THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.
No.
37621 o”
04. 01.2013 Mirza Khusru Ali Baig & others The Greater Hyderabad Municipal Corporation, rep.
by its Commissioner & another Counsel for the petitioners: Sri N.
Ashwani Kumar Counsel for Respondent No.1 : Dr.
Y.
Padmavathi Counsel for Respondent No.2 : Sri M.A.K.
Mukheed HEAD NOTE: Cases referred 1.
AIR 195.Supreme Cour”
2.
(1970) 1 Supreme Court Case”
3.
AIR 195.Supreme Cour”
4.
AIR 195.Supreme Cour”
5.
AIR 195.A.P.
6.
AIR 198.Supreme Cour”
7.
(2003) 7 Supreme Court Cases 465 ORDER: This Writ Petition is instituted seeking a writ of mandamus for declaring the action of the 1st respondent Greater Hyderabad Municipal Corporation in cancelling through their proceedings dated 24.11.2012 the building permit, granted to the petitioners as on 01.05.2012, as illegal.
The case of the petitioners is that one Smt.
Tashjeebunissa Begum purchased a vast extent of immovable property of approximately 15870 square yards which is known as Mumtaj Mansion near AC Guards, Hyderabad, at a public auction conducted by the competent authority of evacuee properties.
It appears, the public auction was conducted on 06.01.1962.
The competent authority has also granted the necessary sale certificate in her favour on 14.08.1963.
Smt.
Tashjeebunnisa Begum is stated to have died on 27.09.1976 and her husband and children seemed to have succeeded to her estate.
Even her husband, Mr.
Asif Ali Baig is stated to have died on 10.09.1986 and it is now stated that petitioners 1 to 4 herein are the legal heirs of Mr.
Asif Ali Baig.
It is stated further that, from the above estate, during the lifetime of Mr.
Asif Ali Baig and Smt.
Tashjeebunnisa Begum, certain extents of open lands have been sold to 3rd parties, while retaining still substantial extents of land with them.
Petitioners 1 to 4 herein, with an intention to develop the subject property, entered into a registered development agreement-cum-general power of attorney on 14.05.2010 with M/s Tirumala Constructions, a partnership firm.
Thereafter, the petitioners have approached the 1st respondent Municipal Corporation for securing a building permission.
The petitioners have also applied for grant of a 'No Objection Certificate' and the Joint Collector, Hyderabad District has referred the matter for the purpose of securing confirmation, to the Chief Commissioner of Land Administration, so that the genuineness of the sale certificate granted in favour of Smt.
Tashjeebunnisa Begum can be ascertained.
The Chief Commissioner of Land Administration, it appears, has confirmed, through his proceedings dated 21.08.2010 that the sale certificate granted by the competent authority of evacuee properties at Bombay in favour of Smt.
Tashjeebunnisa Begum is a valid one.
Thereupon the Joint Collector, Hyderabad District, through his endorsement, dated 29.09.2010, granted a 'No Objection Certificate' in an extent of 2082 square meters for the purpose of considering sanction of building plan by the Municipal Corporation of Hyderabad.
It was made clear that the said endorsement does not constitute any title or right over the said land by the applicant.
By a similarly-worded endorsement, dated 04.11.2010, another 'No Objection Certificate' was accorded by the Joint Collector over land of an extent of 281 square meters for the purpose of construction of a building.
Taking these 'No Objection Certificates' into account and consideration and duly considering the applications submitted by the petitioners for construction of a building, comprising of ground + four upper floors, the Greater Hyderabad Municipal Corporation accorded necessary building permit on 01.05.2012, subject to the conditions specified therein.
It is the case of the petitioners that they have started construction of a building in accordance with the building permit and they have not deviated while making constructions with regard to the said building permit.
However, on 31.10.2012, a show cause notice was issued by the Commissioner, Greater Hyderabad Municipal Corporation, requiring the petitioners to show cause why the building permit granted on 01.05.2012 should not be cancelled in accordance with the provisions contained under Section 450 of the Hyderabad Municipal Corporation Act, 1955 (for short, 'the Act').
The petitioners have submitted a representation dated 08.11.2012, which was received in the Office of the Commissioner as well as the office of the Hyderabad Municipal Corporation on 09.11.2012.
Since the show cause notice dated 31.10.2012 is based upon a letter said to have been sent up by the Andhra Pradesh State Wakf Board on 22.09.2012, the petitioners sought for a copy of the said representation said to have been submitted by the Wakf Board objecting to the grant of building permit to the petitioners.
