Dismissed

Killadi Vera Naga Prasad Rao v. The Tadepalligudem Municipality, Rep by its Commissioner

Telangana HC31 Aug 2012WP/29623/2010

Case brief

AI extract

What is this about?

The Hon'ble Court dismissed a writ petition filed as a Public Interest Litigation by a former Councillor challenging the sale of municipal lands. The court held the petition was a substitute for a delayed private litigation filed for interest, lacking genuine public injury or disclosure of material facts.

What did the court decide?

The writ petition was dismissed with costs of Rs. 25,000/-.

Killadi Vera Naga Prasad Rao Vs The… — Public Procurement and Tenders | Telangana HC (2012)

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*** HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE**

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THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR

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+ WRIT PETITION No.29623 OF 2010

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% 31^ST August, 2012

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BETWEEN:

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# KILLADI VERA NAGA PRASAD RAO .. PETITIONER

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VS.

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$ THE TADEPALLIGUDEM MUNICIPALITY REP. BY ITS COMMISSIONER, TADEPALLIGUDEM, W.G.DISTRICT AND OTHERS .. Respondents

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! Counsel for the petitioner : SRI. K.SARVABHOMA RAO

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^ Counsel for the respondents :

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GOVT. PLEADER FOR

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MUNICIPALITIES FOR RR 1 TO 3

< Gist:

> Head Note:

? CITATIONS: (2005) 3 SCC 91 (2005) 1 SCC 590

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT PETITION NO.29623 OF 2010

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Dt: 31-08-2012.

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Between:

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KILLADI VERA NAGA PRASAD RAO .. PETITIONER

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AND

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THE TADEPALLIGUDEM MUNICIPALITY REP. BY ITS COMMISSIONER, TADEPALLIGUDEM, W.G.DISTRICT AND OTHERS .. RESPONDENTS

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT PETITION NO.29623 OF 2010

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ORDER: (Per THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE)

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This writ petition has been filed under the Public Interest Jurisdiction to issue a Writ of Mandamus declaring the sale of site earmarked for parks, in the approved lay-outs in Tadepalligudem Municipal area in favour of respondents 4 to 7 as illegal, arbitrary, without jurisdiction, unjust, fraudulent, collusive and that the order obtained by the said respondents 4 to 7 in W.P.No.12191 of 2001, dated 14.9.2006 was obtained by playing fraud on the court and by suppression of material facts and by misleading the court with respect to the legal provisions and the proceedings of cancellation by the 2^nd respondent and to consequently cancel the sales said to have been effected by the respondent-municipality in favour of respondents 4 to 7 in public auction dated 22.1.1999 in pursuance of the tender cum auction notice in Roc.No.3828/96-G1, dated Nil.1.1999.

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Heard learned counsel appearing for the parties at length.

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The facts as pleaded in the writ petition by the writ petitioner are to note as follows:

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The petitioner was an elected Councillor of Tadepalligudem Municipality for the 8^th ward for the tenure 2005-2010. It is further stated that altogether for about 15 years he represented the residents of Tadepalligudem in the

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Municipal Council. It is the case of the writ petitioner that the open lands earmarked for public utilities are being sold by the said Municipal authorities without any due process of law and without any authority in law. It is further stated that greedy land grabbers managed the officials to have an auction of open lands earmarked for parks and other public utilities without leaving a single one and managed to purchase the sites in question at a thrown away price during the year 1999. It is not in dispute that steps were taken for issuing tender cum auction notice in the year 1999. Admittedly, it appears that the petitioner was a Councillor when Resolution No.24 was passed on 3004-2001 by the Municipal authorities. It is specifically stated in the said resolution to confirm the earlier decisions taken by the respondents who have declared 9 plots as vacant sites, a decision was taken to auction the said sites in the open auction on the pretext that the said sites were not useful for public use and hence were put to sale through a tender cum auction as per the guidelines issued by the Government in G.O.Ms.No.419 M.A, dated 1308-1996. Subsequently, G.O.Ms.No.557 MA, dated 30-11-2000 was issued, whereby an amendment was brought, which reads as follows:

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“ In the said G.O. for the first time in para 7, the following shall be substituted:

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‘ If there are any lands other than open spaces, in approved layouts which are not required by the municipality for any of the above purposes the same can be put to public auction through Tender cum Auction procedure, so that the Municipalities can derive income.’”

