IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 26400 of 2007 Between: Yendamuri Kumar S/o.Sri Veerabadra Rao, R/o.Kakinada, East godavari District ..... PETITIONER AND 1. The Municipal Corporation of Kakinada, rep.by its Commissioner, Kakinada, East Godavari District 2. The Town planning officer, Municipal Corporation of Kakinada, Kakinada, East Godavari District 3. Sri Madduri Suryanarayana S/o.Late Madduri Venkata Ratnam, R/o.Godarigunta, Kakinada, East Godavari District .....RESPONDENTS 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 especially one in the nature of writ of mandamus declaring the action of the 1st and 2nd respondents in processing the layout application of 3rd respondent in respect of land in Sy.No.53/1 and 43/2 of an extent of Ac.4.50 cents and Ac.2.29 cents respectively Ac.6.79 cents situated at Suryaraopet, kakinada Mandal, East Godavari District as illegal, and arbitrary, and consequently direct the 1st and 2nd respondents not to finalise the layout application of the 3rd respondent in respect of the said property. Counsel for the Petitioner:MR.P.SRI RAGHU RAM Counsel for the Respondent No.: MR.S.NAGESWARA REDDY The Court made the following : THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 26400 of 2007 ORAL ORDER : This writ petition has been instituted seeking a writ of Mandamus declaring the action of the respondents 1 and 2 in processing the application submitted by the 3rd respondent for grant of a lay out of land situated in Sy. No.53/1 and 43/2 of an extent of Ac.4.50 cts and Ac.2.29 cents respectively totaling to Ac.2.69 cts situate at Suryaraopet, Kakinada Mandal, East Godavari District as illegal and to consequently direct the respondents 1 and 2 not to finalise the lay out application of the 3rd respondent. The petitioner has asserted that he and his deceased uncle by name Sri Buchi Reddy have both entered into agreements of sale in respect of certain lands with Sri Madduri Venkataratnam on 29.6.1981 and 16.6.1982 and that since certain disputes cropped up, civil suit bearing OS No.32 of 1988 in respect of the agreement dated 29.6.1981 and civil suit O.S.No. 160 of 1987 in respect of agreement of sale dated 16.6.1982 soliciting specific performance of such agreement of sale have also been filed. Further, it is also asserted that the lands covered by the aforementioned civil suits is also the subject matter for consideration in appeal bearing A.S.No. 2404 of 1987 on the file of this Court, which appeal is still pending. It is further asserted that by an order passed on 26.4.2006 in ASMP No.876 of 2006 this Court directed both parties to maintain status quo obtaining as on that date with respect to the petition schedule property till further orders. Contrary to these directions issued by this Court and contrary to the agreements of sale entered into by Sri Madduri Venkataratnam who is none other than the father of the 3rd respondent herein, the 3rd respondent approached the 1st respondent Municipal Corporation for grant of lay out permission for land situated in Sy. Nos. 53/1 and 43/2 totalling to an extent of Ac.6.79 cts. As the petitioner has come to know of the collusion between the respondents 1 and 2 and the 3rd respondent, they have put the 1st respondent on notice on 7.12.2007 and inspite of the same, the 1st respondent Municipal Corporation has been proceeding further and releasing the final lay out. Learned counsel for the petitioner would submit that grant of lay out permission is regulated by statutory provisions and without in any manner ascertaining the true right, title and interest of the 3rd respondent on the land in question and for totally extraneous reasons and considerations, the respondents 1 and 2 in collusion with the 3rd respondent have resorted to sanction of the lay out so as to defeat the claims of the petitioner herein. The attempt of the respondents is to see to it that third party interests will creep in as the 3rd respondent would be selling all the plots in the lay out and thus make the possibility of a decree for specific performance being passed by courts, neutralised. It’s an attempt to frustrate the interests of the petitioner, if not a tendency to over reach and short circuit the process of courts. In this background, the writ petition with the prayer as spelt out supra has been instituted. The 3rd respondent herein who has contested this writ petition has filed a detailed counter affidavit in the matter. He has pointed out that he was the eldest of two sons born through the first wife of Sri Madduri Venkatratnam and that his father was also blessed with another son by name Sri Krishna Paramatma through his second wife and that he had instituted a civil suit O.S. No. 268 of 1971 on the file of the Subordinate Judge Court, Kakinada, against his father, his step mother and the other remaining two sons of his father, seeking partition of all the family properties described in plaint `A’ schedule into four equal shares and for allotment of one such share to him. He has also pointed out that plaint `A’ schedule of the aforementioned civil suit O.S.No.268 of 1971 comprised of five different items of land totaling to an extent of more than 31 acres situate in Suryaraopet, of Kakinada. He has also asserted that though the suit was initially contested, but, however, upon intervention of elders, the said suit has been compromised and that a decree has been passed on 3.12.1971 in terms of the Memorandum of Compromise settled between the parties. The 3rd respondent herein has been accorded 1/4th share out of the total extent of land described in