However, on 19.11.2012, the Chief City Planner, Greater Hyderabad Municipal Corporation has conveyed to the petitioners that a decision has been taken for giving an opportunity to hear the contentions of the petitioners personally and accordingly, a meeting has been proposed in the chambers of the Assistant Commissioner (Planning), Greater Hyderabad Municipal Corporation on 21.11.2012 at 03.30 p.m.
It is the assertion of the petitioners that they have attended the Office of the Assistant Commissioner (Planning), Greater Hyderabad Municipal Corporation on 21.11.2012 and that they were informed that the Assistant Commissioner was not attending to the office as he was away in New Delhi on the said day and a further date of hearing would be communicated to them, but however, without anything more, the impugned order was passed by the Commissioner of Greater Hyderabad Municipal Corporation on 24.11.2012 cancelling the building permit granted to the petitioners.
Hence, this Writ Petition.
Heard Sri D.V.
Sitharama Murthy, learned Senior Counsel on behalf of Sri N.
Ashwani Kumar, learned counsel for the petitioners, Dr.
Y.
Padmavathi, learned Standing Counsel for the 1st respondent Corporation and Sri M.A.K.
Mukheed, learned Standing Counsel for Andhra Pradesh State Wakf Board, the 2nd respondent herein.
It is contended by Sri D.V.
Sitharama Murthy, learned Senior Counsel that the petitioners have not suppressed any fact while submitting their building application in the prescribed format to the Municipal Corporation.
In fact, though the petitioners are not obliged to secure a 'No Objection Certificate' beforehand, for obtaining permission for construction of buildings, they approached the competent authority, namely the Joint Collector, Hyderabad District and secured 'No Objection Certificate' from him and placed the same before the Greater Hyderabad Municipal Corporation for it to consider granting permission.
It is also further asserted by the learned Senior Counsel that while submitting the drawings, it was clearly indicated therein that there are two graves in the site in question and the petitioners are not at all interested in dislocating those graves and consequently, an adequate space in the form of a corridor is left out for having free access to those graves and the petitioners are seriously religious-minded people and they are least interested therefore, in disturbing the graves of their respectable elders and hence, the Corporation has been mistaking the petitioners as guilty of misrepresentation of facts.
It is the further case, as urged before me, that the petitioners are never interested in encroaching upon the neighbouring land belonging to the mosque in question.
Without having regard to the factual situation, the 2nd respondent Wakf Board has unnecessarily poked its nose with inaccurate statements of fact and approached the 1st respondent Corporation.
It is further urged that the petitioners have never encroached upon the land belonging to the mosque or the property of any wakf and hence, the 1st respondent Corporation is totally unjustified in cancelling or revoking a building permit granted in favour of the petitioners earlier on 01.05.2012.
It is further contended that when the petitioners have urged the Municipal Corporation to make available a copy of the representation said to have been submitted by the Wakf Board, objecting to the building permit granted to the petitioners, on 22.09.2012, instead of supplying a copy of the said representation to enable the writ petitioners to file their detailed objections in the matter, the 1st respondent Corporation has unilaterally proceeded in cancelling the building permit based upon such a representation dated 22.09.2012 of the Andhra Pradesh State Wakf Board.
Importantly, when an opportunity of personal hearing is provided and it has not materialized, due to non-availability of the Assistant Commissioner, the petitioners could not have been described as to have failed to avail the opportunity of hearing given to them.
Therefore, it is urged that the impugned order is also in contravention of the principles of natural justice on the subject.
Sri M.A.K.
Mukheed, learned Standing Counsel for the 2nd respondent Wakf Board would contend that Maszid-e-Mumtaz Mansion is a declared wakf property.
Without any respect for the wakf property and the sentiments attached thereto, the petitioners have demolished an old existing compound wall of the mosque and also encroached upon the land belonging to the Wakf Board to an extent of 240 square yards.
Sri Mukheed would further contend that by using heavy building machinery, the petitioners have caused extensive damage to the tombs existing in the neighbouring premises and the petitioners have also dug up the two graves lying in the site in question and thus offended the sentiments of the larger Muslim community.
He therefore, urges that the Writ Petition deserves to be dismissed, as there is no merit therein and further if at all the dispute with regard to the encroachment or otherwise of the wakf property is to be resolved, the petitioners cannot seek any such resolution in this Writ Petition, but they must approach the Wakf Board constituted under the Wakf Act, 1995.
