IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 25092 of 2007 Between: AP Municipal Workers & Employees Union (Regd. No. 46, Prakasam District Committee, rep by President, K. Venkateswarlu S/o Adanna, aged 43 years R/o Ongole, Prakasam District. ..... PETITIONER AND 1 The State of A.., rep by its Secretary, Municipal Administration, Secretariat Buildings, Hyderabad. 2 The Commissioner and Director of Municipal Administration, AC Guards, Hyderabad. 3 The Municipal Council, Ongole, Prakasam District, rep by its Chair- person. 4 The Ongole Municipality, Ongole, Prakasam District, rep by its Commissioner. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction, more particularly, one in the nature of Writ of Mandamus declaring the Resolution No. 875 dt 31-10- 2007 passed by the 3rd respondent's council as illegal, arbitrary and contrary to the Resolution No. 617 dt 28-1-2007 passed bythe 3rd respondent's council is of no power and further direct the respondents to allot the house sites tothe members of the petitioners union in terms of Resolution NO. 617, dt 28-2-2007 passed by the 3rd respondent council in terms of GOMS, 244, dt 28-2-2005 and pass such other order or orders as this Hon'ble Court may deem fity and proper inthe circumstances of the case. Counsel for the Petitioner:MR.P.RAGHAVENDRA REDDY Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : O R D E R: 1. The petitioner is a Union of A.P. Municipal Workers and Employees of Ongole Municipality. The Government issued G.O.Ms.No.244 dated 28.2.2005 detailing the methodology for allotment of house sites in favour of individual employees. Conditions for allotment are also stipulated in the said government order. The petitioner-Union submitted representation to Ongole Municipal Council for allotment of house sites. The Municipal Council passed resolution No.617 dated 28.2.2007 allotting Ac.10-00 of land to the employees of Ongole Municipality. The proposal of allotment of land is to be sent to empowered committee for the purpose of fixation of rate in pursuance of G.O.Ms.No.244, dated 28.2.2005 and G.O.Ms.No.243, dated 28.2.2006 of Revenue Assessment Department. Basing on the resolution, the Commissioner, Ongole Municipality issued a circular in ROC.No.16305/99-G1, dated 16.4.2007. The text of the circular reads as under: “ In pursuance of the representation vide reference 1st cited above, it is resolved to allot the land for house sites to the Municipal Employees and workers as per the resolution No.617, dated 28.2.2007 as per the G.O.Ms.No.244, dated 28.2.2005. As per the said G.O. it is mandatory to form into a group with a minimum of 12 persons or into a cooperative society by preparing the list of eligible employees and by following other required guidelines to submit representation to the District Collector. Therefore, copy of the G.O.Ms.No.244, dated 28.2.2005 is enclosed herewith for your reference to submit the same as per the G.O.” 2. Subsequently, the Ongole Municipal Council by its resolution No.875, dated 31-10-2007 cancelled the earlier resolution No.617, dated 28.2.2007 and decided to handover the site to the government for development of Rajiv Swagruha Scheme. The resolution No.875, dated 31.10.2007 passed by the Municipal Council, Ongole Municipality is assailed in this writ petition. The relief sought for in this writ petition reads as under: “ For the reasons stated in the accompanying affidavit the petitioner prays that the Hon’ble Court may be pleased to issue a writ, order or direction, more particularly, one in the nature of writ of mandamus declaring the resolution No.875, dated 31.10.2007 passed by the 3rd respondent’s council as illegal, arbitrary and contrary to the resolution No.617, dated 28.2.2007 passed by the 3rd respondent’s council is of no power and further direct the respondents to allot the house sites to the members of the petitioners union in terms of resolution No.617, dated 28.2.2007 passed by the 3rd respondent council in terms of G.O.Ms.No.244, dated 28.2.2005 and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 3. While issuing rule nisi, an order of status quo came to be granted on 27-11-2007 in WPMP.No.32710 of 2007. 4th respondent entered appearance and filed WVMP.No.2811 of 2008 with a prayer to vacate the interim order of status quo dated 27.11.2007. 