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2012 Supreme(AP) 453
High Court of Andhra Pradesh
G. ROHINI
Abdul Jabbar
Versus
Government of A.P., rep., by its Principal Secretary, Revenue Department, Secretariat, Hyderabad & Others
WRIT PETITION No.13382 of 2011
Decided On : 20-04-2012
For the Petitioner:A. Suryanarayana, Advocate.
For the Respondents: 1, 2 & 4, Government Pleader for Revenue, R3, Dr. Y. Padmavathi, Standing Counsel for GHMC.
Headnote:
Constitution of India – Land Law –Suit for Recover of Possession - Petitioner claims title and possession in respect of land bearing Municipal It is stated that the said land originally was allotted to one by Development Authority and in turn he had gifted the same to the father of the petitioner petitioner’s father continued in possession and enjoyment of the said property with absolute rights till his death. Thereafter the petitioner along with his brother and sister has succeeded to the same and has been continuing in possession and enjoyment by paying the taxes Pass Book in favour of the petitioner apart, on an application made by the petitioner District by memo certified that the said land is a patta land and there is no objection for transfer / mortgage of the same. While so, having proposed to make construction over the land in question, the writ petitioner made an application requesting the 2nd respondent Joint Collector, to issue No Objection Certificate so as to enable him to obtain the building permission from the 3rd respondent – Greater Hyderabad Municipal Corporation said application of the petitioner was rejected by the 2nd respondent by endorsement stating that as per the report submitted by the petitioner was not in possession of the land in question and some third parties were in possession and therefore the Committee constituted under grant of NOC in its meeting had rejected the petitioner’s request. It was mentioned that the GHMC was also informed not to accord building permission to the petitioner or any other person in respect of the premises in question. Aggrieved by the said order passed by the 2nd respondent, the present writ petition is filed –Held, Court have heard the learned counsel for the petitioner and the learned Government Pleader for Revenue appearing for the respondents 1, 2 & 4 as well as learned Standing Counsel appearing for GHMC. At the outset, it is to be noticed that even according to the respondents the land in question is a private patta land. A copy of the report of on the basis of which the impugned order came to be passed has been placed before this Court by the learned Government Pleader and it shows that the land in question is classified as private land law is well-settled that No Objection Certificate cannot be refused as long as the record discloses that the Government has no subsisting interest or claim over the property. May be that the name of the petitioner or his father was not entered in the Revenue records, however admittedly the Revenue records contained the name of the original allottee Abdul and the fact that the allotment in his favour was recognized by the Government is not in dispute. It is also a well-settled principle of law that production of No Objection Certificate from the Revenue Authorities is not a condition precedent for consideration of the request for building permission. Hence the 2nd respondent while rejecting NOC under the impugned order committed an error in informing the GHMC not to accord building permission in respect of the premises in question –Petition is accordingly allowed
The petitioner claims title and possession in respect of Ac.3-17 guntas of land bearing Municipal Plot No.129/49/D1, Banjara Hills, Shaikpet Mandal. It is stated that the said land originally was allotted to one Sri Abdul Lathifuddin @ Abdul Lathifkhan by the Jubilee Hills Development Authority and in turn he had gifted the same to the father of the petitioner on 16th Behman 1358 Falsi. The petitioner’s father continued in possession and enjoyment of the said property with absolute rights till his death. Thereafter the petitioner along with his brother and sister has succeeded to the same and has been continuing in possession and enjoyment by paying the taxes. The Tahsildar, Golconda Mandal, has also granted Ryot Pass Book in favour of the petitioner. That apart, on an application made by the petitioner, the Tahsildar, Golconda Taluk, Hyderabad District by memo dated 18.01.1984 certified that the said land is a patta land and there is no objection for transfer / mortgage of the same. While so, having proposed to make construction over the land in question, the writ petitioner made an application dated 10.01.2011 requesting the 2nd respondent Joint Collector, to issue No Objection Certificate so as to enable him to obtain the building permission from the 3rd respondent – Greater Hyderabad Municipal Corporation (GHMC). The said application of the petitioner was rejected by the 2nd respondent by endorsement dated 8.4.2011 stating that as per the report submitted by the SDC (LPO) and Tahsildar, Shaikpet, the petitioner was not in possession of the land in question and some third parties were in possession and therefore the Committee constituted under G.O.Ms.No.2111, dated 5.12.2005 and G.O.Ms.No.93, dated 28.01.2006 for grant of NOC in its meeting dated 30.03.2011 had rejected the petitioner’s request. It was mentioned that the GHMC was also informed not to accord building permission to the petitioner or any other person in respect of the premises in question. Aggrieved by the said order passed by the 2nd respondent dated 8.4.2011, the present writ petition is filed.
It is contended by the petitioner that the impugned order which was passed on an erroneous assumption that the petitioner was not in possession suffered from a patent error on the face of the record. It is also contended that the impugned order which was passed without making proper field inspection and without affording a reasonable opportunity to the petitioner to make his representation is arbitrary and illegal.
The Tahsildar, Shaikpet Mandal filed a counter-affidavit on behalf of the respondents 1 to 4 in which the fact that the land in question i.e., Plot No.129/41/D1 situated in the defunct Jubilee Hills Municipality is a recognized plot in favour of Abdul Latheefkhan has not been disputed. However, it is contended that there is no record to substantiate the claim of the petitioner that the said Abdul Latheefkhan had gifted the land in question to his father through Hiba and in turn the petitioner and his family members had acquired title by way of succession. It is also contended that on inspection it was found that the petitioner was not in possession of the land in question and it was in the occupation of the third parties. It is further contended that since Plot No.129/41/D1 consists of Ac.3-17 guntas or about 13850 sq. mts. which is more than the ceiling limit of 1000 sq. mts. prescribed under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976, the petitioner or his father should have filed a declaration under Section 6 of the said Act in the year 1976 itself. Since no such declaration was made and since the petitioner is not in physical possession, the claim of the petitioner that his father acquired title by oral gift (Hiba) stated to have been made by Abdul Latheffkhan cannot be accepted. It is also stated that in the Revenue and Town Survey Records, the land in question still stands in the name of the original allottee Abdul Lat