Dr.
Y.
Padmavathi, learned Standing Counsel for the 1st respondent Corporation would urge that the petitioners have misrepresented the facts relating to their property boundaries and further they have departed from the approved building plan.
If they have encroached upon the neighbours' property and have been making constructions thereon, the Corporation is entitled to examine the said issue at the instance of the neighbouring property owner.
The Corporation cannot be a helpless spectator, but it is entitled to examine the matter on merits and then pass appropriate orders.
When an opportunity of hearing is accorded to the petitioners, according to the learned Standing Counsel for the Corporation, they failed to avail the same.
Hence, no exception need be taken to the impugned order.
Section 428 of the Act required every person, who intends to erect a building, to give to the Commissioner a notice of his intention, in a form obtained for this purpose under Section 435 of the Act, specifying the position of the building intended to be erected, the description of building, the purpose for which it is intended, its dimensions, the name of the person whom he intends to employ to supervise its erection.
In terms of Section 429 of the Act, power is conferred upon the Commissioner to call upon the person, who has tendered the notice of his intention to construct a building, to furnish to the Commissioner the information relating to the said building and also the land over which the said building is sought to be erected.
Similarly, Section 431 of the Act enables the Commissioner to call upon the applicant to supply such additional information as is necessary to enable the Commissioner to deal satisfactorily with the case.
Section 432 of the Act declares that if the requests made in terms of Sections 429 and 431 of the Act are not complied with, then the notice under Section 428 shall be deemed not to have been given at all.
Thus, the Commissioner is legitimately entitled to call upon every applicant to furnish such information as is relevant and necessary for him to consider the application delivered in terms of Section 428 of the Act, prior to sanctioning the building permission sought for.
As is noticed supra, the Commissioner is also entitled to ask for such information, as is necessary for him before sanctioning the building permission, relating to the land over which the building is sought to be erected.
Section 450 of the Act empowers the Commissioner to cancel permission, if he is satisfied that the building permission was granted by him in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished by the applicant.
Therefore, prior to cancellation of a building permission, it would be absolutely necessary for the Commissioner to be satisfied that the building permission was earlier granted by him as a consequence of any material misrepresentation or fraudulent statement contained in the notice delivered for the applicant who sought for permission for erection of a building.
Before I consider the right of the Commissioner to cancel the building permission, it would be appropriate to notice the principles concerning the right and title to an immovable property.
The word 'property' is an ambiguous term.
It sometimes refers to the thing itself.
For example, "that land is the property of Mr.X." Some other times, it refers to the right a person has over a particular thing, such as, right of lease or other interests in land.
Therefore, law relating to property concerns with the study of legal relations between persons with respective things, the things in question being scarce resources.
Hence, Law of Property deals with the rules as to how persons can acquire and dispose of the right to such things.
An example of a right which does relate to the use of a thing, but at the same time does not amount to a property right is provided by Hill v.
Tupper -, 159 English Reports 51, where a owner of a canal granted a lease of the premises on its banks to the claimants, a boat proprietor.
Among the rights granted in the lease was the sole and exclusive right or liberty to put or use boats on the said canal and let the same for hire for the purpose of pleasure only.
The defendant, the landlord of an inn adjoining the canal, caused an interference with the claimant's right by putting his own boats on the canal.
The claimant sued, but failed on the ground that the claimant's right was not a property right and hence not exercisable against third parties.
Thus, it is important to note that, one of the facets of exercisability of right against third parties came to be illustrated by the rule 'nemo dat quad non habet (no one gives what he does not have).
An element in title should constitute legal ownership, a right to possession and interest in the property.
Ownership and title are not exchangeable terms.
To render the title to a property meaningful, the titleholder should have not only the ownership but possession of the property which he is capable to freely transfer to any other person.
Property rights sometimes can be viewed as negative in nature, in that, though they give their holder a monopoly over the use of the thing to which they relate, they do so because they exclude others from access to it.
The right- holder's monopoly of access implies an ability to relax in favour of others, either gratuitously or for a price, as illustrated by the decision of Scott, J in Anchor Brewhouse Developments v.
Berkely House (1987) 38 Building Law Reporter 82.
The defendant owned a development site in London and the claimants owned adjoining properties.
