Sree Ramalayam Committee ... vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3342 AP

              THE HONOURABLE SRI JUSTICE D.RAMESH

                     WRIT PETITION No.1502 of 2020

ORDER:

The Writ Petition is filed under Article 226 of the Constitution of

India seeking to declare the action of the 2nd respondent in proposing

to establish four government offices under the proposal of ward

secretariat in the community hall which is in park area in the petitioner

association lay out situated in survey no.128/4 and 129/1&2,

Chanakyanagar colony, Chinamushidiwada without any manner of right

and without any authority as illegal, arbitrary and consequently direct

the 2nd respondent not to establish the ward-secretariat in the

community hall in the petitioner association lay out situated in survey

no.128/4 and 129/1&2, Chanakyanagar colony, Chinamushidiwada.

2. Heard Sri Ravi Cheemalapati, learned Counsel for the petitioner

and of Sri S.Lakshminarayana Reddy, learned Standing Counsel for the

respondent municipal corporation.

3. As per the averments in the affidavit, the Naval Armament Depot

Employees Co-operative House Buildings Society No.B1405 has

acquired the land, developed and formed a lay out in the year 1974 by

obtaining panchayat approval and converted the land with 87

residential plots with internal roads. In the middle of the layout in

center area some land was ear marked for park for residents' cultural

activities. In the same year the society handed over the plots to the

respective members and accordingly the respective members have

formed into an association. According to the petitioner's, even before

allotting the plots to the petitioner's, a community hall was existing in

the said park area. Though the community hall was existing at the

park area, but there is no information with regard to the said building

DR,J W.P.No.1502 of 2020

to the members of the association. Hence one of the members of the

association has made an application under Right to Information Act to

Zilla Parishad requesting to provide particulars pertaining to the

community hall. Even before getting the information from the

executive officer of Zilla Parishad, the member has filed one more Right

to Information Act application dated 01.4.2011. Though he was

furnished the information with regard to rules and criteria but with

regard to details of construction of community hall, no information has

furnished. The said person again made a representation on 30.7.2011

to the Public Information Officer asking about the date and construction

of the community hall, sanctioning authority and other relevant

information. In reply to the same, the executive engineer of the 2nd

respondent corporation vide his proceedings dated 13.9.2011 has

informed that the inauguration of the community hall is on 04.10.1987

as per the plaque of the community hall. So far as other information is

concerned, the said authority has stated that it was taken place during

time of panchayat and accordingly directed to obtain the information

from the panchayat raj department. Subsequently, he made another

application on 30.9.2011 to the Chief Executive Officer of Zilla Parishad

for particulars of the said community hall. So far no information has

furnished. While that being so, the 2nd respondent corporation now has

came up with a proposal to establish ward secretariat in the community

hall which is existing in the petitioners park area. Questioning the said

action, the present writ petition is filed.

4. Learned Counsel appearing on behalf of the petitioner has

submitted that though they have made specific questions with regard

to the community hall, the executive engineer of 2nd respondent

corporation with regard to sanctioning authority for construction of the

DR,J W.P.No.1502 of 2020

community hall, sources of funding received from the Central or State

Government from the public hall, the total area of the constructed

community hall and on which type of land it is constructed and after

completion of construction under whose maintenance it is taken care.

But no specific counsel has submitted except saying that the said

community hall is maintained by Greater Visakhapatnam Municipal

Corporation since 2005.

5. Learned Counsel has placed reliance on approved lay out plan of

Naval Armaments Depot Employees Co-operative House Building

Society No.B1405 and also sale deeds made in favour of the members

of the association and in the recitals it is clearly stated that the society

after taking certain extent for common purpose such as roads, parks,

markets, shops, schools, playing ground and other public amenities

common to all members of the society divide the remaining land into

housing plots.

6. By virtue of the lay out granted by the gramapanchayat, the

members of the petitioners society has purchased the plots wherein

certain portion of the land is earmarked for public place especially the

present area where the community hall is constructed is earmarked for

park. Though the community hall is existing, the same cannot be

converted to any other purpose by the 2nd respondent corporation

which is contrary to the ratio decided by the Hon'ble Supreme Court in

Bangalore Medical Trust vs. B.S.Muddappa and Ors1 and also in

Pt.Chet Ram Vashist vs. Municipal Corporation of Delhi2 wherein it was

recited that:

"For these reasons even though the judgment and decree of the High Court are liable to be set aside but we refrain from doing so. Yet in order to protect interests of the owners of house and residents of

1991 AIR 1902

1995 AIR 430

DR,J W.P.No.1502 of 2020

the locality it is directed that the order of the High Court shall stand modified to the following effect:

(1) The Corporation shall have right to manage the land which was earmarked for school, park etc. (2) The Corporation shall not have any right to change the user of land which shall be for beneficial enjoyment of the residents of the colony.

(3) It is left open to the Corporation to get the land transferred in its favour after paying the market price as prevalent on the date when the sanction to the layout plan was accorded".

In view of the above observation of the Hon'ble Supreme Court,

learned Counsel further submitted that the Corporation shall have right

to maintain the land which was earmarked for school, park etc. But

the corporation shall not have any right to change the use of the land

which shall be for the beneficial and enjoyment of the residents of the

colony. Following the said judgment, Hon'ble High Court of Andhra

Pradesh in Telecom Colony Residents Welfare Association vs. State of

Andhra Pradesh3 has categorically held that:

... The term "public purpose" needs a purposive construction in the context of providing hygienic social life to the inhabitants of the locality by developing Parks, Playgrounds, Gardens, Nursery, Community Halls, Libraries etc. Then only the expansive meaning given to the term "Life" under Article 21 of the Constitution of India can be said to be fulfilled and finally held that that the open spaces vested in the Local Authorities while making layouts are held by them under Public Trust and thereby obligated to utilize such open spaces exclusively for the purpose for which they were earmarked. Any deviation, for however different laudable object, will not subserve the interest of public. Therefore, the proposed construction of Village Secretariat (Grama Sachivalayam) by the respondents cannot be given a stamp of approval

In view of the observations of the Hon'ble Supreme Court as well

as the High Court, the counsel for the petitioner has submitted that this

is also identical to the case decided by this Court in the above said

judgment. Here the respondents are contemplating to establish a

village and ward secretariat in the community hall at the park area of

the petitioner society.

7. Denying the allegations made in the writ petition, the 2nd

respondent has filed counter wherein they have denied the approval of

2020 SCC Online AP 140

DR,J W.P.No.1502 of 2020

lay out also. No approved lay out is found after merger of

Gramapanchayat into 2nd respondent corporation, they have stated that

the plot owners have purchased the plots in unauthorized lay out and

got constructed their houses and as such, the question of earmarking

the lay out open space will not arise.

8. Further they have stated that the community hall constructed by

the residents of the Chanaknagar as alleged by the petitioner society is

not correct and they have not filed any proof with regard to the said

fact. As per the records available in the office of the 2nd respondent

corporation, the Indira Priyadarsini kalyana mandapam has been

constructed in the year 1984 ground floor, first floor was constructed in

the year 1987 by the panchayatraj engineering department with the

funds of the Government and handed over to the then

Chinamushidiwada gramapanchayat and the same was let out to

kalyanamandapam till the gramapanchayat merged into the respondent

corporation. Subsequently after 2005, the said kalyanamandapam has

been maintained by respondent corporation by letting out the same

and thereafter on 26.10.2009 a public auction has been conducted in

respect of a lease hold rights of the kalyana mandapam and in the said

auction the leaser was held in favour of one K.Ratna Kumari for a

period of 3 years i.e. from 26.12.2009 to 25.12.2012. Thereafter a

fresh public auction was conducted on 27.11.2013 and the lease was

held infavour of Ch.Nirmala for a period of 3 years and after that in the

year 2017, the respondent corporation has let out the kalyana

mandapam on its own to the individuals for a period of one year and

thereafter again the lease hold rights of the kalyanamandapam was put

for public auction on 31.3.2018 and the lease was held in favour of

Smt. Abburi Seetharatnam being the highest bidder.

DR,J W.P.No.1502 of 2020

9. In view of G.O.Ms.No.217 dated 20.7.2019 for establishment of

ward secretariats in connection with welfare and development in

delivering the services to the public in true spirit and in transparent

manner. Pursuant to the said G.O., the 1st respondent has issued a

circular memo in R.O.C.No.20024/178/2019/A1 dated 05.9.2019

instructing all the commissioners of municipalities and municipal

corporations in the State to establish the ward secretariats in the

municipal buildings and Government buildings within the ward where

sufficient space is available and as last resort private buildings can be

taken on nominal monthly rental basis. Subsequent to the said

circular, the respondent corporation has issued proceedings on

06.01.2020 for cancellation of lease in respect of Indira Priyadarshini

kalyana mandapam for establishing ward secretariat offices and

accordingly the lease granted in favour of Smt. A.Seetharatnam has

been cancelled w.e.f. 01.01.2020. They have also denied that the

information furnished or information sought for from the chief

executive of zilla parizhad and also construction of the community hall

alleged to be made by the petitioner's association and the petitioner's

are claiming title and possession over the kalyanamandapam without

having any right and the same is dispute of facts and hence it cannot

be adjudicated under Article 226 of the Constitution of India as held by

the Hon'ble Apex Court in 1976(3) SCC page 160.

10. Learned Standing Counsel appearing on behalf of the respondent

corporation has vehemently argued that the kalyanamandapam

belongs to the corporation and hence since 2005, the corporation is

maintaining the said kalyanamandapam by giving lease to the third

parties and he places reliance that the notification issued by the

commissioner in the year 2004 and in the year 2014 in a public

DR,J W.P.No.1502 of 2020

auction. In view of the said proceedings it clearly establishes that the

kalyanamandapam is under the control of 2nd respondent corporation

and inview of the policy decision taken by the Government to establish

ward secretariats vide G.O.Ms.No.217 dated 20.7.2019, wherein it is

clearly stated with regard to location of ward secretariats at ward

offices, Anganwadi building, school building, community resource

centre, community hall, Government office within the ward where

sufficient space is available shall be identified and a separate room in

the said building shall be provided for the establishment of ward

secretariats. In view of the above said Government orders, the 2nd

respondent has issued proceedings on 06.01.2020 identifying the

Indirapriyadarshini kalyanamandapam at Chinamushidiwada ward

no.17, as there is no buildings are available.

11. Learned Standing Counsel further submits that it is not in dispute

that the said kalyanamandapam is under the control and maintenance

of 2nd respondent and as directed by the Government, the

commissioner has taken a decision because there is no other available

space in the said locality. Accordingly they have established the ward

secretariats. Hence the action of the 2nd respondent is within the

guidelines issued by the Government in G.O.Ms.No.217 dated

20.7.2019. He further submits that there are disputed facts in the writ

petition and the petitioner's are claiming title over the

kalyanamandapam constructed by the panchayat and it is under the

control of 2nd respondent and hence it cannot be adjudicated in the writ

petition under Article 226 of the Constitution of India. To support his

contention he relied on the judgment reported in between D L F

DR,J W.P.No.1502 of 2020

HOUSING AND CONSTRUCTION CO(P) LTD vs. DELHI MUNICIPAL

CORPORATION4 wherein it is recited that:

17. Thus in these proceedings under Article 226 the Court has been called upon to decide disputed questions of fact and law relating to the precise nature and extent of right, title and interest of the parties in the plots in question. Even the basic documentary evidence, such as the orders granting the sanctions, the conditions of the sanctions and the agreements in which they are said to have been incorporated, were not produced before the pronouncement of judgment in the High Court. Even the questions of law relating to the validity and effect of Regulation 5 (3) could not be properly decided in the absence of proof or admission of such primary facts. The High Court also felt this difficulty in reaching the finding that a fiduciary relationship in the nature of a trust came into existence in regard to the user of these open sites. It conceded that this matter was being considered "in the abstract without reference to the facts of any case", and had to leave undetermined the exact nature of the trust that had come into being and the person or persons in whom the beneficial interest in these open sites was supposed to vest under such trust- Nevertheless, it concluded that "the petitioners had by their own conduct and operation of law ceased to be the full and complete owners of the plots and held them only as trustees." This "conduct" of the petitioners according to the High Court consisted of the acts of making applications for sanction of the lay-out plans to the Authority and the execution of the requisite agreements. But the evidence of those agreements and the terms and conditions of the sanctions were conspicuous by their absence from the record. Again in the absence of relevant material on the record, the High Court found it difficult to record a categorical finding as to whether the provisions of Regulation 5(3) (iv) were only optional and could be waived, or had in fact been waited by the Authority while granting sanction of the layout plans in case of any of these six colonies in question.

18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit.

And also judgment of the Hon'ble Supreme Court in State of

Assam vs. Bhaskar Jyoti Sarma and others5 wherein it is recited that:

In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to

1976 (3) SCC 160

(2015) 5 Supreme Court Cases 321

DR,J W.P.No.1502 of 2020

substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution.

In view of the ratio decided by the Hon'ble Supreme Court in the

above two judgments, the learned Standing Counsel has submitted that

the writ petition is not maintainable and accordingly, the same may be

dismissed.

12. Learned Counsel for petitioner submits that in the writ petition

they never sought for title over the property. Their request in the writ

petition is that the respondent authorities are not entitled to convert

the utility/usage of the building. If the ward secretariat building is

established it causes lot of inconvenience to the locality.

13. The main contention in the writ petition is that the petitioner's

are the members of the association and they have purchased plots in

an approved lay out and in the lay out, the said space is earmarked for

park area. But before purchasing the plots by the petitioner's, they

themselves admitted that the existence of the community hall in the

said area and that is the reason why they are repeatedly requesting the

concerned authority to provide particulars with regard to the

construction and also permission granted by the competent authorities

to construct the said kalyanamandapam. But surprisingly, the

DR,J W.P.No.1502 of 2020

respondents have taken a stand that as if the petitioner's are asking

title over the kalyanamandapam. This is nothing but misconception.

No doubt that after forming a lay out, the public places or open spaces

has to be handed over to the local authorities and the local authorities

have every right to manage the said places in accordance with the lay

out approval plan. And the corporation has every right to manage the

land and roads and public places which are handed over to the

corporation but it should be in consonance with the provisions of the

Act and the plan. The said question was answered by this Court in

Telecom colony residents welfare association vs. State of Andhra

Pradesh (referred to supra) wherein it is held that the respondents

cannot establish any ward secretariats or village secretariats defeating

the object and will of the public interest.

14. Considering the submissions made by both the parties and on

perusal of the record, it is made clear that the petitioner's have

purchased the plots in an approved lay out of concerned

gramapanchayat and according to the said approved lay out filed along

with the reply demonstrates that there was open space earmarked for

park. But the petitioner's association has accepted the existence of the

community hall and the said community hall is also used by the

residents of the association, though the same is maintained by the

corporation. Even according to the corporation's stand, they are

maintaining the community hall by giving lease hold rights to third

parties for performing functions of the residents and others. In view of

the ratio decided by the Hon'ble Supreme Court in Pt.Chet Ram Vashist

vs. Municipal Corporation of Delhi (referred to supra), the corporation

shall not have any right to change the use of land which shall be for the

beneficial enjoyment of the residents of the colony and also following

DR,J W.P.No.1502 of 2020

the same, this High Court has already held that the establishment of

the village secretariats by the respondents in the space earmarked

exclusively for a specific purpose.

15. In the result, the writ petition is allowed directing the

respondents not to convert the usage of the subject building other than

the purpose for which it is earmarked/constructed as per the plan.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Writ Petition shall stand closed.

________________ JUSTICE D. RAMESH Date: 03.9.2021 RD

DR,J W.P.No.1502 of 2020

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.1502 of 2020

Dated 03.9.2021

RD