JUDGMENT
1. The petitioner seeks a writ of, mandamus, declaring the proceedings No. SOIIPS/86/9940, dt.- 29-12-1986 of the first respondent insisting upon Urban Land Ceiling permission and production of title deeds for considering the petitioner’s’ application for grant of permission dt/- 10-7-1986 for construction of a building complex, as wholly illegal, arbitrary, without jurisdiction and ultra vires of Hyderabad Municipal Corporation Act and Rules.
2. The petitioner is a partnership firm. On 19-11-1984, M/s. Laxmi Prasad Agarwal and Rajkumar Agarwal entered into an agreement with Dr. (Mrs.) Chandra Rekha the alleged owner of the premises bearing Municipal No. &3-1192 with sub-numbers thereon, known as ‘Kiran Mahal’ situated at Kundan Bagh Hyderabad admeasuring about 9,1968 square yards, to purchase the same. It is alleged that pursuant to the said agreement of sale, substantial amount of consideration has been paid to the said owner who also executed a general power of attorney in their favour and handed over the power on of property to them. With a view to develop that land by constructing a residential complex, the said agreement holders entered into an agreement of partnership under the name and style of “M/s. Annapuma Builders, hereinafter referred to as the petitioner, applied to the first respondent (for short MCH) for permission for construction of a building complex. It is alleged that all the formalities required under the rule have been complied with. By order dt. 29.12-1986 the plans were returned unapproved by the respondents on the ground that the Urban Land Ceiling clearance and the ownership documents have not been produced and the declaration form in respect of Urban Land Ceiling has not been countersigned by a Gazetted Officer. This order is assailed in the writ petition.
No counter affidavit has been filed. The question whether it is open to the MCH to refuse to consider the application for permission to construct a building complex or want of clearance of Urban Land Ceiling authorities where the lands in excess of ceiling limit is no longer res integra . In many decisions of this court it has been held that the Corporation cannot refuse to consider the Application for construction of a building for want of clearance of the Urban Land Ceiling Authority and the learned counsel for both sides agree on this aspect.
3. The only question that remains for consideradon in this case is whether the MCH ; competent to ask the petitioner to produce the documents of title before considering the application for construction. The learned counsel for the petitioner relying on the decisions in Fatima Begum v. Commr. Hyderabad Municipal Corpt., Hyderabad (1957) 2 Andh WR 483: (AIR 1958 Andh. Pra. 170) and Mirza Wahed Ali Baig v. Special Officer Municipal Corpn. of Hyderabad, 1975 APHN 1; submits that the Corporation has no power to require production of the document of title. Whereas the learned standing counsel for the Corporation relying on the decision in Subhash Kumar Zohidi v. Special Officer, Municipal Corpn. of Hyderabad, Town Planning Department , submits that the action of the MCH in calling upon the petitioner to submit the documents of tide is neither illegal nor ultra vires of the Act and the Rules.
4. Before dealing with the rival contentions of the parties it may be useful to note the relevant provisions of the H.M.C. Act and the Rules.
5. Section 428 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) reads as follows:
‘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 for this purpose under S. 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 the name of the person whom he intends to employ to supervise its erection.”
6. Bye-law No. 3.2 of the Municipal! Corporation Building Bye-laws, 1981 under S.586 of the Hyderabad Municipal Corporation Act, 1955, is in the following terms:
“3.2. Application for building permit :- Every person who intends to erect- re-erect or make material alteration in any place in budding or part thereof as referred to in S. 428(2) and S. 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 front time to time be determined in this behalf by the authority.”
APPENDIX-A
(Bye-law No. 3.2)
Form for first Application to Erect, Re -erect, Demolish or to make Alteration in Building.
(Under S. 428/433 of the Hyderabad Municipal Corporation Act, 1955)
Municipal Corporation of Hyderabad.
Name of Circle/Division …………
From :
Name of the owner ............... Lessee of the site/plot/building ............ Address of the owner .................... To, The Authority, Municipal Corporation of Hyderabad, Hyderabad (A. P.) Sir,
I/We ……………….. owner/lessee ……..of land/building, the particulars of which are given below hereby give you notice that I/We intend to erect, re-erect/add/alter/execute a. building/works in accordance with the Provisions of the Hyderabad Municipal Corporation Act, 1955 (printed overleaf) and Bye-laws made thereunder, and according to plans submitted herewith.