In order to develop its site, the defendant erected a number of tower cranes on its own land but which, because they had to be left free to swing in the wind, would sometimes swing over the claimants' land.
Because of the height at which it occurred, the overswinging in no way interfered with the claimants' use of their land, and when sued for trespass, the defendant denied that there was any wrong at all, suggesting that the claimants were not suffering any tangible harm.
This argument was rejected by Scott, J.
"One of the rights", he said, "of an owner of property is the right to allow others on terms acceptable to the owner to use the property"; another right is "the right to prevent others from using the property." The use by the defendant of the over sailing cranes deprives the claimants to these rights.
It deprives the claimants of the right to bargain as they wish for grant of their rights over their property.
When we examine the provisions of the Hyderabad Municipal Corporation Act, 1955, what emerges is while the Commissioner is entitled to seek for such information, as is needed for him to be satisfied that the applicant has got title over the property in question, but at the same time, he cannot enter upon an adjudicatory process or role for resolving the inter se title disputes.
He has no power to adjudicate or pronounce an opinion upon the title of a person.
If he is satisfied that the applicant has got prima facie title over the immovable property in question, where the building is sought to be erected, he should accord necessary building permission if the proposal is otherwise in accordance with law.
But at the same time, if, any time after the building permission is accorded, the applicant deviates from the said building permission and makes constructions, such a building permit can be cancelled.
For instance, if a particular piece of property is lying, let us say between ABCD boundary limits and the applicant shows prima facie title to the land bound within ABCD limits, then the building permission applied for thereon can be granted, but thereafter, if the applicant were to make a departure therefrom and start making constructions beyond the boundaries or limits of ABCD, then, the Commissioner is entitled to hear/entertain objections from the affected party and ultimately, take a decision to prevent the applicant from making any such constructions beyond the ABCD limits of the land over which the permission is sought for for construction of a building.
This issue can easily be grasped from the diagram enclosed herein below.
R O A D A B G E | | | | | | | | | C D H F For instance, any applicant can lawfully be the owner and titleholder for the property bound by ABCD limits.
If a building permission applied for by him, when found to be in accord with the building byelaws and other regulations and when such permission is granted, if he were to start making constructions within the land bound by BDEF, the Commissioner is entitled to be approached by the titleholder for the land bound by the limits BDEF and ask for his intervention or cancellation of building permission accorded to the applicant.
Any such exercise on the part of the Commissioner does not amount to resolving a title dispute, but, it amounts to a case of insisting upon the permit holder to confine his area of construction strictly to the limits of the land applied for by him i.e.
ABCD.
Even assuming that the applicant may not make constructions completely in the land bound by BDEF as shown in the illustration, but makes construction in land which is bound between AGCH, even then, the local body is not helpless in stopping the improper deviations of the building permit.
No constructions having been allowed or permitted in the land bound by BGDH, the local body would be entitled and justified in preventing any such constructions coming up there.
An exercise of that nature would not also amount to resolving a title dispute between two contenders.
That would be a mere case of rendering the building permit holder confine making constructions within the land over which he has prima facie title.
But however, in any case, the Corporation is bound to adhere to the principles of natural justice before any punitive action is resorted to by them.
A building permission accorded once, if it is cancelled later on, it would surely and squarely impact the building permit holder and the applicant adversely.
When any adverse decision is taken, be it administrative or quasi-judicial, least that is expected in such a process is adherence to the principles of natural justice.
In the instant case, the 2nd respondent Wakf Board appears to have lodged a complaint with the Commissioner on 22.09.2012.
That formed the true basis or platform for initiating action against the petitioners.
However, the petitioners have not been furnished a copy of the said representation dated 22.09.2012 submitted by the Andhra Pradesh State Wakf Board along with the show cause notice dated 31.10.2012.
Most strangely, even when asked for supplying a copy thereof, as was clearly done by the petitioners on 09.11.2012, the respondent Corporation has not furnished the petitioners a copy of the said representation.
In other words, the petitioners are not at all in the know of the contents of the objections raised by the Wakf Board.
They are literally groping in the dark.
They are not able to show effective cause for want of knowledge as to which aspect of the matter is likely to be viewed adversely by the Commissioner.
Therefore, before any final decision is taken by the respondent Corporation, the least it could have done was to furnish the petitioners a copy of the representation said to have been made by the Andhra Pradesh State Wakf Board.
Failure to furnish a copy thereof completely disentitles the Commissioner from relying upon the same for taking any further action against the petitioners.
