Smt. A.Meena Kumari v. Municipal Corporation of Hyderabad

Between: Smt.A.Meena Kumari, W/o.A.Yadagiri, R/o.1-3-1/A/3/ABC, Plot No.12, Padmashali Colony, Kavadiguda, Hyderabad. ..... PET IT IONER AND 1 Sri Sanjay Jaju, I.A.S., Commissioner of Municipal Corporation of Hyderabad, Circle, III, Hyderabad. 2 Sri Rajesham, Dy.Commissioner of Municipal Corporation of Hyderabad, Circle, III, Abids, Hyderabad. 3 Sri Bikshapati, Asst.City Planner, Municipal Corporation of Hyderabad, Circle, III, Abids, Hyderabad. 4 Principal Secretary, Govt.of A.P., Municipal Administration And Urban Development Dept., Secretariat, Hyderabad. 5 The District collector, Hyderabad, Hyderabad District. ( RR 4 & 5 not necessary parties to this application ) .....RESPONDENT (S) Counsel for the Petitioner:MR.M.NARENDER REDDY Counsel for the Respondents.: MR.RAMA RAO GHANT A T he Court made t he following : THE HONOURABLE SRI JUSTICE A.GOPAL REDDY WP No.8714/2002 and CC No.1349/2006 Common Order: The petitioner, by means of this writ petition, seeks a writ of Mandamus for setting aside G.O.Rt.No.213, Municipal Administration Urban Development (MI) Department dt. 22-2-2002 issued by the fourth respondent, Government of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration and Urban Development Department, Hyderabad, and consequential letter No. No.1134/TPS/C-3/MCH/2002 dt. 26-4-2002 issued by respondent, Assistant City Planner, Municipal Corporation of Hyderabad, Circle III, Kavadiguda, Hyderabad and for a direction to the respondents to register the sale deed pursuant to G.O.Rt.No.828, Municipal Administration & Urban Development (MI) Department dt. 26-7-1994. Pending writ petition, this court stayed eviction of the petitioner pursuant to the letter dt.26-4-2002 on 27-4-2002 in WPMP No.10822/2002. In which, the Municipal Corporation of Hyderabad filed vacate stay petition in WVMP No.2574/2002. Meanwhile, the petitioner filed WPMP No.24454/2002 production of resolution No.82 dt.24-3-1995 and resolution N o. 193 dt. 24-3-1995 along with the letter of the District Collector, Hyderabad dt. 6-10-1994 and approved lay out of Padmasali Co-operative Housing Society. This court by common order dt. 9-10-2002 passed in WPMP No.24454/2002 and WVMP No.2574/2002 made the interim stay absolute observing that G.O.Rt. No.213 dt. 22-2-2002 canceling earlier orders issued in G.O.Rt.No.828 Municipal Administration dt. 26-7-1994 appears to have been passed without issuing any notice to the petitioner, which is in utter violation of principles of natural justice and rights accrued through G.O.Rt. No.828 dt. 26-7-1994 to the petitioner cannot be taken away without such notice. For violation of the orders passed by this court dt 9-10-2002, the present contempt case has been filed stating that in spite of making stay absolute the municipal authorities are trying to remove the structures on the garb of encroachment. The petitioner is the owner of Plot No.12 in the approved lay out of Padmasali Co-operative Housing Society, II Venture, Bolakpur, Bakaram, Hyderabad, where she constructed a residential house. She submitted a representation on 20-4-1994 seeking allotment of adjacent open space to an extent of 250 sq.yards stating that open space of 250 sq.yards which is lying vacant situated by the side of Nala, which was ear-marked for park, has not been developed by the Municipal Corporation of Hyderabad. On the said representation, the Government through G.O.Rt. No.828 dt. 26-7-1994 allotted an area of 250 sq.yards to the petitioner subject to payment of land value to the Municipal Corporation of Hyderabad as fixed by the District Collector, Hyderabad. Pursuant to the said orders, the petitioner was directed to pay an amount of Rs.3,00,000/- towards the land value at Rs.1200/- per sq.yard within 7 days from the date receipt of letter dt. 5-5-1995. In pursuance of the letter dt. 5-5-1995 the petitioner deposited Rs.3 lakhs to the credit of MCH Account through challan No.799 dt. 6-5-1995 together with stamp papers worth Rs.24,000/- for registration of the document in her favour. Since the document was not registered in her favour, the petitioner filed WP No.18655/1998 for completion of the allotment/sale proceedings in her favour. The said writ petition was disposed of on 14-7-2000 holding as under: “Admittedly, the land in question belongs to the Municipal Corporation of Hyderabad. Even without considering the objections raised by the Corporation, it seems the Government wants to alienate the same in favour of the petitioner on payment of some amount. Apart from that, the land in question is an open space left over under the Lay Out Rules which can be utilized for public purpose. I direct In view of the above facts and circumstances, I am not inclined to grant any relief to the petitioner. However, the Principal Secretary, Municipal Administration Department, Government of Andhra Pradesh to reconsider the entire issue by taking into consideration the objections raised by the Municipal Corporation of Hyderabad in public interest and pass appropriate orders. On