Details pertaining to land/building.
(1)-(2) xxxx xxxx xxxx xxxx
(1)
(3) Certificate:
I/We, declare that I/We am/are the absolute owner/owners/lessee of the land on which I/We intend to erect the building and. am/are enclosing copies of relevant Documents of ownership/lease certified by a Magistrate/Notary Public/Gazetted Officer/an Officer authorised by the Commissioner in this behalf.
I/We have gone through the Building Regulations contained in Hyderabad Municipal Corporation Act, 1955, printed overleaf and bye-laws made thereunder have satisfied by myself/ourselves that the buildingplans/and other documents are in accordance with the provisions contained therein.
I request that the construction may be approved and permission accorded to me to execute the work.
Yours faithfully,
Signature of Owner/Owners/Lessee
Authorised Agent/Agents.”
From the above it is clear that under the Building Bye-laws, document of title has to be enclosed along with the application seeking permission for construction.
7. In the first case cited by the learned counsel for the petitioner, the Corporation granted permission for construction of a building on the site. But later it cancelled the same on the ground that the petitioner misrepresented the fact as the site in question was acquired by the Government for certain purposes. The petitioner contended that his father’s title is established in a litigation before the court However, the Municipality directed the petitioner to pull down the building. In this context the court held :
“It is beyond dispute that the Municipal Corporation is not empowered to adjudicate upon the question of title.”
The ratio of this decision is that adjudication on the question of title is beyond the powers of the Corporation.
8. In the second case a Division Bench of our High Court laid down the same principle in the following words:
“the provisions contained in Ss. 428, 429 and 431 of the Hyderabad Municipal Corporation Act are part of the Building Regulation and they are intended to enable the Commissioner to get the necessary information before giving permission. They do not either expressly or by necessary implication authorise the Commissioner to decide questions of title between contending applicants.”
In the present case, respondents only called upon the petitioner to submit its title deed. There was not even an attempt to adjudicate upon the question of tide. In view of this the impugned order of the Corporation asking the petitioner to produce the document of title, cannot be said to be contrary to the principle decided in the said cases.
9. In a recent case, a Division Bench of our High Cowl considered the question of the scope of the power of the MCH under layout rules of Andhra Pradesh Urban Areas (Development) Act. 1975 and Andhra Pradesh Urban Areas (Development) Act, Zoning Regulations and laid down
“When the Rules speak of an application being made by the owner and his producing title deeds and other documents in support of his title a free title it could not have been without a purpose and that, in case of a, dispute, the appropriate authority does have the necessary and implied power to enquire, into the aspect and determine whether the applicant or, if there is more than one 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 the H.M.C. Act, or the, Zoning Regulations, do not have the power to decide questions of tide. As explained above, while they cannot decide questions of title, they can determine, for their own, purposes, whether an applicant for license 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 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.’
From a reading of the above decisions the Following principles emerge
(i) The MCH has no power to adjudicate upon the question of title of rival claimants For granting permission to make construction on the land in question;
(ii)
(iii) that the MCH does have the power to make summary enquiry as to who among the rival claimants has prima facie tide, though such a decision would not be binding on any Doe of the parties;
(iv)
(v) the Commissioner has power to call upon the party who applies for permission for construction under S. 428 read with Building Bye-law No. 3.2, to produce the document of title, before considering the application of an applicant for construction.
(vi)
10. In the instant case, the impugned order merely calls upon the petitioner to produce the document of title which do not amount to adjudicating upon the tide of the petitioner. With a view to satisfy itself as to whether the requirements of the Act and the Rules have been complied with the MCH does have power to require production of title deed by the petitioner. The impugned order in so far as it relates to production of document of title deed is within the competence of the Commissioner. It cannot be said to be ultra vires of the H.M.C. Act or the Rules and the Bye-laws.
11. For the aforesaid reasons, the writ petition is allowed in part. No costs.
12. Petition partly allowed.