IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.11482 OF 2011 Between : A.Kiran Kumar ... PETITIONER A N D Ananthapur Municipal Corporation. …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU WRIT PETITION NO.11482 OF 2011 ORDER: This Writ Petition is filed seeking to declare the action of the respondent in issuing Notice, dated 08.03.2011, in R.C.No.4014/92/G1, as arbitrary and illegal and consequently to direct the respondent not to interfere with the possession and enjoyment of the petitioner over the land admeasuring Ac.0-38 cents in survey No.132 (P), Ananthapur. 2. In the affidavit filed in support of the Writ Petition it is stated that the petitioner along with one A.Vijay Kumar, Ram Sankar and Nagarathnamma, had applied for a layout in respect of survey No.132 to an extent of Ac.3-82 cents, situated at Anantapur. Thereafter, the respondent-Corporation approved the layout subject to compliance of certain conditions. Subsequently, due to family disputes, they did not pursue the matter. Thereafter, the petitioner cancelled the proposal for layout. While so, the respondent issued impugned notice, dated 08.03.2011, directing the petitioner to hand over the roads and open space to it within a period of 15 days from the date of receipt of notice. In the said notice, the respondent referred G.O.Ms.No.114 MA, dated 14.03.2006. The said G.O. has no application to the facts of the present case. At the time of applying for layout in the year 1992, A.P. Municipalities (Layout) Rules, 1970, were in force. The petitioners never gifted any property to the respondent-Corporation and hence, the layout deemed to have been cancelled for non-compliance of the layout conditions. After lapse of 19 years, the respondent-Corporation issued the impugned notice only to knock away the property of the petitioner. Unless and until 10% of the open space was gifted to the respondent-Corporation, it had no jurisdiction to interfere with the said property. The petitioner also filed representation, dated 15.03.2011, before the respondent-Corporation stating that as the layout was not approved, interfering with his possession and enjoyment of the property and forcing to hand over the land in its favour, is not correct. Hence, the Writ Petition. 3. The respondent filed counter affidavit stating that the petitioner executed a Bank Guarantee on 12.05.1992 for a sum of Rs.50,000/- towards security deposit. The petitioner got possession over the schedule property through the Compromise Petition, which was filed in O.S.No.369 of 1990. The Director of Town and Country Planning issued a Final layout subject to condition that the roads shall be formed within two months, failing which, the Municipal Commissioner shall take action to cancel the layout duly publishing in the news papers. After demarcation of roads and open space, the Municipal Engineer has directed the applicants to pay Rs.1,88,440/- towards development charges such as cost of pipe, culverts, tree plantation, water supply etc. A notice, dated 29.04.1994, to that effect was issued to the layout owner Sri A.Vijayakumar, but no reply was given by him. Thereafter, in spite of issuance of several notices, the layout owners did not comply with the said demand. The respondent addressed a letter to the Secretary, Anantapur Co-operative Bank requesting to send fresh Bank guarantee of Rs.50,000/- to the Municipal Treasury for adjustment towards security deposit, as earlier bank guarantee was invalid one. Without fulfilling the layout conditions, the petitioner sold away the plots and open space earmarked for public purpose. A show cause Notice, dated 09.10.1995, was also issued to the petitioner. Till date, the petitioner has not handed over the roads and open space to the Municipal Corporation. Though several notices were issued to the layout owners directing to handover the roads and open space to it, they have intentionally prolonged the issue and with a malafide intention they have subdivided the open space and sold the plots, which is impermissible. As per G.O.Ms.No.114, MA, dated 14.03.2006, though the layout owners have not handed over the roads and open space, they are deemed to be handed over, if the layout was approved under Section 185 (3) of the A.P. Municipalities Act 1965 (for short, ‘the Act’). The layout owners have sold away the remaining 35 plots by showing 10% open space as recreational zone. The layout owners have sold away the remaining plots, without fulfilling the layout conditions. The respondent has provided infrastructure facilities like roads, water supply, electricity etc., for the larger public interest. 4. Learned counsel for the petitioner contended that no notice was given to the petitioner, who is one of the members of joint family, who applied for lay out; that the land in question fell to the share of the petitioner in the family partition, that as the respondent –Corporation is trying to interfere with his possession, he may be given an opportunity; that the conditions of lay out have not been applied and therefore, the question of surrendering Ac 0.38 cents of land to the respondent- Corporation does not arise. 5. On the other hand, learned Standing Counsel for the respondent–Corporation contended that the lay out has been approved and after approving the layout, the owners sold away the plots to several persons with infrastructure facilities like roads, water supply and drainage for larger public interest; that the land vests with the Municipality under Sub Section 3 of Section 185 of the Act and hence, he prays to dismiss the Writ Petition. 6. The petitioner seems to be one of the members of the joint family. He applied for permission for sanction of lay out in the year 1992. The Director of Town and Country Planning vide letter, dated 11.09.1992, issued a final Layout in L.P.No.76 of 1992 by making provision for 39 plots with open space of 10% for public purpose subject to condition that the roads shall be formed within two months, failing which the Municipal Commissioner shall take action to cancel the layout duly publishing in the News Papers. Thereafter, the Municipal Engineer directed the applicants to pay Rs.1,88,440/- towards development charges. The petitioner has not paid the same. The respondent addressed a letter, dated 06.05.1997, to the Secretary, Anantapur Co-operative town Bank Ltd, requesting to send fresh Bank guarantee for Rs.50,000/- as earlier Bank Guarantee was invalid. The layout owners intentionally issued a fake bank guarantee and not complied with the conditions. As per G.O.Ms.No.114, M.A., dated 14.03.2006, all roads and open space such as parks and playgrounds earmarked in the layout which is approved under Sub Section 3 of Section 185 of the Act, shall automatically vests with the Municipal Corporation free from the encumbrances. There is a family partition among the members of the family and that the land of Ac.0-038 cents fell to the share of the petitioner cannot be accepted because in view of Sub Section 3 of Section 185 of the Act, this land automatically vests with Municipality. Therefore, the petitioner has not come to the Court with clean hands and hence, he is not entitled for the relief claimed in the Writ Petition and the Writ Petition is devoid of merit and is liable to be dismissed. 7. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _______________ K.C.BHANU, J DECEMBER 19, 2011. YVL THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.11482 OF 2011 19.12.2011 YVL