disposal of the above writ petition, the Government through G.O.Rt.No.213 dt. 22-2-2002 cancelled the earlier allotment made through G.O.Rt..No.828 dt. 26-7-1994. Questioning the same, the above writ petition came to be filed. In the counter-affidavit filed by the fourth respondent, it is no-where stated that before canceling G.O. Rt. No.828 dt. 26-7- 1994 any notice was issued to the petitioner. Respondents 1 to 3 filed a counter-affidavit while denying handing over of site to the petitioner pursuant to G.O.Rt.No.828 dt. 26-7-1994 stated that the petitioner unauthorizedly occupied and leased out the site to Toddy Tappers Cooperative Society by collecting huge rents. Even no permission has been obtained for erecting sheds in the site as required under the Municipal Corporation of Hyderabad Act. The respondents admitted issuance of proceeding dt. 5-5-1995 directing the petitioner to pay the market value within seven days from the date of receipt of the letter pursuant to G.O.Rt. No.828 dt. 26-7-1994. Since complaints were received from the people of the locality, a proposal to sell the plot in question was kept in abeyance. At that stage, WP No.18655/1998 was filed and the order passed in the said petition has become final. Sri M.Narender Reddy, learned counsel appearing for the petitioner strenuously contends that the impugned G.O.Rt.No.213 dt. 22-2-2002 has been issued in utter violation of principles of natural justice, which fact has not been denied by the respondents. In view of the same, since the petitioner already deposited the entire amount as directed by the respondents pursuant to G.O.Rt.No.828 dt. 26-7-1994, the Government is estopped from canceling the same, therefore, the respondents should be directed to register the plot in favour of the petitioner in obedience to the directions issued in G.O.Rt.No.828 dt. 26-7- 1994 and consequential letter dt. 26-4-2002. On the other hand, learned Government Pleader for Municipal Administration fairly conceded that no notice was issued before canceling G.O.Rt.No.828 through G.O.Rt.No.213 dt. 22-2-2002 by the Government. The main contention of the petitioner is that the impugned order has been passed in utter violation of principles of natural justice since right is accrued to the petitioner as land was allotted in her favour subject to payment of market value, which was admittedly deposited by the petitioner to the credit of MCH account. Indisputably, the petitioner’s request for execution of the sale deed by completing allotment process was negatived by this court in WP No.18655/98, whereunder this court categorically held that without considering the objections raised by the Municipal Corporation of Hyderabad, the Government wants to alienate the land, admittedly belongs to the Municipal Corporation of Hyderabad, on payment of some amount and the land is an open space left over under the Lay Out Rules which can be utilized for public purpose, therefore the Government was directed to re-consider the entire issue after taking consideration the objections raised by the Municipal Corporation of Hyderabad in public interest and to pass appropriate orders. The said order has become final. In view of the same, direction sought for by the petitioner for execution of the sale deed in her favour after setting aside the impugned G.O.Rt.213 dt. 22-2-2002 merits no consideration. Since it is admitted that impugned G.O.Rt. No.213 dt. 22-2-2002 was issued in violation of principles of natural justice and also in violation of directions issued in WP No.18655/1998, G.O.Rt.No.213 dt.22-2-2002 is set-aside directing the fourth respondent to decide the matter afresh after giving notice to the petitioner as well as the Municipal Corporation of Hyderabad and after calling objections from the people of the locality, since every citizen will have a right over the open space left over under the Lay Out Rules, to sub-serve the public interest, and pass appropriate orders. The said exercise shall be completed within three months from the date of receipt of a copy of the order. With the above directions, the writ petition is disposed of. No costs. The petitioner failed to establish lawful possession over the plot in question. Admittedly, on Government issuing G.O.Rt. No.828 dt. 26-7-1994 no sale deed was executed nor property was delivered to her. In view of the same, the petitioner cannot claim that she is in lawful possession of the property and to protect her possession. This court while making stay absolute directed the respondents to proceed with according to law by removing the unauthorized constructions, if the petitioner made in the open space without obtaining any permission from the Corporation. Therefore, the authorities can always remove the unauthorized constructions, if any made without obtaining any permission. No willful disobedience to the orders has been pointed out in the contempt case by the petitioner. The Contempt Case is accordingly dismissed. The notice of contempt against the respondents is discharged. _______________ A.GOPAL REDDY,J Dt.7-11-2008 Kmr