WP/18448/2013 of Jupiter Automobiles, Vs Greater Visakhapatnam Municipal Corporation, on 30 December 2014

ORDER:

This Writ Petition is filed seeking a Writ ofMandamus to declare the action of 1[st] respondent inrejecting the application made by the petitioner for buildingpermission in respect of plot No.44, block No.50 inT.S.No.1196/43 (B), Waltair Ward, Visakhapatnam, videEndorsement in Rc.No.15798/2012/ACP-III dt.10-05-2013as illegal, arbitrary and unconstitutional and to issueconsequential direction to 1[st] respondent to approve thebuilding permission in favour of the petitioner in respect ofthe said property.

2. The above property is of extent 836 sq.ydsand the petitioner had purchased the same underregistered sale deed dt.28-01-2009 from the previous owner Anjuman-E-Badri. The petitioner’s vendor had previously purchased thesame from its previous owner Dantuluri SanyasiSuryanarayana Gajapati Raju under registered sale deeddt.17-02-1990. The said Gajapathi Raju had inherited theproperty from his father who had purchased the samefrom the Rani of Daspalla in 1958. According to petitionerthe property has always been private property and was neither assigned land nor does it belong to theGovernment.

3. Petitioner applied for permission forconstruction of a residential building in the year 2009 tothe respondents. The said application was returned on05-06-2009 on the ground that T.S.No.1196, WaltairW a r d , Visakhapatnam was previously notified asGovernment property u/s.22-A of Registration Act,1908 inG.O.Ms.no.657 dt.08-10-2001 and so building permissioncannot be granted for it. Petitioner filed W.P.No.27840 of2009 questioning the same. The said Writ Petition wasallowed on 22-12-2009 holding that the said G.O. wasstruck down by the High Court in another case and theapplication of the petitioner cannot be returned by therespondents on that ground. It directed consideration ofthe petitioner’s application for building permission afresh.

4. Thereafter, the respondents again rejectedgrant of permission to the petitioner for makingconstruction in her property by proceedings dt.18-02-2010. Petitioner questioned the same in W.P.No.30225 of2011. The said Writ Petition was allowed on24-09-2012 setting aside the proceedings dt.18-02-2010of 1[st] respondent and directed 1[st] respondent toreconsider the application filed by the petitioner. ThisCourt held that the objections raised by 1[st] respondent toreject the petitioner’s application for grant of building permission are not tenable. It held that by virtue of thedecision of this Court in W.P.Nos.21487 and 21493 of2000 dt.11-09-2009, the land in T.S.Nos.1196 and 1197of Waltair Ward cannot be considered to be Governmentland and on that ground, the respondents cannot rejectapplication of the petitioner for building permission. Thisorder became final.

Thereafter, 1[[st]] respondent issued another

5. Thereafter, 1[[st]] respondent issued anotherendorsement dt.23-01-2013 requiring the petitioner tosubmit link documents for the purpose of consideration ofthe building application of the petitioner. Petitionersubmitted all the link documents to the respondents.

6. Thereafter, the impugned endorsementdt.10-05-2013 was issued by 1[st] respondent rejecting theapplication of the petitioner on a new ground thatT.S.No.1196/43 (B) of Waltair Ward, Visakhapatnam isearmarked for recreation and as open space (park) useby 1[st] respondent and as such as per the zoningregulations, residential building permission cannot begranted. There is also a reference to Order dt.04-06-2012in W.P.No.36920 of 2012 of this Court without stating howthat order is relevant to the case of the petitioner. It ismerely stated that the District Collector, Visakhapatnamhad filed an application to vacate the order and theGovernment had entrusted the matter to the learned Advocate General to defend the interest of theGovernment in respect of the lands in T.S.No.1027, 1028,1196 and 1199 of Waltair Ward, Dasapalla Hills,Visakhapatnam.