plaint `A’ schedule. The petitioner has also pointed out that he has taken out execution proceedings for securing the division of the properties comprising of plaint `A’ schedule of O.S.No. 268 of 1971 and the Commissioner appointed by the Court divided the land of an extent of Ac.1.26 cts out of Ac.6.12 cts situate in T.S.No.52/1C and that the Commissioner separated this extent of Ac.1.26 cts of land from the balance land prepared a plan for the said land and allotted the said Ac.1.26 cts in favour of the 3rd respondent and also delivered possession thereof on 25.6.1986. The 3rd respondent therefore has asserted that he became the exclusive and absolute owner of land of an extent of Ac.1.26 cts situate in T.S.No.52/1C and he was in exclusive possession and enjoyment thereof. He therefore pointed out that the civil suits which have been filed by the writ petitioner against his deceased father seeking specific performance of the agreements of sale said to have been executed by his late father are entirely related to different sets of properties with which he is not concerned. The 3rd respondent has also pointed out that his step brother has also instituted another civil suit OS No. 198 of 1979 on the file of the Senior Civil Judge Court, Kakinada, seeking partition of the lands described in `A’ schedule attached thereto into three equal shares and for allotment of one such share to him. The 3rd respondent has pointed out that since he has already been separated from the joint family, his step brother has not impleaded him as a party defendant to the civil suit OS No. 198 of 1979 and he has also not included Ac.1.26 cts situate in T.S.No. 52/1C in the plaint `A’ schedule items of properties sought for partition. In view of the fact that he has already been separated by division, the plaintiff in OS No. 198 of 1979 has only solicited the properties mentioned in plaint `A’ schedule to be divided into three equal shares and for allotment of one such share to himself, another share to his brother and the remaining 1/3rd share to their father. Thus, the 3rd respondent would contend that after the decree is passed in OS No. 268 of 1979 as early as on 3.12.1971 his late father Sri Madduri Venakatratnam never treated or considered the properties allotted separately in favour of this respondent as belonging to the joint family or ever dealt with them as an owner thereof. Therefore, the transaction entered into by Sri Madduri Venkatratnam, his deceased father with all others post 1971 are only with regard to and with reference to the properties which did not contain land that fell to his share. Therefore, the 3rd respondent has asserted that he applied to the Kakinada Municipality for sanction of lay out in respect of land of an extent of Ac.1.26 cts situate in TS No. 52/1C, which land is decreed and delivered to him in furtherance of OS No. 268 of 1971. In this context, it will be appropriate to notice how the 3rd respondent dealt with this issue in the counter affidavit filed in this writ petition. “c. I submit that I applied to Kakinada Municipality for a layout in respect of my aforesaid Ac.1.26 cents in T.S. No. 52/1C decreed and delivered to me in OS 268/1971. As per the conditions imposed by the Municipality, I executed two gift deeds both dt. 30.12.2005 for laying roads and for providing open space. I also paid an amount of Rs.3,01,700/- (Rupees Three lakhs one thousand and seven hundred only) for development of water supply and laying roads by Demand Draft dt.15.12.2006 and thereafter, the Municipality by Resolution dt. 12.12.2007 in C.R.No.140 released the sanction. 4…xxxxxxxxx I submit that O.S. No.32/1988 on the file of the Subordinate Judge’s Court, Kakinada, was filed on the basis of an agreement dt. 29.6.1981 in respect of Ac. 4.50 cents in T.S.No. 52/1 executed by my father, late Madduri Venkataratnam. I submit that the said property has nothing to do with and is not the same as the property for which I applied for a layout which was approved and released. I submit that the subject matter of O.S.No.32/1988 has nothing to do with T.S.No.52/1C…..” Thus, the 3rd respondent has laid bare that the claim of the petitioner if at all is true and correct is with reference to and with regard to other properties which may incidentally be situate in T.S.No.52/1C of Suryaraopet, Kakinada, which may have also owned by the deceased father of the 3rd respondent viz., Sri Madduri Venkataratnam. The petitioner or for that matter his uncle Buchi Reddy have got nothing to do with the land of an extent of Ac.1.26 cts situate in T.S.No.52/1C of Suryaraopet, Kakinada, for which the 3rd respondent herein solicited the sanction of lay out and the lay out has also been accorded by the 1st respondent Municipal Corporation on 12.12.2007. Therefore, the 3rd respondent is entitled to exclusively deal with that portion of the land viz., Ac.1.26 cts situate in Sy.No.52/1C, Suryaraopet, Kakinada, which fell to his 1/4th share in furtherance of the decree passed by the Subordinate Court, Kakinada in partition suit OS No. 268 of 1971. The petitioner has no right of any manner, either through the agreements of sale entered into with the father of the 3rd respondent, or otherwise to lay any claim for this Ac.1.26 cts of land. In view of the above, there is no merit in the writ petition and it is accordingly dismissed with costs of Rs.1,000/- (Rupees One Thousand only) payable to the 3rd respondent. ----------------------------------------------------- JUSTICE NOOTY RAMAMOHANA RAO Knk Dt : 15.04.2008 ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK}