Partly allowed

Smt.Puvvada Suseelamma,Prakasam Dist,and 5 v. Ongole MUN,COMM,ONGOLE,AND2

Telangana HC24 Apr 2012WP/8807/2012

Case brief

AI extract

What is this about?

Petitioners challenged orders of Special Court and Tribunal regarding land grabbing claims under A.P. Land Grabbing Act. Court held writ jurisdiction limited to decision-making process errors, not factual findings on land grabs. However, construction of a school on land set apart for public amenities violated town planning scheme and maintenance rules.

What did the court decide?

Writ Petition dismissed as devoid of merits regarding land grab; elementary school construction declared illegal and ordered to be demolished.

Smt.Puvvada Suseelamma,Prakasam Dist,and 5… — Public Procurement and Tenders | Telangana HC (2012)

¶1

*** THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY**

¶2

+ WRIT PETITION No.8807 OF 2012

¶3

% 24-4-2012 # Smt.Puvvada Suseelamma and others. … Petitioner Vs. $ The Ongole Municipality, rep. by its Commissioner, Ongole, Prakasam district and others. … Respondents ! Counsel for the Petitioner: Sri M.N.NARASIMHA REDDY Counsel for the Respondents: Ms.SHANTHI NEELAM < Gist: > Head Note:

¶4

? Cases referred: 1. (2003) 10 Supreme Court Cases 121 2. (2003) 6 SCC 675 3. (1976) 2 SCC 868 : AIR 1976 SC 232 4. 2006 (3) ALD 242

¶5

THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

¶6

WRIT PETITION No.8807 OF 2012

¶7

ORDER: (per Hon’ble Sri Justice G.Krishna Mohan Reddy)

¶8

This Writ Petition is directed against Judgment and Decree passed in LGA No.34 of 1999 on the file of Special Court under A.P. Land Grabbing (Prohibition) Act, 1982, (for short ‘the Act’) Hyderabad, confirming common Judgment and Decree passed in O.P.No.412 of 1992 and O.S.No.183 of 1992 on the file of Special Tribunal (District Court), Ongole under the Act, dated 30.11.1998.

¶9

The petitioners herein are also the petitioners in the OP and defendants 1 to 6 in the suit and appellants in the LGA. For the sake of convenience, we refer them as arrayed in the OP/Writ Petition.

¶10

The petitioners filed the OP under Section 7-A(1) of the Act for awarding compensation against the 1^st respondent of not less than the amount equivalent to the market value of the petition schedule property i.e., vacant house site in T.S.Nos.18 and 20/1, Ward No.3, Block No.1, Municipal Ward No.12-A with assessment No.412-B and plot Nos.10 and 11 at Islampet, Ongole and also to direct the 1^st respondent to pay profits accrued therefrom including profits to be awarded on the ground of wrongful possession of the schedule property and in addition to that order re-delivery of the property with a direction to the 1^st respondent to pay the corresponding costs.

¶11

Muslim Minority Development Service Society, represented by Pattan Masthan Khan filed the suit for permanent injunction against the petitioners 1 to 6 to prevent the petitioners from causing

¶12

any obstruction to the first respondent in constructing a municipal elementary school in the schedule property.

¶13

The case of the petitioners briefly is as follows. The petitioners 2 to 6 are brothers and sons of petitioner No.1. The petition schedule property is their exclusive/ancestral property. Originally, the petitioners got converted their land into house plots by obtaining necessary permission and sold their plots except plot Nos.10 and 11, i.e., the schedule property which they retained out of the corresponding lay out. As the first respondent tried to interfere with their possession and enjoyment of the scheduled property, they also filed O.S.No.385 of 1984 on the file of the Court of District Munsif, Ongole and obtained permanent injunction against the first respondent. Further, they came to know that the first respondent entrusted the work of constructing school building in the scheduled property without any manner of rights, by reason of which they filed the O.P.

¶14

The first and third respondents filed counters and resisted the claim of the petitioners. Their claim is that the petition schedule property is part and parcel of the land covered by the proceedings vide L.P.No.183/63, which was approved by the Director of Town and Country Planning as per Lay Out rules. The petitioners had to leave 1/10^th of site out of the lay out for public purpose i.e., laying roads and parks etc. In fact, the petitioners left the schedule property for the said public purpose in the lay out following which only the lay out was approved. Thereafter, the first respondent took possession of the schedule property in 1963 itself and then got constructed a compound wall around it. The first respondent admits that a municipal school is being under construction in the schedule property. It is also not in dispute that the construction work was entrusted to the third respondent. So the respondents claim that the

¶15

petitioners are intending to grab the property under the guise of the Land Grabbing Act, which has no application. The 3^rd respondent filed counter, according to him he is not a necessary party to the proceedings.

¶16

In the suit, similar pleas were taken by the parties respectively.

¶17

After adducing necessary oral and documentary evidence, the Tribunal considered various questions relating to the title of the property, land value and question of res judicata in view of judgments and decrees passed in OS No.555 of 1982 and OS No.385 of 1984 on the file of Principal District Munsif, Ongole, dated 10.04.1989 and 29.06.1990 respectively. After examining the matter, the Tribunal dismissed the claim of the petitioners and upheld the claim of the respondents 1 and 2 which was confirmed by the Special Court in the appeal.

¶18

Learned Counsel for the petitioners would contend that OS No.555 of 1982 and OS No.385 of 1984 filed before the Principal District Munsif, Ongole, for permanent injunction against the Municipality in respect of relevant properties were allowed, by reason of which the judgments and decrees passed therein, would operate as res judicata to file the O.P. He has emphasized that in Ex.A29 a copy of written statement filed by the first respondent in OS No.385 of 1984, a stand was taken to the effect that the plaintiffs therein (petitioners herein) sold the house plots on their own accord without obtaining necessary approved layout and also without fulfilling necessary layout conditions, but contrary to that the Municipality relied on Ex.B1, a false document to establish those factors. He claims that in fact the Municipality only pleaded that the plot No.11, a reserved site was to be handed over to it by executing registered gift deed under the layout, which in fact was not done,

¶19

but contrary to that, the courts below held that the petitioners surrendered both the plots to the Municipality following which the Municipality provided amenities therein. He has very much stressed that there were no rules prescribing the extent of land to be left over for public purpose and for the first time in G.O.Ms.No.62 Municipal Administration dated 28.1.1970 and Andhra Pradesh Municipalities (Layout) Rules 1970 provided that the land required to be set apart under clause (b) of Sub-Section (2) of Section 184 shall not be less than 5% of the grass area covered by the layout, with not more than 8 plots for grass hectare, whereas over and above that for the increase of every two plots for the grass hectare, the open spaces to be provided should increase by one more percent, which was increased to 10% in G.O.Ms.No.982, dated 5.10.1979. He pleads therefore that the claim of the Municipality that the appellants surrendered the disputed area which comes to 19 cents in 1966 is unbelievable. He also pleads that in any case, when the land covered under the layout is Ac.1-61 cents and 10% of it comes to 0.16 cents, it is unimaginable to think that any prudent person would surrender more than the required site under the statute. He also claims that there is clear evidence of the petitioners paying property tax as demanded by the Municipality from time to time, which proves their ownership and continuous possession and enjoyment of the property.

¶20

Before going into merits of the case, it is necessary to examine the question of maintainability of the writ petition as against the orders passed by the Tribunal and Special Court in relation to the question of land grabbing. Section 7-A of the Act deals with the powers of the Special Tribunal. The Tribunal is empowered under this provision to take cognizance of a case of land grabbing as enumerated therein. Rule (1) thereunder

¶21

empowers the Special Court either suo motu, or on application made to take cognizance of and try every case arising out of any alleged act of land grabbing, or with respect to the ownership and title to, or lawful possession of, the land grabbed. Rule (1-A) enjoins that the Special Court for the purpose of taking cognizance of the case, shall consider the location, or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter. The proviso thereunder envisages that the Special Court shall not take cognizance of any such case without hearing the petitioner. Rule-3 thereunder provides that an appeal shall lie from any judgment or order not being interlocutory order from the Special Tribunal to the Special Court on any question of law or fact with a rider that every appeal under this sub-section shall be preferred within a period of 60 days from the date of judgment or order of the Special Tribunal. Therefore, the order passed by the Special Court consequently in the appeal shall be final. The proviso thereunder provides for entertaining the appeal after the expiry of the said period on showing sufficient cause. By virtue of SubSection 4 every finding of the Special Tribunal with regards to any alleged act of land grabbing shall be conclusive proof of the fact of land grabbing and of the persons who committed such land grabbing and every judgment of the Special Tribunal with regards to the determination of title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in the such land, subject to the provisos 1 to 3 there under.

¶22

In State of A.P v. P.V.Hanumantha Ra o^[1] the Supreme Court had occasion to consider the scope of the powers of Special Court with reference to the relevant provisions of the Act and also the

¶23

scope of invoking the extraordinary jurisdiction of the High Court. The Supreme Court held;

¶24

“On examination of the relevant provisions of the Act of 1982 and in the light of its objects and reasons, it is apparent that in cases of alleged land-grabbing, exclusive jurisdiction is conferred on the Special Court. Jurisdiction of a civil court on such subject-matter stands ousted. The Special Court has been conferred powers of a civil court to examine all questions of title and possession with respect to the land alleged to have been grabbed. The findings of the Special Court are binding and conclusive on the parties and all others having interest in the land which is alleged to have been grabbed. Against the decision of the Special Court, no appeal is provided. The only remedy of the aggrieved party is to approach the High Court under Article 226 or 227 of the Constitution of India. It is on the basis of the aforesaid provisions that we have to determine the scope of interference of the High Court in writ jurisdiction in the judgment and decision of the Special Court.

¶25

True it is that remedy of the writ petition available in the High Court is not against the “decision” of the subordinate court, tribunal or authority but it is against the “decision-making process”. In the “decision-making process”, if the court, tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining.”

¶26

The Supreme Court also considered the decisions rendered [2] [3] in Surya Dev v. Ram Chandr a and Sawarn Singh v. State of Punja b while examining the nature and ambit of the power of the High Court to issue writs under Article 226 or 227 of the Constitution. In Surya Dev, the Supreme Court held

¶27

“39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. … At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.”

¶28

In Sawarn Singh v. State of Punjab, the Supreme Court held:

¶29

“13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.”

¶30

These decisions clearly emphasize the scope of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution by mandating that the remedy under the writ petition available in the High Court is not against the decision of the Subordinate Court, Tribunal or Authority, but against the decision making process and in the decision making process, if the Court, Tribunal or Authority concerned with has ignored vital evidence and thereby arrived at erroneous conclusion or misconstrued the relevant provisions or misunderstood the scope of its jurisdiction, the extraordinary jurisdiction of the High Court can be invoked to set right such errors and prevent gross injustice to the complainant.

¶31

The petitioners who approached the Tribunal or the civil court to declare the respondents as the land grabbers of the property are burdened with establishing their claim placing necessary evidence. Similarly the plaintiff in the suit filed for permanent injunction is also burdened with establishing his claim placing necessary evidence. In view of the limitations provided to entertain the writ petition it is just to be considered as to whether the Tribunal and the Special Court properly examined the evidence recorded and properly disposed of the matter and nothing more. Any disposition of the matter adhering to the evidence adduced in the absence of

¶32

the dictum laid down by the Supreme Court is not proper.

¶33

Quite surprisingly the petitioners failed to place sufficient evidence to substantiate their claim that under the layout, they retained the plots to 10 and 11. There is also no consistent evidence with regards to the actual extent of the property covered by the layout. In Ex.A28 memorandum of understanding the petition schedule property was shown under A schedule as:

¶34

“Ongole Sub-Registration, within town limits T.S.No.18 and 20/1, W-3, B-1, total extent 0.25 cents bounded by:

¶35

East: Cheedella Koteswara Rao South: Municipal road West : Municipal road North : Ch.Audalamma and S.N.Peeru Saheb.”

¶36

But as per Ex.A2 plan attached to the plaint in OS.No.385 of 1984 filed by the petitioners against the Municipality the property was shown with boundaries:

¶37

North: Puvvada Venkata Subbaiah and sons South: Municipal Road East : Mumtaz Begum West : Municipal road

¶38

with dimensions East and West: 68’ ft and North & South: 120’ft which would work out to 8160 sq.ft or 906.66 sq.meters or 18.673 cents. In the same sketch it was also shown that a part of plot No.10 was sold to muslims. Therefore, the extent given in Ex.A28 does not tally with the extent given in Ex.A2 for the schedule property. Further what is significant is that both the documents provide that roads were laid on the southern and western sides.

¶39

Apart from that, quite significantly the petitioner as P.W.1 admitted in his evidence “..There is a 30’ feet width road on the southern side of plot Nos.10 and 11. It crosses the road known as Mukthinuthalapadu Donk. That 30’ feet width road is in our Acs.1-

¶40

61 cents layout plot. Another 50 cents of land on the southern side of this road belongs to us……”. Further P.W.1 also admitted in his evidence that electrical lights were laid while denying that they were formed by the Municipality. He also admitted in his evidence that drainage canals were laid on the western and southern side of the plot Nos.10 and 11. There is no basis to say that they or some other private persons provided those amenities. Hence, it shall be deemed that the petitioner or their mother set apart certain area for providing roads and other amenities for public purpose which was vested with the municipality following which the municipality laid the roads and drainage canals and set up the street lights. This belies the evidence of P.W.1 that they were not formed by the Municipality.

¶41

Significantly, learned counsel for the petitioners in this connection places reliance upon the written statement filed in O.S.No.359 of 1984, a copy of which was marked as Ex.A29 which provides that the petitioners sold the plots as per the layout without the approval of the municipality, while asserting that Ex.A29 disproves the claim of the municipality that the petitioners in fact submitted Ex.B1-layout or any other layout and got the approval of it from the municipality.

¶42

In this context, basing upon the record, it is categorically observed by the Special Court that, admittedly, a layout plan was submitted to the municipality by the mother of the petitioners in the year 1963 itself and Ex.A21 is the final third modified layout submitted by the petitioners as admitted by PW1 in his chief examination, whereas it is the case of municipality that the layout was approved. Apart from that, neither in OS No.385 of 1984 nor in OP No.412 of 1992 the petitioners took a specific plea that no layout plan for approval was filed by them leaving a specific area to

¶43

provide amenities nor it was approved by the municipality, which thereby gives an inference that in fact, even according to them, they submitted such a layout (in respect of the property in question) which was approved by the municipality. In the light of the admission, specific or implied, made by them, what is pleaded in Ex.A29 by the municipality that the petitioners sold the plots as per the layout without its approval cannot be taken seriously and hence need not be taken cognizance of. In addition to that, there is no pleading and evidence about the surrender of the actual area and also whether that conformed to the relevant rules framed in that behalf to open up that issue now.

¶44

When the evidence let in sufficiently provides that in fact a specific area was left over and accordingly the municipality used it for providing the amenities, it must be concluded that the petitioners or their mother did so under an obligation or keeping in view the welfare of the occupants of the plots. Payment of land revenue for however longer period it may be is not sufficient to uphold their claim. The land revenue receipts are only means but not substantive evidence to establish their rights over the property.

¶45

As the petitioners failed to substantiate their claim the ultimate findings of the Tribunal and the Special Court cannot be said to be improper and incorrect. The Tribunal and the Special Court considered properly all the material evidence placed before them. Because the scope of the writ petition is very limited this Court cannot further probe into the matter.

¶46

However, there is relevancy to examine the rights of the Municipality to use the leftover site for a different purpose than purported. Those who are entitled to enjoy the amenities will have definitely a right to question the propriety of the municipality to do so. When the municipality had taken the land under the layout for a

¶47

public purpose, it has to use the land for the protection or observation of hygienic conditions of the residents of the locality in particular and people in general. If it is used for any other purpose, it is nothing but violating the purpose of leaving the land for pubic purpose. Consequently, the construction of the school therein which would defeat the purpose of taking the specified area for the public purpose is contrary and prejudicial to the public purpose. By doing so, hygienic conditions which are required to be maintained/environmental necessities would be greatly effected. Thereby the residents of the area are deprived of the quality of life to which they are entitled to as per law. Therefore, it cannot be termed as one meant to be done in public interest. It also amounts to violating the norms prescribed for setting apart the land for public purpose and also violating the agreement to abide by the conditions probably incorporated in the approved layout in that behalf subject to any exceptions provided under law.

¶48

The A.P Town Planning Act aims at planned development of towns for securing their inhabitants, sanitary conditions, amenities and conveyance. Section 9 of the Act requires the municipal council to pass a resolution to prepare a scheme within the municipal area. Section 11 of the Act provides for publication of such draft scheme within twelve months from the date of the resolution. As envisaged under Section 13 of the Act, every draft scheme shall contain the plan showing the lines of existing and proposed streets, the ownership of lands whether public or private, the description of the details of the scheme and other particulars as may be prescribed by the State Government and that scheme is to be sent to the Government for sanction, whereby the Government has to call for objections from the concerned before according sanction. By virtue of sub-sections (5) and (6) of Section 14 of the

¶49

Act necessary publication is to be made. Section 19 of the Act contemplates that it shall be the duty of the responsible authority as defined under Section 2(8) of the Act to enforce the scheme and carry out the necessary execution observing necessary formalities. Section 14 of the Act also provides that the Government alone is competent to sanction the draft plan prepared as per the resolution of the Municipal Council. When once the scheme is approved/sanctioned by the Government, it will remain in force unless it is varied or altered in accordance with the procedure prescribed under Section 15 of the Act. In that context of violating or revoking the scheme sanctioned under Section 14 of the Act, it shall be incumbent to invite objections or suggestions by publishing the draft of the variation from the Municipal Council or the residents of locality affected by such variation before issuing notification.

¶50

In Sri Ramakrishna Educational Society, Nandal v. Chairman, Nandyal Municipality, Kurnool District and another^[4] a similar circumstance arose for consideration. A master plan was approved by the Government in G.O.Ms.No.63 dated 30.1.1990 showing certain land as a play ground (i.e., recreational). Accordingly, the land was used till 1999. Thereafter a Rythu Bazar was established without complying with the procedure contemplated under Section 15 of the Act. On behalf of the respondents it is contended that when once the layout was approved under the Town Planning Act, the roads, parks and lights set apart for common use would vest in the Municipality and when once that was done, there is no prohibition for using the land for other purposes, though it was ear marked for one purpose subject to necessary permission to be given by the Government. Hon’ble Sri Justice V.V.S.Rao upon considering various decisions and aspects held as follows:

¶51

“Reading Sections 14 and 15 of the Act together, it must be held that the master plan containing town planning

¶52

scheme, as sanctioned and notified by the Government in accordance with Section 14, cannot be varied or altered unless such variation is sanctioned by the State Government and done by way of notification. Admittedly, no such notification was published in the Official Gazette as required under Section 15(2) and therefore, the conversion of the playground by the respondents as Ryuthu Bazar is illegal. It is no doubt true that the Ramakrishna Vidyalaya, which is run by the petitioner society, does not form part of Srinivasa Colony, which has come up in the layout T.P.No.18/77. It is also not in dispute that the petitioner’s request made to the Municipal Council for lease of the playground in their favour did not materialize. Both these factors do not in any manner valid the action of the respondents in converting playground as a Rythu Bazar without valid notification under Section 15(2) of the Act.”

¶53

In the case on hand also, it seems no such measures as contemplated under Section 15 of the Act were taken. In fact, it is not the specific case of the first respondent that the conversion of the land is being made as per law. Therefore, the construction of elementary school is illegal and cannot be done. Thereby any part of construction made is liable to be and shall be demolished being against the law.

¶54

In the result, the Writ Petition is dismissed as devoid of merits, but subject to the observations made with regards to the right of the Municipality to construct the elementary school. There shall be no order as to costs.

¶55

_______________

¶56

(V.V.S.RAO, J)

¶57

_________________________________ (G.KRISHNA MOHAN REDDY, J)

¶58

Date: 24.4.2012 DA/KVS

¶59

Note: L.R. copy be marked.

¶60

B/o DA