7. Challenging this endorsement, petitioner hasfiled this Writ petition.

8. The petitioner contends that action of therespondents in repeatedly rejecting the application madeby the petitioner for building permission giving differentreasons on each occasion is highly illegal, arbitrary andunconstitutional; that in the counter affidavit filed inW.P.No.30225 of 2011, the respondents had not raisedthe plea that the land in T.S.No.1196/43 (B) of WaltairWard had been earmarked for recreation and open space (park) use; even while asking the petitioner to submit linkdocuments vide endorsement dt.23-01-2013, this was notstated by the respondents; for the first time in the presentimpugned endorsement dt.10-05-2013, this ground israised. It is also pointed out that 1[st] respondent had takena plea in W.P.No.30225 of 2011 (filed by the petitionerquestioning the previous endorsement dt.18-02-2010) thatthe plot of the petitioner falls in unapproved layout andbuilding permission cannot be granted, but suddenly anew plea is raised now in the impugned endorsement thatthe plot is earmarked for recreation and open space (park)use and permission cannot be granted. Counsel for petitioner contends that if at time when W.P.30225 of2011 was filed, her land was in an unapproved layoutaccording to respondents (which plea was rejected in thesaid case), in May 2013 when impugned order is passed,it could not have become an open space(park)/recreational space. It is contended by the petitionerthat this shows that 1[st] respondent is acting with maliceand in a vindictive manner. Petitioner points out that therespondents had in fact granted permission to makeconstruction in T.S.No.1196 of Waltair Ward for one SriA.Man Mohan and three others in respect of D.No.14-1-14/3, Daspalla Hills, Division 19, Visakhapatnam videpermit B.A.No.14024/2012/ACP/III dt.04-12-2013 and nowwhen it comes to the case of the petitioner, it is beingcontended that it has been earmarked as an open spacefor recreation. Petitioner contends that the respondentsare discriminating against her.

9. Learned Counsel for the petitioner hasreiterated the above submissions and relied upon thedecisions of the Supreme Court in Pt.Chetram Vashisti[[1]](dead) by LRs. Vs. Municipal Corporation of Delha n d Machavarapu Srinivasa Rao and another Vs.Vijayawada, Guntur, Tenali, Mangalagiri Urban.Development Authority and others[[2]]

10. Counter affidavit is filed by respondent Nos.1

and 2. They do not deny the return of the petitioner’sbuilding permission applied on 05-03-2009 on the groundthat T.S.No.1196 was notified as Government land videG.O.Ms.No.657 (which was set aside by orderdt.22.12.2009 in W.P.No.27840 of 2009 filed by thepetitioner) or the subsequent rejection on 18-02-2010 onthe ground that the petitioner’s property did not form partof an approved layout and on other grounds (which wererejected in Order dt.24-09-2012 in W.P.No.30225 of2011). It is further contended that although this Court inW.P.No.21487 and 21493 of 2000 had held on 11-09-2009 that the land in T.S.No.1196 and 1197 was notgovernment land, the subject matter of the Writ Petitions ispending in Supreme Court and that the Government ofAndhra Pradesh had filed curative petition which ispending. It is also contended that the site of the petitionerfalls under recreation and open space (park) as per thesanctioned Master plan prepared by the VisakhapatnamUrban Development Authority (VUDA) on 17-11-2005much prior to the sale of the petitioner and thereforebuilding permission cannot be granted to the petitionerand the impugned endorsement is valid.

11. Learned counsel for the respondents alsoreiterated the stand taken in the counter and relied uponthe decisions in Bangalore Medical Trust Vs.B.S.Muddappa and others[[3]]and Dr.G.N.Khajuria and .others Vs. Delhi Development Authority and others[[4]]

12. I have noted the submissions of both sides.

13. It is not in dispute that the petitioner haspurchased the subject property under registered saledt.28-01-2009 from his vendor. When petitioner appliedfor building permission, 1[st] respondent had returned it on05-06-2009 stating that in view of the Notificationcontained in G.O.Ms.No.657 dt.08-10-2001 issued underSection 22A of the Registration Act, 1908, permission forbuilding construction cannot be granted. This waschallenged by the petitioner in W.P.No.27840 of 2009 andthe said Writ Petition was allowed on 22-12-2009. The respondents were directed to considerthe application of the petitioner afresh without reference tothe said G.O.

14. Thereafter, again application of the petitionerfor building permission was rejected by an endorsementdt.18-02-2010 on the following grounds:

“1.The proposed site does not form part ofapproved layout and the site under reference issubdivided unauthorizedly without getting therequired approval from the Visakhapatnam UrbanDevelopment Authority (VUDA) as per theprovisions of Andhra Pradesh Urban AreasDevelopment Act, 1975.

2. The applicant did not enclose therequired link document for site under referencewhile seeking permission.

3. The applicant has to submit certificatefrom Tahsildar, Visakhapatnam (Urban) to theeffect that the site under reference is not aGovernment Land and that the land belongs toapplicant only.

4. The applicant has to submit the UrbanLand Ceiling clearance certificate, from theCompetent Authority, for the site under reference.

The applicant is directed to fulfil the aboverequirements, before the GVMC, can consider therequest of the applicant.”

15. This was questioned by the petitioner inW.P.No.30225 of 2011.

16. By order dt.24-09-2012 the Writ Petition wasallowed and the objections raised by the respondents forgrant of permission to the petitioner were overruled.

17. Although in the Endorsement dt.18-02-2010,the objection raised was that the site of the petitioner didnot form part of approved layout and it is sub dividedunauthorizedly without getting the required approval fromthe VUDA as per the provisions of the AP Urban AuthorityDevelopment Act, 1975, the said contention was rejected

by this Court in it’s order dt.24.09.2012 inW.P.30225/2011. Dealing with this contention raised inthe counter affidavit by the respondents, this Court in itsorder in W.P.No.30225 of 2011 observed as under:

“9. In so far as the question of layout notbeing approved is concerned, the learned counselfor the petitioner relies on Section 463-A of the Act,which enables the Corporation to levy and collectexternal betterment charges in such contingencies.

However, the jurisdiction under the said provision isopen to be exercised by the Corporation in exerciseof its statutory discretion, which, of course, shall beguided by the well settled principles governing theexercise of such discretion and cannot be a matterof conclusion by an order of this Court at this stageand it has to be left to be determined by theCorporation itself.

10. Under the circumstances, the writ petitionhas to be disposed of with appropriate directionswhile setting aside the impugned endorsement inquestion.

11. Therefore, the endorsement from theoffice of the 2 respondent, dated 18-02-2010 ishereby set aside and the application of thepetitioner in B.A.No.10723/09/ACP-III/G2, dated 05-06-2009 shall be duly examined and processed byrespondents 1 and 2 on the petitioner submittingany link documents which may be required to beproduced before the respondents and anycircumstance of the plot being not part of anapproved layout being considered on merits inaccordance with law for appropriate action underSection 463-A of the Greater Hyderabad MunicipalCorporation Act, 1955, as expeditiously aspossible. The writ petition is disposed of with theabove direction. No costs.”

18. But when the impugned endorsement waspassed, the respondents did not consider the matter in thelight of the above direction of this court. This amounts todeliberate and willful violation of the order passed by thisCourt.

19. In the impugned Endorsement dt.10-05-2013, it is no where mentioned that in the Master plan ofVisakhapatnam allegedly framed by the VUDA on 17-11- 2005, the subject property was earmarked for recreationand open space (park use). It is merely stated that site ofthe petitioner is earmarked for recreation and open space(park use) as per GVMC and that as per zoningregulations, residential building permissions are notpermitted.

20. It is settled law that a public order should beinterpreted objectively in the light of the language used inthe order itself and that supplementary reasons in theshape of affidavits have to be excluded. In MohinderSingh Gill and another Vs. Chief Election Commissioner, New Delhi and others[[5]],the SupremeCourt held that when a statutory functionary makes anorder based on certain grounds, its validity must bejudged by the reasons so mentioned and cannot besupplemented by fresh reasons in the shape of affidavit orotherwise. It cautioned that otherwise, an order bad in thebeginning may, by the time it comes to Court on accountof a challenge, gets validated by additional grounds laterbrought out. It relied upon the earlier judgment of theSupreme Court in the Commissioner of Police, Bombay

Vs. Gordhandas Bhanji[[6]], wherein the Supreme Courthad declared that public orders, publicly made, in exerciseof a statutory authority cannot be construed in the light ofexplanations subsequently given by the officer making theorder of what he meant, or of what was in his mind, or what he intended to do and that public orders made bypublic authorities are meant to have public effect and areintended to affect the actings and conduct of those towhom they are addressed and must be construedobjectively with reference to the language used in theorder itself. It was observed that orders are not like oldwine becoming better as they grow older. This principlewas reiterated recently in Dipak Babaria and others Vs.

.State of Gujarat and others[[7]]

21. Therefore, respondents are not entitled tonow raise the contention in the counter affidavit that thesubject land was indicated in the sanctioned master planprepared by the VUDA on 17-11-2005 for recreation andopen space (park). In this view of the matter, I am of theopinion that the decisions in Bangalore MedicalTrust (3 supra)and Dr.G.N.Khajuria (4 supra)need not be considered.

22. Also in that Writ Petition, counter affidavitwas filed by the respondents taking the plea that the landhad not been sub divided authorizedly into plots and theplots were not regularized under the Land RegularizationScheme notified under G.O.Ms.No.92

dt.31-12-2007. Having taken such a plea, it is now notopen to respondents to raise a plea in the impugnedEndorsement that the plot was earmarked for recreationand open space (park). When there is no approved layout of which petitioner’s land forms a part, the respondentscannot contend that the land of the petitioner had beenshown as earmarked for recreation and open space(park).

23. Neither in W.P.No.27840 of 2009 nor inW.P.No.30225 of 2011, had the respondents raised theplea that the site of the petitioner was earmarked forrecreation and open space (park) in the sanctionedmaster plan prepared by the VUDA on 17-11-2005. Noreason is assigned in the counter affidavit filed in thepresent Writ Petition as to why such a plea, thoughavailable to the respondents at the time when both thoseWrit Petitions were decided, was not raised by them. Explanation IV to Sec.11 CPC states:

“Section 11:

No Court shall try any suit or issue in which the matterdirectly and substantially in issue has been directly andsubstantially in issue in a former suit between the sameparties, or between parties under whom they or any of themclaim, litigating under the same title, in a Court competent totry such subsequent suit or the suit in which such issue hasbeen subsequently raised, and has been heard and finallydecided by such Court.

Explanation IV.- Any matter which might and ought to havebeen made ground of defenceor attack in such former suitshall be deemed to have been a matter directly andsubstantially in issue in such suit.”(emphasis supplied)

24. It is settled law that the principles ofconstructive res judicata are applicable to cases arisingunder Article 226 of the Constitution of India. (ForwardConstruction Co v. Prabhat Mandal[[8]]and Devilal Modi

v. ITO[[9]]). I am of the opinion that the plea/defence thatthe petitioner’s property has been earmarked forrecreation and open space (park) in the sanctionedmaster plan prepared by the VUDA on 17-11-2005 wasavailable to the respondents in the two earlier WritPetitions referred to supra but was not raised by themthere. So the principle for constructive res judicata wouldapply and the respondents are precluded from raising thesaid plea in the present Writ Petition.

25. The stand in the impugned endorsement thatas per GVMC, the subject land is earmarked forrecreation/open space (park) cannot also be acceptedbecause no material is placed on record that the 1[st]respondent GVMC had done so or is empowered to doso. The counter affidavit also does not state that it was 1[st]respondent GVMC which had done so. So this contentioncannot be accepted.

26. Although in the impugned endorsement, areference is made by respondents to W.P.No.36920 of2012, the counter affidavit does not indicate how thepetitioner is concerned with the said Writ Petition and it in fact makes no mention about the said Writ Petition at all.Even the orders, if any passed therein, are not producedbefore this Court by the respondents. In my opinion, theimpugned Endorsement also cannot be sustained onbasis of reference to this writ petition or orders therein.