4th respondent filed counter affidavit. Sri.S.Ravindra Babu, Commissioner, Ongole Municipality has sworn to the counter affidavit. It is stated in the counter affidavit that under Rule 8 of Schedule I of A.P. Municipalities Act, 1965 the Council is empowered to modify or cancel a resolution and that the only embargo is that “no resolution of the council shall be modified or cancelled within three months after the passing there of except at a meeting specially convene in that behalf and by a resolution of the council supported by not less than one half of the number of members than on the council. For better appreciation, para 4 of the counter affidavit reads as under: “ 4. It is further submitted that Sec.32 of A.P. Municipalities Act, 1965 provides Rules and Regulations for proceedings of the Council. As per Sec.32 the Council shall observe the Rules in Schedule 1. Schedule 1 of the A.P. Municipalities Act provides the Rules regarding proceedings of the council. Rule 8 of the Schedule 1 provides the modification and cancellation of the resolutions by the council. Rule 8 reads as follows: Rule 8: No resolution of the council shall be modified or cancelled within three months after the passing there of except at a meeting specially convene in that behalf and by a resolution of the council supported by not less than one half of the number of members than on the council.” From the above Rule it is very clear that council can modify or cancel after 3 months or within 3 months in specially convened meeting with one half of the majority of the members. Admittedly, the council resolution No.875, dated 31.10.2007 is passed after 3 months of earlier council resolution No.617, dated 28.2.2007. The council resolution No.817, dated 31.10.2007 is passed unanimously.” 4. When the vacate stay petition came up for consideration, with the consent of learned counsel for the parties, the writ petition is taken up for final disposal. 5. Heard learned counsel appearing for the parties. 6. Learned counsel appearing for the petitioner submits that 3rd respondent having passed the resolution No.617 dated 28.2.2007 allotting the site to the employees of Ongole Municipality cannot nullify the said resolution by passing another resolution No.875, dated 31.10.2007. He would also contend that the reason for cancellation of the resolution allotting site to the employees of Ongole Municpality cannot be justified. 7. Learned Standing Counsel appearing for R3 and R4 submits that the Council of Ongole Municipality is empowered to cancel or modify the resolution dated 28.2.2007. He took me to Rule 8 of A.P. Municipalities Act, 1965 (extracted above). 8. Two issues that call for adjudication in this writ petition are: i) Whether the 3rd respondent-Council is empowered to cancel or modify the resolution passed earlier; ii) Whether the relief sought for by the petitioner-Union can be granted. 9. Rule 8 of Schedule 1 of A.P. Municipalities Act, 1965 puts a bar for cancellation of the resolution within 3 months after passing thereon. The resolution No.617 came to be passed on 28.2.2007. The said resolution came to be cancelled by another resolution No.875 dated 31.10.2007. Indisputably, the second resolution is after about eight months of the earlier resolution. The reasons for cancellation of the earlier resolution are evident from the record. The only bar under Rule 8 is that no resolution of the Council shall be modified or cancelled within three months after passing thereof. Since the resolution which is assailed in the writ petition came to be passed after eight months of the earlier resolution, the 3rd respondent-Council is well within its competency. Therefore, the first issue is answered accordingly. 10. Writ of Mandamus is a preemptory order of the Court commanding some body to do that which he is under a clear legal duty to do. In order to obtain a writ, or order in the nature of Mandamus, the applicant must satisfy the following conditions: (1) The applicant must show that he has a legal right to performance of a legal duty (as distinguished from discretion) by the party against whom the mandamus is sought and such right must be subsisting as on the date of petition. (2) The duty that may be enjoined by Mandamus may be the one imposed by the Constitution, a statute, common law or by rules or orders having force of law. 11. There is no statutory duty on the part of 3rd respondent-Council to provide house sites to its employees. Therefore, no mandamus can be issued to 3rd and 4th respondents as sought for by the petitioner-Union. The second issue is answered accordingly. 12. Learned counsel appearing for the petitioner submits that the members of the petitioner Union formed into a Society called “The Ongole Municipal Engineering Employees Mutually Aided Cooperative Housing Society Limited Ongole” and the members of it are anxiously waiting for securing house plots. 13. Such is the situation, The Ongole Municipal Engineering Employees Mutually Aided Cooperative Housing Society Limited, Ongole is at liberty to make an application to the Municipal Council, Ongole Municipality, for allotment of house sites to its members and in the event of such application being filed, the Municipal Council, Ongole, has to consider the same and take appropriate decision. 14. With the above observation, the writ petition is disposed of. No order as to costs. 28th November, 2008. (B.Seshasayana Reddy,J) tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.25092 OF 2007 28TH NOVEMBER 2008.