three alternatives is consistent with the provisions of law and serves public interest?

2. If we read the provisions in the H.M.C. Act relating to sanction of layout, along with the Layout Rules , 1965, the following facts emerge: the application for sanction of layout has to be made by the 'owner of a land' (See Appendix 'A' read with R.3). Indeed, R.4 expressly provides that the 'application shall bear the signature of the owner of the land.' Further, R.9 provides that the owner/applicant shall enclose to the application a non-encumbrance certificate from the Registration Department, in respect of the land covered by the layout, together with a true copy of the title-deed, attested by a Gazetted Officer. While making an application for sanction of layout in the form prescribed in Appendix 'A'. the applicant is also bound to make a declaration that he is enclosing a non-encumbrance certificate from the Registration Department, to his application, in support of his 'free title on the land' together with a true copy of the sale deed certified by a Gazetted Officer. Similarly, the Zoning Regulations, which too are of a statutory character, provide that an application for development permit has to be made in the form prescribed in Appendix 'A' thereof. The form prescribed by Appendix 'A' shows that the application has to be made by the owner of the land; he is also obliged to enclose to his application, documents in proof of his 'ownership title'. The expression 'owner' is also defined by the Regulations. A perusal of the definition of 'owner' in the Zoning Regulations made it clear that, the emphasis is upon the person in effective control and possession of the land, which is evident from the fact that persons entitled to receive the rent for the land, an agent, trustee, Receiver, executor , administrator, or manager appointed by a competent Court, as also a mortgagee or a lessee, are included within the definition. Same is the situation under the Building Bye-Laws, though, it is true, the said bye-laws come into play at a stage subsequent to the sanction of layout. It is thus clear from the several provisions referred to above that, an application for sanction of layout has to be made by the owner of the and; the statutory provisions also require that he should enclose to the application his title-deeds and a non-encumbrance certificate in proof of his title, and a free title at that. The expression 'owner' is also defined. In such a situation, it must be held that the authority competent to sanction the layout has to be satisfied, before sanctioning, that the applicant for sanction of layout is the owner of the land . That satisfaction has to be arrived at on the basis of the title-deed or documents as the case may be, produced by him, and the non-encumbrance certificate. The necessarily means and implies that, if another person comes and says that the applicant is not the owner, the authority has to look into that aspect and decide whether the applicant is the owner, or not, so that the layout applied for by him can be sanction, in case his application is found to be otherwise in order. It is true that, any determination made by the authority or any finding, if it can be called that, of the authority on the said question is not conclusive, and it is always open to the aggrieved person to approach the appropriate Court for vindicating or establishing his ownership but, the said determination/finding of the authority is good for the limited purpose of the Act and the Rules, i.e. for the purpose of the sanction of layout. Any decision or decree obtained by a person concerned would certainly be binding upon the authority, and would override any determination/finding of the authority.

3. That the authority competent to sanction the layout has the power to make such enquiry and for that purpose call for further information required by him, is evident from S. 389 of the H.M.C. Act too. It says that, if any notice given under S.388 of the Act, does not supply all the information which the Commissioner deems necessary to enable him to deal satisfactorily with the case, he can call upon the person who gave the notice, to furnish the required information. This power must be read in the context of the Layout Rules, as also the Zoning Regulations, referred to above. In this context, reference to bye-law 6.2 of the Municipal Corporation Building Bye-laws, 1981, would equally relevant. It provides that, where any construction is sought to be made on a site abutting a road maintained by the P.W.D. or abutting the property of a Military Authority, Government or other statutory body, notice shall be given to such department, Authority, Government, or other Body, to submit objections, if any, it has, to the permission asked for. The bye-law contemplates that the objection -petitioner should sustain his objection; otherwise, the permission asked for would be granted.

4. We may in this connection refer useful to the decision of the Supreme Court in M.C. Chockalingam v. V. Manickavasagam, : [1974]2SCR143 . That case arose under the Madras Cinemas (Regulation)Act , 1955, and the Rules made thereunder. R.13 as follows:-

'If the applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records relating to his ownership and possession thereof. If he is not the owner, he shall, to the satisfaction of the licensing authority, produce documentary evidence to show that he is in lawful possession of the site, building and equipment.'

