Telangana High CourtAmmula Kamala Deepti vs The State Of Telangana And 4 Others on 23 December, 2020Author:A.Abhishek ReddyBench:A.Abhishek ReddyTHE HON'BLE SRI JUSTICE A.ABHISHEK REDDY\n\n                  WRIT PETITION No.12067 of 2020\nORDER:This writ petition is filed challenging the action of respondent\n\nNos.2 to 4 in issuing fresh sanction vide File No.2/C16/06419/2020\n\npermit No.2/C16/06659/2020, dated 25.06.2020, for construction of\n\nfifth floor on the existing structure, which was constructed as per the\n\nsanctioned plan vide permit dated 28.06.2017, in favour of respondent\n\nNo.5, in the premises bearing H.No.3-6-379/1, Kashish Avenue, Street\n\nNo.2, Himayath Nagar, Hyderabad.Heard the learned counsel for the petitioner, the learned\n\nGovernment     Pleader   for   Municipal    Administration   and    Urban\n\nDevelopment for respondent No.1, the learned Standing Counsel for\n\nGHMC for respondent Nos.2 to 4, and Sri L. Ravi Chander, learned\n\nSenior Counsel appearing on behalf of Sri Deepak Misra, learned\n\ncounsel for respondent No.5. With their consent, the Writ Petition is\n\ndisposed of at the stage of admission itself.The case of the petitioner, in brief, is that the petitioner and her\n\nbrother, who is presently residing in USA, have purchased a flat bearing\n\nNo.201 in the subject apartment under a registered sale deed.         It is\n\nstated that the builder and the owner of the land entered into a\n\nregistered Development Agreement-cum-Irrevocable General Power of\n\nAttorney, dated 16.03.2017, for development of the subject property\n\nand that based on the said Development Agreement, the builder has\n\nobtained building permit dated 28.06.2017 for construction of stilt plus\n\nfour upper floors. The grievance of the petitioner is that respondent\n\nNo.5, after the sale of the flats, has again made an application seeking\n\nfresh permission for construction of fifth floor on the existing structure,2and the same was granted to him vide the impugned building permit\n\ndated 25.06.2020.Learned counsel for the petitioner has vehemently argued that the\n\nbuilding permission issued to respondent No.5 is without any basis and\n\ncontrary to the provisions of theTelangana Apartments (Promotion of\n\nConstruction and Ownership) Act, 1987(for short, 'the Act') and that as\n\nperSection 9of the Act, the respondent No.5 is not entitled to seek any\n\nfresh permission or make any constructions once the flats are sold. The\n\nlearned counsel has stated that even the Transferable Development\n\nRight (TDR) Certificate, based on which respondent No.5 has obtained\n\npermission, is without any basis and contrary to the Scheme of\n\nissuance of the TDR Certificate. Learned counsel states that once\n\nrespondent No.5 has sold the flats in the subject apartment, he does\n\nnot have any exclusive right to deal with the said property again and\n\ncannot make any further constructions without obtaining the signature\n\nof the flat owners. The learned counsel has relied on the judgment of\n\nthis Court inCSR Estates, Flat Owners Welfare Association v.\n\nHyderabad Urban Development Authority1to buttress his contention\n\nthat once the flats are sold to third parties, the developer/owner of an\n\napartment building cannot make any further constructions or raise\n\nadditional           floors   without   obtaining   permission   or   No   Objection\n\nCertificate from the flat owners.Per contra, Sri L. Ravi Chander, learned Senior Counsel\n\nappearing on behalf of Sri Deepak Misra, learned counsel for\n\nrespondent No.5, has stated that the petitioner was well aware about\n\nthe construction of fifth floor that is sought to be made by respondent\n\nNo.5 and the same is evident from the sale deed dated 19.02.2020\n\n\n\n\n1   AIR 1999 AP 613executed in her favour.    The learned Senior Counsel has taken this\n\nCourt through the recitals in the sale deed, which reads as under:"Later on the Developer have applied for Sanction Plan\n      for construction of a Residential Building comprising Stilt Floor\n      + 5 Upper Floors from the Greater Hyderabad Municipal\n      Corporation   vide   Inward   No.2/C20/05854/2017,        Dated\n      28.06.2017 and constructed the said Building and named it\n      as "KASHISH AVENUE", the Entire Floor bearing Flat No.201\n      on Second Floor has fallen to the share of the Developer\n      herein."The learned Senior Counsel has taken this Court through the 'No\n\nObjection cum Declaration' given by the petitioner herself, wherein she\n\nhas given consent for construction of the fifth floor, and has stated that\n\nfor the reasons best known to her, the petitioner has changed her mind\n\nand has started creating hurdles. The learned Senior Counsel states\n\nthat the petitioner was well aware about the intention of respondent\n\nNo.5 with regard to construction of the fifth floor and pursuant to the\n\nsame, the respondent Nol.5 has applied for building permission and\n\nthen only the permission has been granted. The learned Senior Counsel\n\nhas distinguished the judgment relied on by the petitioner on the\n\nground that the same was rendered prior to the issuance of\n\nG.O.Ms.No.168, Municipal Administration and Urban Development (M)\n\nDepartment, dated 07.04.2012, whereby the Government has come up\n\nwith the Scheme of giving Transferable Development Rights (TDR) to the\n\npersons, who have surrendered the land without any compensation.