It is fundamental that no man should be condemned behind his back.
If the information gathered against the petitioners is not furnished to them, there is no way that the petitioners can furnish any answer.
Instead, all that the Corporation did was to call upon the petitioners to participate at a personal hearing by issuing a notice in that regard on 19.11.2012, fixing the date of hearing as 21.11.2012 at 03.30 p.m.
in the chambers of the Assistant City Planner.
If the Commissioner is the competent authority to cancel or revoke a building permit accorded earlier, in accordance with Section 450 of the Act, no other agency, particularly a subordinate agency than him, can conduct a hearing.
Simply put, one officer cannot hear the objections from an affected party and another officer cannot make up his mind and pass a final order.
Even assuming that the meeting is only intended to be arranged in the chambers of the Assistant City Planner, what the petitioners have asserted in their affidavit in paragraphs 9 and 10 acquires significance.
In paragraph 9 of the affidavit filed in support of this Writ Petition, this is what the petitioners have asserted: " ......
Accordingly, we went to the chambers of AC (Planning), GHMC on 21.11.2012 at 3.30 p.m.
along with our explanation and supporting documents.
But we were informed by the staff of the AC (Planning), GHMC that the Asst.
Commissioner (Planning) was in New Delhi on official trip and there is no personal hearing on 21.11.2012 and the next date of hearing will be intimated to us in due course.
We believed them bona fide and we were waiting for the next date of hearing." In paragraph 10, it is asserted by the petitioners that the fact recorded by the Commissioner that we have not attended the hearing was erroneous.
The Chief City Planner, Greater Hyderabad Municipal Corporation has filed a detailed counter affidavit, but however, a half-hearted denial was attempted in it.
In paragraph 8, it is asserted by the Chief City Planner as under: " ....
It is submitted that the petitioner has not attended the hearing." It was further stated in paragraph 13 of the counter-affidavit as under: "...........The petitioner never attended the chambers of Additional Commissioner (Planning), Greater Hyderabad Municipal Corporation.
The petitioner has not asked for postponement of hearing and not utilized the opportunity given by Respondent No.1 i.e.
GHMC." The relevant portion of the notice dated 19.11.2012 reads as under: ".............
Accordingly, a meeting is proposed in the chambers of A.C.(Planning), GHMC on 21.11.2012 at 3.30 p.m." The abbreviations (A.C.(Planning)) used in the notice dated 19.11.2012 are quite misleading.
In normal parlance, A.C.(Planning) refers to Assistant Commissioner or Assistant City Planner, whereas the counter-affidavit, in paragraph 13, has for the first time, set out A.C.
as referable to Additional Commissioner (Planning).
There is any amount of difference between the status of an Additional Commissioner and that of an Assistant Commissioner or an Assistant City Planner.
Further, the petitioners have, in so many words, asserted that the Assistant Commissioner (Planning) was in New Delhi on an official trip and hence, no personal hearing took place on 21.11.2012 and his office staff have informed them that the next date of hearing would be intimated in due course.
Therefore, the respondents ought to have met this case set up by the petitioners specifically.
A general and vague denial mode adopted by the respondents does not take us any further, to hold that the petitioners have failed to avail the opportunity of hearing accorded to them.
Even assuming that the hearing is intended to take place at the Additional Commissioner's chambers, but not that of the Assistant Commissioner's, the fault lies squarely with the wording used in the notice dated 19.11.2012 in not properly guiding the writ petitioners as to the location where the intended hearing is to take place.
This apart, if one were to assume that the objections, if any, on the part of the petitioners would be heard by an Additional Commissioner, even then, in my opinion, the exercise would have been squarely vitiated, for, it is the Commissioner, who is the competent authority to take a decision as to whether the building permit should be cancelled or not.
I am fortified, in my opinion, by the principle enunciated in the celebrated authority of Gullapalli Nageswara Rao v.
Andhra Pradesh State Road Transport Corporation1, wherein the principle has been set out as under: ".........The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide.
This divided responsibility is destructive of the concept of judicial hearing.
Such a procedure defeats the object of personal hearing.
Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view.
If one person hears and another decides, then personal hearing becomes an empty formality.
We therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure." Learned Standing Counsel Dr.
Y.
Padmavathi, has placed reliance upon the judgment rendered by the Supreme Court in General Manager, Eastern Railway v.