As explained by the Supreme Court, the Rule is in two parts. The first part deals with an applicant for licence who is the owner of the site, building and equipment, while the second part deals with an applicant who is not such an owner. It was observed 'even if the applicant for licence is the owner of the property, he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in 'lawful possession', although the word 'lawful' is not used in the first part....If , however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property...........'. In that case, both the lessor and the lessee applied for a licence; while the lessor applied for a fresh licence, the lessee applied for renewal of the licence. After considering the claims and contentions of both the parties, the licensing authority granted renewal of licence in favour of the lessee, which matter ultimately went up to the Supreme Court,. The relevance of this decision in the facts of the present case is this: First part of R.13 of the Madras Rules is practically on the same lines as the Layout Rules and the Zoning Regulations, referred to above. Both are regulatory powers. The decision of the Supreme Court recognizes that, where the Rules require the applicant for licence to satisfy the licensing authority that he is the owner and in possession of the property, and if a rival person comes forward and either disputes the owner's claim or puts forward a rival claim for licence, the licensing authority has the necessary and implied power to enquire into their rival claims and contentions, and decide as to who is entitled to the grant/renewal of licence. Taking the same analogy it must be held herein also that, when the Rules speak of an application being made by the owner and his producing title-deeds and the documents in support of his title - a free - title - it could not have been without a purpose and that, incase of a dispute, the appropriate authority does have the necessary and implied power to enquire into this aspect and determine whether the applicant or, if there be more than once applicant, who among them is entitled to the sanction of layout. In this view of the matter it would be too simplistic to say that the authorities under H.M.C. Act, or the Zoning Regulations, do not have the power to decide question of title. As explained above, while they cannot decide question of title, they can determine, for their own purposes, whether an applicant for licence satisfies the requirements of all the Rules, which, inter alia, include the satisfaction that the applicant is the owner of the land. Since both the Layout Rules and the Zoning Regulations have to be read together in the matter of sanction of layout, the definition of 'owner' in the Zoning Regulations must also be kept in view in determining the said aspect.

5. Now, the Collector's letter dt. 5.3.1982 cannot be put on a higher footing than that of a general objection to grant of permission for construction/approvals of layouts, in Banjara Hills area (Shaikpet village). The letter is not written in pursuance of any statutory power, nor can the Municipal Corporation treat the said letter as a binding directive. Mr. K. Janardhana Rao, the learned Standing Counsel for the Corporation, contended that, under Chapter XX of the H.M.C. Act, the Government exercises a good amount of control over the Corporation, which is said to be evident from Ss.675 to 679. It is, however, unnecessary for us to examine this contention, for the simple reason that the Collector is not 'Government' within the meaning of that expression in Chap.XXI, and her letter cannot be treated as, or equated to a binding directive or order of the Government. The Corporation, therefore, was in error in issuing the Circular dt. 27-3-1982. The said Circular is ultra vires the powers of the Chief City Planner of the Corporation, as also the powers of the Corporation. The Corporation has to act within the four corners of the H.M.C.Act and any other statutory provisions governing it, and cannot act beyond them. As we gave demonstrated above, the several provisions of law levied upon by the Corporation, did not warrant or justify the said Circular. It is , accordingly, quashed.

6. The quashing of the said Circular does not, however, mean that the Corporation has no power to take cognizance of the letter of the Collector, or her objection. The Corporation shall keep in mind the said general objection while sanctioning the layouts with respect to lands in Banjara Hills area (Shaikpet village) including the plan referred to in the Collector's letter, if an when communicated and in each such case, satisfy itself that the applicant for sanction of layout is the owner of the land, as contemplated by the Layout rules and the Zoning Regulations; it shall sanction the layout only if it is satisfied in that behalf, after making such enquiry as it thinks appropriate. The Corporation shall also have the power, in such a situation, to call upon the Collector to submit his specific objections, if any, and any other documents which the Collector may wish to produce in support of his objection. It is, however, for the corporation, or the appropriate authority of the Corporation, as the case may be (authority competent to sanction the layout under the Layout Rules and the Zoning Regulations), to look into the matter and determine whether the applicant is the owner of the land, or not. Any finding or conclusion arrived at by the authority in this behalf shall, of course, be subject to the decision of a Court. It is reiterated that the determination of the authority on the above aspect shall be valid only for the purpose of the sanction of layout, and nothing more.

7. The writ petitions are, accordingly, allowed and the Circular issued by the Chief City Planner. (Town Planning Section), Municipal Corporation of Hyderabad, being Circular Memo No.692/TP/A2/82, dt. 27-3-1982, is quashed herewith. The applications (notices) submitted by the petitioners for sanction of layout, shall be considered by the appropriate authority of the Corporation, in accordance with law, and in the light of the observations contained in this judgment. There shall be no order as to costs. Advocate fee rs.200/- in each.

8. Writ Petitions allowed.


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