27. In para 7 of the counter affidavit filed in thisWrit Petition, the respondents have raised a plea that thepetitioners did not produce link documents. But such aground is not mentioned in the impugned order. In view ofthe judgments referred to supra in Mohindher Singh Gill(7 supra) and Gordhandas Bhanji (8 supra) referred toabove, the respondents cannot be allowed to take such aplea.

28. As regards the plea in the counter thatalthough this Court in W.P.No.21487 and 21493 of 2000had held on 11-09-2009 that the land in T.S.No.1196 and1197 was not government land, the subject matter of theWrit Petitions is pending in Supreme Court and that theGovernment of Andhra Pradesh had filed curative petitionwhich is pending, is concerned, mere pendency of thecurative petition does not entitle the respondents tocontend that land is Govt.land.

29. In this view of the matter, this Court is of theconsidered opinion that the respondents have beenrejecting the application of the petitioner for buildingpermission arbitrarily and have acted in violation of Article 14 of the Constitution of India. It is clear that therespondents have wrongly exercised the discretionconferred upon them by the Greater Hyderabad MunicipalCorporation Act, 1955 and the exercise of such discretionappears to be mala fide.

30. In Controller and Auditor-General of India,Gian Prakash, New Delhi and another VsK.S.Jagannadhan and another[[10]], the Supreme Courthas held:

“20. There is thus no doubt that the HighCourts in India exercising theirjurisdiction underArticle 226 have the power to issue a writ ofmandamus or a writ in the nature of mandamus orto pass orders and give necessary directionswhere the government or a public authority hasfailed to exercise or has wrongly exercised thediscretion conferred upon it by a statuteor a ruleor a policy decision of the government or hasexercised such discretion mala fideor onirrelevant considerations or by ignoring therelevant considerations and materials or in such amanner as to frustrate the object of conferringsuch discretion or the policy for implementingwhich such discretion has been conferred. In allsuch cases and in any other fit and proper case aHigh Court can, in the exercise of its jurisdictionunder Article 226, issue a writ of mandamus or awrit in the nature of mandamus or pass orders andgive directions to compel the performance in aproper and lawful manner of the discretionconferred upon the government or a publicauthority, and in a proper case, in order to preventinjustice resulting to the concerned parties, thecourt may itself pass an order orgivedirections which the government or the publicauthority should have passed or given had it

31. This principle was reiterated in Badrinath Vs. Government of Tamilnadu and others[[11]]andDestruction of Public and Private Properties in Re Vs.State of Andhra Pradesh and others[[12]].

32. In view of the above principle of law andhaving regard to the repeated arbitrary refusal of therespondents to grant permission to the petitioner to makeconstruction in the subject property, the Writ Petition isallowed and a Writ of Mandamus is issued directing 1[st]respondent to approve the application of the petitioner forgrant of building permission in respect of the subjectproperty without reference to the objections raised by therespondents in the Endorsements dt.05-06-2009, 18-02-2010 and 10-05-2013 within a period of four weeks fromthe date of receipt of a copy of this order. It is furtherdirected that the respondents shall pay costs of Rs.5,000/-(Rupees Five Thousand only) to the petitioner within aperiod of two weeks from the date of receipt of a copy ofthis order.

33. As a sequel, miscellaneous petitionspending, if any, shall stand disposed of.

__________________________________

JUSTICE M.S.RAMACHANDRA RAO

Date: 30-12-2014

Note:Mark the L.R. copy. B/o. kvr

[1](1995) 1 S.C.C. 47[2](2011) 12 S.C.C. 154[3](1991) 4 S.C.C. 54[4](1995) 5 S.C.C. 762[5](1978) 1 S.C.C. 405[6]AIR 1952 S.C. 16[7](2014) 3 S.C.C. 502[8] 1986 (1) SCC 100[9]AIR 1965 SC 1150[10](1986) 2 S.C.C. 679[11](2000) 8 S.C.C. 395[12](2009) 5 S.C.C. 212