\n\nLearned Senior Counsel states that the petitioner, fully knowing well\n\nabout the contents of the sale deed, cannot now turn back and state\n\nthat she is not aware of the contents and she was made to sign the\n\ndocument at the last moment is only an afterthought. Learned Senior\n\nCounsel has stated that irrespective of the fact as to whether the\n\nexecutant of the document has read the document or not, once the4executant has signed the document, the same terms and conditions in\n\nthe said document are binding on him, more so, when it is a registered\n\nsale deed.   That in the present case, the registered sale deed has been\n\nexecuted in the month of February, 2020. The learned Senior Counsel\n\nhas, therefore, prayed to dismiss the writ petition.Heard the learned counsel for the petitioner as well as the learned\n\ncounsel for the respondents and perused the record.A perusal of the record discloses that one Smt. B.Narasamma has\n\nsurrendered her land for the purpose of road widening and the GHMC\n\nauthorities have issued Development Right Certificate to her on\n\n05.03.2020 permitting her to utilise the Transferable Development\n\nRight (TDR) Value of 1692 Square Yards of area either on the said site\n\nor elsewhere and the said Narasamma, in turn, has transferred the TDR\n\nto the owners of the subject premises namely Smt.P. Sai Kumari and\n\nSmt.P. Kavitha facilitating them to obtain sanction for construction of\n\nfifth floor. The official respondents, upon verification of the said TDR\n\nCertificate and in pursuance of Rule 17 of the Rules issued in\n\nG.O.Ms.No.168,     date    07.04.2012,     have    granted     permission     to\n\nrespondent No.5 for constructing fifth floor in the subject premises.Rule 17 of the Rules issued in G.O.Ms.No.168, date 07.04.2012\n\nreads as under:"17. Grant of Transferable Development Right:(a)    Transferable Development Right (TDR) can be awarded only\n             when such lands are transferred to the local body/ Urban\n             Development Authority as the case may be by way of\n             registered gift deed. The award would be in the form of a\n             TDR certificate issued by the Competent Authority / Sanction\n             Authority.(b)    Grant of TDR can be considered by the Competent Authority\n             / Sanctioning Authority for the following areas subject to the\n             owners complying with the conditions of development above,\n             as per the following norms:5(i)     For the Master Plan Road / Road Development\n              Plan undertaken and developed: equivalent to\n              200% of the built up area of such areas surrendered.For conservation and development of lakes/water\n              bodies/nalas foreshores & Recreational buffer\n              development with greenery, etc: equivalent to\n              100% of the built up are of such recreational buffer\n              area developed at his cost.(ii)    For Heritage buildings and heritage precincts\n              maintained with adaptive reuse: equivalent to\n              100% of built up area of such site area.(c)   The TDR may be arrived at on the basis of relative land value\n      and equivalent amount in both export and Import areas, as\n      per the Registration Department records.               The Competent\n      Authority shall have the discretion in the matter of\n      applicability of TDR.      The TDR shall not be allowed in\n      unauthorised buildings/structures/constructions and shall\n      be considered only after the land is vested with the local\n      authority / UDA. The TDR certificate issued would be valid\n      or utilised / disposed only with the concerned local body\n      area and as per the guidelines and conditions prescribed.(d)   GUIDELINES ON TRANSFERABLE DEVELOPMENT RIGHT:In order to adopt uniform guidelines throughout the State the\n      following conditions and guidelines are prescribed:(i)     As and when the owner of the building intends to\n              construct the building in the remaining area of the site,\n              he is entitled to construct the building as per the\n              provisions of these Building Rules.            In the event the\n              owner doesn't take up any construction, the owner is\n              entitled   for   TDR       which   can    be    used/disposed\n              depending on the convenience.(ii)    A composite Register shall be maintained by the\n              Sanctioning Authority as per the proforma enclosed at\n              Annexure - VIII on the award of TDR and its\n              sale/disposal and utilisation.           A responsible officer\n              shall be the custodian of the Register.(iii)   At the time of sale/disposal/utilisation of a particular\n              TDR, the utilisation details of the sale/disposal need to\n              be entered at relevant columns in the register and that\n              therefore the relevant file need to be referred to the\n              custodian of the Register for making necessary entries6in the register.   The custodian is held responsible to\n                   enter relevant details in the register and also to enter\n                   utilisation details in the TDR. When TDR Certificate is\n                   sold/utilised totally, the same shall be surrendered by\n                   the owners and the custodian shall take possession of\n                   the Certificate and make necessary entries in the\n                   register. As per Government Orders, TDR award is to\n                   be arrived on the basis of relevant land value at both\n                   export and import areas as per prevailing registration\n                   value.(iv)   TDR can either be sold or can be utilised by the same\n                   owner depending on convenience.(v)    TDR can be allowed to be utilised for construction of\n                   one additional floor over the normal permissible floors\n                   without   insisting       additional   setbacks   subject   to\n                   compliance of other norms.(vi)   Every TDR sold or disposed shall be accompanied by a\n                   prescribed agreement on Rs.100/- non-judiciary stamp\n                   paper between the person disposing the TDR and the\n                   person who intend to utilise the TDR. Draft agreement\n                   as per Annexure-XI."The proposition of law put forth by the petitioner is no doubt true,\n\nbut, depending upon the facts of the case, the same has to be applied.\n\nThe settled proposition of law is that once the developer or the\n\ncontractor or the owner of an apartment building sells the flats to third\n\npersons, he cannot alter or change or add any further floors or portions\n\nwithout the permission or No Objection Certificate from the other\n\nowners of the flats in that building. However, in the instant case, the\n\npetitioner was well aware at the time of execution of the sale deed itself\n\nthat the developer/owner was intending to construct fifth floor and that\n\nthe petitioner has also given "No Objection cum Declaration" to that\n\neffect. The petitioner, for the reasons best known to her, has come up\n\nwith the present writ petition seeking to cancel the permission granted\n\nto respondent No.5 for construction of fifth floor.7Even though the learned counsel for the petitioner has argued\n\nthat his client had to sign the said document at the last moment and\n\ntherefore she did not have time to read the document before registration\n\nof the document, the above contention cannot be countenanced, and\n\nhas to be brushed aside as it is a settled proposition of law that once\n\nthe executant of a document has appended his/her signature on the\n\ndocument, he/she cannot wriggle out of the contents therein on the\n\npretext that he/she has not read the documents before signing on the\n\nsame. The petitioner is bound by the contents of the document. The\n\nonly remedy available to the petitioner is to approach the Civil Court\n\nseeking a declaration that the said clause is not binding on her.Another important point is that the schedule of the property of\n\nflat sold to the petitioner, appended to the registered sale deed, shows\n\nthat the undivided share of land in the premises which has fallen to the\n\nshare of the petitioner is 73.4 Sq. Yards which translates to 1/5th only,\n\nwhich clearly implies that the building will have five floors. Moreover, it\n\nis to be noted that except the petitioner, none of the other flat owners\n\napproached this High Court, which clearly shows that they have also\n\ngiven their consent for construction of fifth floor.     Once all the flat\n\nowners   including   the   petitioner   have   given   their   consent   for\n\nconstruction of fifth floor, the respondent Corporation has granted the\n\npermission vide the impugned permission dated 25.06.2020, it cannot\n\nbe said that the permission so granted is without any basis and\n\ncontrary toSection 9of the Act and the Scheme of TDR issued in\n\nG.O.Ms.No.168 dated 07.04.2012.This Court does not find any merit in the present writ petition for\n\nthe afore-mentioned facts and circumstances and the same is dismissed\n\naccordingly.8The miscellaneous petitions pending, if any, shall stand closed.\n\nThere shall be no order as to costs._________________________\n                                               A.ABHISHEK REDDY, J\nDate: 23.12.2020.Note : Issue C.C. in two days.B/o\n                      va