Andhra HC (Pre-Telangana)
Kalasagaram (Regd.) Secunderabad ... vs State Of Andhra Pradesh And Ors. on 30 December, 1997
Equivalent citations: 1998(1)ALD595, 1998(1)ALT212
Author: A. S. Bhate
Bench: P. Venkatarama Reddi, A.S. Bhate
ORDER A. S. Bhate, J.
1. Writ Appellant herein is the writ petitioner, who tost in W.P.No.12923 of 1996.
2. The appellant is a Cultural Association duly registered and came into existence in 1967. The appellant requested the second respondent to grant some land for erecting an Auditorium for purposes of promoting Fine Arts i.e. music, dance, drama and oiher cultural activities. The second respondent accordingly granted land admeasuring 4,280 Sq. yards by a registered lease deed of 17-7-1982 in favour of the appellant. The identity of the land is not in dispute. The lease was for a period of thirty years. The appellant claims that it was put in possession of the said land at the time of execution of the lease deed. Entire lease amount was paid in advance. The lessee permitted construction of Auditorium on the land subject to certain conditions of payment of taxes etc. In 1987 an application was made for construction of Auditorium. The second respondent directed the appellant to deposit Rs.50,000/- towards fees, charges etc. and the amount was deposited on 20-11-1987. The plan was not sanctioned by the second respondent inspite of compliance of the direction given by it. The appellant was continuously making representation in the matter, the last being on 22-2-1992. It is alleged that the then Minister Sri Alladi Raj Kumar gave adverse report thereafter to the first respondent. This was on basis of some representation made by persons, who were ill disposed towards the appellant. As a result, Respondent No. 1 issued impugned Memorandum of Municipal Administration and Urban Development Department No.63/II/788-2, M.A., dated 10-2-1992 directing Respondent No.2 to cancel the registered lease deed dated 17-7-1982. The appellant has thereafter come to the Court for seeking a writ declaring the impugned Government Memorandum dated 10-2-1992 issued by Respondent No.1 as illegal and violative of principles of natural justice and seeks a consequential direction to Respondents 2 and 3 to sanction the plan submitted by the petitioner for construction of the Auditorium.
3. The learned single Judge before whom the writ petition came dismissed the writ petition after going through the affidavit and counter affidavits filed by the parties.
4. There is no dispute that the land in question was granted by Respondent No.2 by a lease. The contention of the respondents now is that the land was part and parcel of a sanctioned lay-out in favour of Government Employees Cooperative Housing Society, The land in question was reserved for purpose of play-ground, park etc. The land stood vested in Respondent No.2 after it was reserved for purposes of park, play-ground ere. The learned single Judge found that under Section 679A of the Hyderabad Municipal Corporation Act, 1955 (for short 'the Act') the Government, is authorised either suo moto or on any representation of the Counsel, to cancel any resolution order, or licence or permit of the Corporation which is in the opinion of Respondent No. 1 not in accordance with law. The learned single Judge held that Respondent No.2 had no authority to grant lease of the land vested in it for particular purpose. In other words, when the land is reserved for a particular purpose, it cannot be allowed to be utilized for different purpose by granting a lease even though the different purpose might also be a public purpose. It cannot be used for the purpose for which it was reserved. This is apart from the fact that Respondent No.2 has no authority of its own to transfer the land without the Government authorization. The learned Judge also found that there was no material to show that the claim of the Appellant that the land was put in its possession was justified. On the other hand, the circumstances showed that the appellant was not in possession of the land. Another ground for dismissing the appellant's claim was that there was delay in approaching the Court. Though the learned single Judge held that the provision under Section 679A of the Act required that Government should before taking any action was bound to give an opportunity to the concerned authority or person and no such opportunity was given to the appellant in the instant case before issuance of the impugned memorandum, the memorandum need not be quashed because the quashing of the said memorandum would amount to reviving of the lease which itself was result of illegal exercise of power. The learned single Judge by relying upon the decision in Venkateswara Rao v. Government of A.P., , observed that issuing any writ would be improper if the result was to give effect to or to revive another order which is also illegal.
5. We have carefully considered the contentions raised on both sides. We are of the view that the dismissal of the Writ Petition was unjustified. Section 679A of the Act though empowers the Government either suo motu or on represenlation of any Councillor, to cancel any resolution passed, order issued or licence or permission granted, the proviso to the said section requires that before taking any action under the Section on any of the grounds the Government has to give opportunity to the person of explanation. This proviso is mandatory in nature and does not admit of any exception. The learned single Judge has referred to this proviso and in his opinion also the proviso is mandatory. It is not disputed in the present case that the Government did not give any opportunity of explanation to the petitioner before passing the impugned memo. On this ground alone the petition ought to have been allowed and the Government should have been given liberty to issue show cause notice as to why the order in the nature of impugned memo should not be passed. The learned single Judge has given certain grounds for not taking recourse to this procedure. It is, therefore, necessary to see the grounds on which the learned single Judge did not find it necessary to make such order,
6. Relying on the decision of the Supreme Court in Venkateswara Rao v. Government of Andhra Pradesh (supra) the learned single Judge held that consequence of setting aside the impugned memo would be to revive the lease which was granted in favour of the petitioner in 1982. The said lease was found by the learned single Judge, to be illegal. Firstly it is held by the learned single Judge that the land which was leased to the petitioner by Respondent No.2 in 1982 was out of the land reserved for public purpose viz., playground/park etc. As the land was so reserved for particular public purpose, the said land could not be transferred by Respondent No. 2 for any other purpose even though the land vested in Respondent No.2. It was stated that the land reserved for such purpose cannot be said to be land belonging to Municipal Corporation and available for alienation within the meaning of Section 148 of the Act. We find that no ground was raised by Respondent No. 1 or by Respondent Nos. 2 and 3 to this effect. That was a pure question of fact and, therefore, it should have been left open for the petitioner to explain in an appropriate show cause notice issued to him by Respondent No.2. In the counter of Respondent Nos.2 and 3, no doubt it is stated that the land was originally earmarked for playground/park and was meant for enjoyment of local residents however, no plea was raised in the manner in which Ihe learned single Judge has construed the same. What is urged in the counter is that the residents of the locality had subsequently raised objections that construction of auditorium would disturb the tranquilily on account of vehicle parking and public attendance at the function. In our view, it was not necessary to decide the factual aspect as to whether this land was reserved for any particular purpose and was incapable of being leased out by Ihe respondent-Corporatioa.
7. It further appears that the learned single Judge found that Section 148 of the Act requires that the Commissioner of the Municipal Corporation should obtain the sanction not only of the Corporation but also the Government approval for leasing out the municipal land to others. That the lease was illegal is not averred by any of the respondents in their counter. If for any reasons it was invalid that would be a subject-matter of enquiry which can be made by giving proper opportunity to the petitioner as required under Section 679A of the Act.
8. The learned single Judge has found that the petitioner was not put in possession of the land. We are unable to agree with this conclusion. The petitioner has specifically averred in the petition in Paragraph 4 of the affidavit that the petitioner was put in possession by Respondents 2 and 3. This averment is not challenged either by Respondent No.1 or by Respondent Nos.2 and 3 in their counters anywhere. It is no doubt true that in the counter filed by Respondent No. 1, it has been stated that local residents have been in the enjoyment of playground and park. Merely because local residents have been enjoying the land as a playground does not mean the petitioner was not put in possession. It is, therefore, not appropriate to say that the petitioner, was not put in possession and the lease was not granted to it validly.
9. The learned single Judge has found that there was delay in approaching the Court and, on that ground the petitioner was not entitled to relief No doubt there is delay in approaching the Court The impugned memo was issued on 10-2-1992 and the petition has been filed in November, 1997 but we find the petitioner was not silting silent. Representations have been made by the petitioner soon after the impugned memo was issued. In February, 1992, later in May, 1993 and again in August, 1993, the petitioner made representations to the State Government but none of these representations were considered and disposed, In our opinion, delay in such circumstances, would not amount to laches and would not disentitle the petitioner to deprive it from seeking relief It is needless to state that every delay does not automatically amount to laches. It is thus found that as the Respondent No.1 was not taking any action on the representation, then only, the petitioner came to the Court. On the other hand, the action of the petitioner in depositing Rs.50,000/-shows that the petitioner was not indolent or disinterested in pursuing the matter.
10. We therefore feel that the writ petition should have been allowed. The ratio of the aforesaid case i.e. Venkateswara Rao v. Government of A.P. (supra) does not apply to the present case, In Venkateswara Rao's case the Supreme Court found that by setting aside the impugned order another illegal order would be revived. Both the orders in questions were passed without following the due procedure. The flaw in each of the two orders was that without giving an opportunity to the affected party the said order was passed. The law required giving opportunity before passing of the second order as well as the first order. It was in this background lhat the Supreme Court found that setting aside the second order would revive the first order which was equally illegal. We do not feel that the said case has any application to the facts of the present case. In the present case whether the lease was invalid ab initio was not the issue raised by any of the respondents in the writ petition. The whole thrust of the respondents stand was lhat the Respondent No.l had the power under Section 679A of the Act to cancel the earlier action of granting lease and, the impugned memo has been issued in view of the representation made by the public that construction of Auditorium on the lease land would interfere with their privacy and disturb the tranquility of the area.
11. In view of the above reasons, we allow the Writ Appeal and direct that the impugned memo dated 10-2-1992 passed by the Government of A.P., is set aside, as it is in contravention, of the proviso to Section 679A of the Act. It will of course be open for the Respondent No.1 to give opportunity to the petitioner and pass appropriate order in the matter in accordance with law.
12. In the circumstances, no order as to costs.