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It further appears that on 20-02-2002, G.O.Ms.No.72 MA, was issued by the Government stating that the State shall not propose to utilize the reserved open spaces of a layout for the purpose other than the intended original use such as park, play ground, community structure, urban forestry and similar eco-conservation programmes. It was specifically stated that alienation proposals in respect of municipal vacant lands, if any, available which are other than the reserved open spaces can be proposed for remunerative purposes like shopping/office complexes etc. It further appears that all these facts were duly noted in the order passed by the Hon’ble single Judge in W.P.No.26276 of 1996. It is not in dispute that even the matters were placed

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before the court and the court recorded in the judgment as follows:

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“ 4. In the counter affidavit filed by 2^nd and 3^rd respondents, it was stated that the public auction for disposal of open sites which are not useful for public use were put to sale through Tender cum Auction as per the guidelines issued by the Government through G.O.Ms.No.419, M.A. & U.D (JI) Department, dated 13.08.1996. As per this G.O. income derived from the sale of unused open sites, shall be utilized for improvement of drinking water supply, parks and playgrounds…..”

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It further appears that in the said writ petition the 1^st respondent was directed to take a decision at the earliest point of time and the respondents 2 and 3 are were directed to execute necessary documents in favour of the petitioners therein in respect of the sites purchased by them in public auction held on 22.1.1999 in pursuance of Resolution No.24 dated 30-04-2001. The said order was also confirmed by the Hon’ble Division Bench on 28-10-2009, wherein the Division Bench found that the applicant failed to offer proper explanation to condone the inordinate delay of 907 days in filing the appeal and as a sequel WASR.No.39866 of 2009 was also dismissed. Therefore, it appears that the order reached its finality in the year 2009 itself. In fact, prior to that it takes away the right to file an appeal, since no appeal was filed by the aggrieved party within the period of limitation. No steps were taken by either party at that point of time including the petitioner. The writ petitioner has filed this writ petition under Public Interest jurisdiction on 25-11-2010 and tries to take a chance to declare the order passed in the said writ petition at naught by alleging that the said order was passed by the court at the instance of the parties who played in the matter fraudulently and by suppression of material facts and by misleading the court.

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It appears to us that after taking into account even the counter affidavit as well as the reply filed before us the writ petitioner made bald allegations without any scrap of paper to substantiate those before us and further filed a reply which would show that the writ petitioner should have known all these facts which have been stated before the writ court.

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We have minutely gone through the writ affidavit as well as the reply of the writ petitioner.

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It appears that the writ petitioner has specifically admitted that he was a Member of the Municipal Council when the said matter was confirmed by the Municipal authorities in the year 2001, which cannot be disputed, at this stage, by him. Apparently, he did not take any steps since 2001. It further appears that since 2001 till date he is already and still in continuation of the office of such Council performing his duties as a Councillor, but suppressed that information from Court. The reasons which are not known to the court just turned around in the year 2010, since it appears to us that the ensuing elections may be the probable ground for him to knock the doors of this Court in this projected interest litigation by filing this litigation before us and to gain thereby by filing such writ petition to make an order at naught and also gain. In terms of the order passed by the Supreme Court noted below the writ petition deserves to be dismissed. In R & M TRUST v. KORAMANGALA RESIDENTS VIGILANCE GROUP^[1] , wherein the following passage from the earlier judgment in DATTARAJ NATHUJI THAWARE v. STATE OF MAHARASHTRA^[2] is extracted. Relevant paras 25 and 26 are extracted hereunder:

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“ 25. In this connection reference may be made to a recent decision given by this Court in the case of DATTARAJ NATHUJI THAWARE v. STATE OF MAHARASHTRA in which Hon’ble Pasayat, J has also observed as follows:

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‘12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicityoriented or founded on personal vendetta.’

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26. We fully share the views expressed in the aforesaid decision of this Court and reiterate that it should go as a warning to the courts that this extraordinary power should be used sparingly and absolutely in necessary matters involving

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downtrodden people.”

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It would appear to us that this litigation comes within the purview of projected interest litigation instead of Public Interest litigation. This writ petition should be thrown out of this Court as it is nothing but a chance litigation, as a projected interest litigation and further to set at naught the said order by making inordinate delay in filing this writ petition.

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On the above analysis, this writ petition is dismissed with costs of Rs.50,000/- to be paid to the A.P.State Legal Services Authority, Hyderabad, which can be utilized for the down trodden people to give a little bit of relief.

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Later, learned counsel appearing for the writ petitioner prayed before this Court to reduce the costs to Rs.25,000/-. After hearing the prayer, with a caution to the writ petitioner, we reduce the costs from Rs.50,000/- to Rs.25,000/- (Rupees twenty five thousand only) to be paid within a period of two weeks from date.

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Post the writ petition for compliance after three weeks.

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( PINAKI CHANDRA GHOSE, ACJ )

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Dt: 31-08-2012.

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( VILAS V.AFZULPURKAR, J )

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TNB

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[1] (2005) 3 SCC 91