Jawala Prosad Singh2, in support of her contention that objections can be heard by any other agency as a part of exercise of collection of evidence and a final decision, based upon such material, can still be taken by the competent authority and hence, the final decision need not be discredited as defective for the failure of the competent authority to hear the case himself.
The learned Standing Counsel would also submit that the dicta of the Supreme Court in Gullapalli Nageswara Rao's case (cited 1 supra) has been considered by the Supreme Court in Eastern Railway's case (cited 2 supra) and the principle has since been distinguished.
I am afraid, that the principle enunciated in Eastern Railways' case (cited 2 supra) is entirely a different one.
In that case, the respondent employee was working as a Treasury Guard in Eastern Railway.
A charge sheet was drawn against him by the Chief Cashier of the Railways alleging misappropriation of cash belonging to the government.
An inquiry committee consisting of three persons, namely Divisional Accounts Officer, Divisional Personnel Officer and the Divisional Engineer was constituted to inquire into the charges.
After proceedings of the inquiry committee had gone for sometime, one of its members was transferred to a different place and thus, a vacancy in the committee was caused, which was filled up by his successor in office.
That was objected to by the respondent employee and he pressed into service the principle enunciated by the Supreme Court in Gullapalli Nageswara Rao's case (cited 1 supra).
The Supreme Court in Eastern Railways's case (cited 2 supra) has analyzed the nature and role that will be played by an inquiry committee in matters of disciplinary proceedings drawn against civil servants.
In such cases, the inquiry officers or inquiry committees are merely fact-finding committees.
The findings drawn by them in the form of an inquiry officer's report will not bind the competent disciplinary authority.
The disciplinary authority would be at liberty to depart from any such conclusions drawn, provided the material on record justifies and lends support for any such departure to be made.
The role of the committees or inquiry officers is only a facilitator for the ultimate disciplinary authority to apply his mind to the entire material on record, whereas, in the instant case, the authority competent to revoke or cancel a building permit is the Commissioner.
Therefore, it is that authority, who is required to make up his mind after applying himself fully to the objections that might be lodged by the permit holder.
Therefore, it is he, who is required to apply himself to the objections and hence, I find that the ruling in Eastern Railways' case (cited supra) is of not much help to the cause of the respondents.
The controversy in the instant case, to a large extent, centers around the right, title and incidentally possession the petitioners have claimed over that parcel of land over which they intended to erect a building.
Dealing with the question as to the test that should be adopted relating to the possession, Vivian Bose, J speaking for the Bench in The Seksaria Cotton Mills Ltd.
v.
The State of Bombay3, has evolved the following test: " Therefore, the test of the sort of possession which they had in mind was not the control over the goods.
But that has always been regarded as one of the tests of physical or de facto possession.
Lancelot Hall distinguishing between possession in law and possession in fact says that "possession in the popular sense denotes a state of fact of exclusive physical control.
Drawing the same distinction they say that "physical possession" may be generally described by stating that "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control." Similarly, the Supreme Court had occasioned to consider a similar question in Gummalapura Taggina Matadakotturuswami v.
Setra Veeravva4 and approvingly quoted the view expressed by the Division Bench of the Andhra Pradesh High Court in Gaddam Venkayamma v.
Gaddam Veerayya5, as under: " the word 'possessed' in Section 14 refers to possession on the date when the Act came into force.
Course, possession referred to in Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female - but may be possession in law.
............
possession means the state of owning or having in one's hands or power.
It includes possession by receipt of rents and profits.
...........
In Section 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power.
That possession might have been either actual or constructive or in any form recognized by law,........." Further in Supdt.
& Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja6, Sarkaria, J speaking for the Bench would note that, "Possession" is a polymorphous term which may have different meanings in different contexts.
It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes.
Finally in Madan Lal v.
State of H.P.7 , the Supreme Court has set out as under: " As noted in Gunwantlal v.
State of M.P.
((1972) 2 SCC 194), possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
The word "possession" means the legal right to possession (see Heath v.
Drown ((1972) 2 All ER 561).
In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same.
(See Sullivan v.
Earl of Caithness ((1976) 1All ER 844)." In view of the settled principles of law enunciated by the Supreme Court noticed supra, it follows that the petitioners are entitled to demonstrate to the satisfaction of the Commissioner, Greater Hyderabad Municipal Corporation that they are in effective possession of that parcel of land over which they intended to erect constructions for which they have applied for a building permit.
At the same time, the Corporation, on its own, or at the instance of the 2nd respondent Wakf Board, is also entitled to gather such material, as would be relevant for it, to know that the permit holder is carrying on constructions strictly in accordance with the building permit or not.
If, for any reason, the petitioners or the building permit holder has overstepped the physical limits of his land and then started making constructions in any other different premises, or part thereof a legitimate objection can be raised, but however, any such objection can be relied only upon undertaking a physical inspection of the site in question in the presence of all parties concerned.
Far removed from the ground realities, no such decision can be worked out or arrived at.
Unfortunately, in the instant case, no such inspection was either undertaken by the Commissioner or called for by him.
It is quite possible that the Commissioner can order for a physical inspection of the site in question where the building is sought to be erected and ascertain as to whether the constructions that are sought to be made are in strict conformity with the approved building plan or not.
Such an inspection report, provided the same is carried out in the presence of the building permit holder, can be looked into for the purpose of making up the final opinion in the matter, but in the instant case, no such inspection report was available with the Commissioner.
Above all, the show cause notice, as was rightly pointed out by the learned Senior Counsel for the petitioners, proceeded on the premises that the petitioners have not shown the existence of two graves in the site sought to be developed now, whereas the final order reveals that the application submitted by the petitioners clearly reflects the existence of two graves in the site and a provision is made by creating a corridor for easy ingress and aggress thereto.
In spite of the same, the contents of the show cause notice were once again repeated.
Such contradictory terms contained in the final order, reflect improper grasp of the facts and a mechanical attitude to the entire issue.
Therefore, even for this reason also, the impugned order deserves to be set at naught.
However, before I part with this case, I must deal with the objection raised by Sri Mukheed that the petitioners have demolished a tomb and a compound wall lying in the neighbouring property and have also demolished the two graves lying in the site under development.
Insofar as the compound wall is concerned, it is demonstrated that the petitioners have entered into an agreement with the mosque development committee and thereafter, demolished the old dilapidated compound wall and constructed a cement concrete wall in its place at their own expense.
After all, if this is permitted by the mosque development committee, the petitioners are not to be blamed completely.
So long as the compound wall has been reconstructed exactly at the same place where the old compound wall was standing, perhaps, the 2nd respondent cannot make a serious or substantial objection about the same.
The mosque property now will have a reinforced cement concrete wall instead of a dilapidated compound wall, but however, the contention with regard to the demolition of tombs is concerned, it is the assertion of the petitioners that they have not touched any of the existing structures or buildings lying in the adjoining compound known as Maszid-e-Mumtaz Mansion or the tombs lying there.
Any such question can easily be resolved upon inspection of the site by all concerned in the presence of the petitioners and the 2nd respondent herein.
If the petitioners are really guilty of any such improper conduct on their part, they are liable to be appropriately dealt with, but if the petitioners have not touched the tombs existing in the neighbouring premises, they cannot be penalized by cancellation of their building permit at all.
That leaves us to deal with the last contention of Sri Mukheed that even the graves lying in the site in question have also been demolished, which allegation has been stoutly disputed by the petitioners.
The writ petitioners assert that the graves are very well preserved and they also attach great significance to them, inasmuch as those graves relate to their own parents and far from demolishing them, they are now taking steps to preserve them carefully by providing a corridor.
This is a pure question of fact.
It can be ascertained one way or the other upon inspection of the site in question.
Further, as to whether the petitioners have encroached upon a wakf property or not can be decided only upon a physical inspection report.
For resolving such a dispute, one does not really need to invoke the jurisdiction of the Wakf Tribunal.
Therefore, for all the aforesaid reasons, I am convinced that the impugned order is passed in violation of the principles of natural justice and hence, it deserves to be set aside.
Accordingly, the impugned order is set aside.
However, liberty is granted to the Commissioner, Greater Hyderabad Municipal Corporation to offer a hearing to the petitioners on the one hand and the 2nd respondent Wakf Board on the other and also call for a report of the inspection to be carried out in the presence of the petitioners and the 2nd respondent of the site in question and then alone, take an appropriate decision and communicate the same to the petitioners.
Until such exercise is completed, the petitioners shall not be prevented from carrying on constructions, strictly in accordance with the building permit granted to them on 01.05.2012.
With this, the Writ Petition stands allowed.
No costs.
Consequently, the miscellaneous applications, if any shall stand disposed of.
-------------------------- (NOOTY RAMAMOHANA RAO, J)