IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 22607 of 2007 Between: 1 S. Nizam Sultan, S/o. S. Sultan Mahamood, r/o. 50/760-113-5, Gayathri Estates, Kurnool, Kurnool District. 2 Smt. Rakhia Bhanu, W/o. S. Nizam Sultan, r/o. 50/760-113-5, Gayathri Estates, Kurnool, Kurnool District. ..... PETITIONER(S) AND 1 The Government of Andhra Pradesh, Rep by its Principal Secretary, Municipal Administration & Urban Development Dept., Secretariat, Hyderabad. 2 Kurnool Municipal Corporation, Kurnool, Kurnool 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 to issue a writ of mandamus or any other appropriate writ, order or direction, declaring the action of the 2nd respondent herein in not taking further action in terms of the Memo No. 3344/H1/2000-20 MA, dated 12-4-2004 issued by the 1st respondent herein in the name of seeking clariﬁcation from the district collector, Kurnool as sought in Roc No. 4270/99-G1, dated 1-12-2004 as illegal, arbitrary, unreasonable and Art. 14 of the constitution of India and consequently direct the Memo No. 33-44/H1/2000-20 MA, dated 12-4-2004 issued by the 1st Respondent herein so as to enable the 1st Respondent to take action for grant of permission for conversion of the land from Industrial to residential use and to pass such other order or orders as may deem ﬁt and proper in the circumstances of the case Counsel for the Petitioner: MR.A.V.SESHA SAI Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : O R D E R: This writ petition has been ﬁled by the petitioners who are two in number assailing the inaction of the Commissioner, Kurnool Municipal Corporation-2nd respondent on the memo No.3344/H1/2000-20 M.A., dated 12.4.2004 issued by 1st respondent-Government of Andhra Pradesh represented by its Principal Secretary, Municipal Administration and Urban Development Department, Secretariat, Hyderabad. 1st petitioner is owner and possessor of 1,045.94 square yards in Survey Nos.747/1A3 and 755/B1 of Kallur, Kurnool having purchased the same under a registered sale deed dated 21.1.2004 from Haﬁz Basheer Ahmed and others. 2nd petitioner is owner and possessor of 186.11 square yards situated in S.Nos.747/IA3 and 755/B1 of Kallur, Kurnool having purchased the same under a registered sale deed dated 21.1.2004 from Haﬁz Basheer Ahmed and others. Haﬁz Basheer Ahmed and his brother Mohd. Iqbal made an application to 2nd respondent on 15.5.1999 for change of land use from industrial to residential use. Their application was placed before the Municipal Council which passed resolution No.120, dated 13.7.1999 according permission for conversion and the same was conﬁrmed by resolution No.121, dated 31.7.1999. The 2nd respondent sent the resolution to the Government for necessary orders of conversion under a letter-dated 16.2.2000. The 1st respondent by memo dated 6.10.2001 requested 2nd respondent to furnish the council resolution for change of land use in S.No.746/B1.1.747 and 755-B of Kurnool to an extent of 1020 square meters from heavy industrial use to residential use. In response to the same 2nd respondent sent necessary information by letter dated 22.4.2002 to 1st respondent. 1st respondent agreed in principle for change of land use and requested 2nd respondent to furnish draft variation and schedule of boundries to process the case further under memo-dated 12.4.2004. The 2nd respondent instead of sending the necessary information called for by1st respondent sought clariﬁcation from the District Collector, Kurnool as to whether change of land proposal in the name of the applicant can be recommended to the Government. According to the petitioners, such a clariﬁcation from the District Collector is not required since the Municipal Council passed resolution Nos.120 and 121 according permission for conversion of land use. Therefore, the action of 2nd respondent in addressing a letter in Rc. No.4270/99-G1, dated 1.12.2004 instead of furnishing necessary information as called for by 1st respondent by memo No.3344/H1/2000-20 MA, dated 12.4.2004 is assailed in this writ petition. Rule nisi came to be issued on 15.11.2007. 2nd respondent ﬁled counter aﬃdavit. It is stated in the counter aﬃdavit that the District Collector, Kurnool in his letter dated 6.3.2004 informed about the appointment of Official Liquidator in C.A.No.965 of 2002 and also a request made by Oﬃcial Liquidator to hand over possession of the land belonging to M/s Thungabhadra Industries Limited. It is further stated in the counter aﬃdavit that the Assistant Director, Survey and Land Records, Kurnool has reiterated that the lands pertaining to M/s Thungabhadra Industries Limited were illegally purchased without verifying the Encumberance Certiﬁcate from the Sub-Registrar, Kurnool. Paras 4 to 7 of the counter affidavit needs to be noted and they are thus: “ 4. It is further submitted that the District Collector, Kurnool has requested to take action against the encroachers i.e. M/s Gayatri Estates and Vishnu Priya Apartments who have illegally purchased the lands belonging to M/s Thungabhadra Industries Limited, Kurnool which are under the hypothecation to State Bank of India, Kurnool for resuming the lands to Government duly following procedure, so as to handover all the above lands to the Oﬃcial Liquidator, High Court, Hyderabad as directed by the Hon’ble High Court, Hyderabad. 5. It is submitted that in view of the above the respondent herein submitted a letter to the District Collector, Kurnool duly informing the facts on the proposals made by the applicants i.e. Mahamood Iqbal and Basheer Ahmed, S/o Late Haji Gulam Hussain and the memo issued by the government of Andhra Pradesh, Hyderabad to clarify whether the change of land use proposals in the name of the applicants can be recommended to Government or not so as to send the same to the Government. But till today no reply has been received from the District Collector, Kurnool so as to process the further action in this matter. 6. It is submitted that the averments made in paragraphs 4 and 5 of the writ affidavit are true. 7. In reply to the averments made in para 6 of the aﬃdavit it is submitted that it is true that the Government issued Memo No.3344/H1/2000-20, MA dated 12.4.2004 agreeing in principle for change of land use, where as after sending the proposals of change of land use from industrial use to residential use to the Government in the year 1999, the District Collector, Kurnool in his letter Rc.No.E4/391/95, dated 6.3.2004 informed to take action against the illegal purchaser of lands in Sy.Nos.746/B1, 747/A1, 747/2B, 747/2A1, 747/2A3, 754/2A, 755/A/2B, 755/A1, 755/2A and 560/2A belonging to M/s Thungabhadra Industries Ltd., which were under the hypothecation of State Bank of India, Kurnool since the District Collector has ordered to take action against the illegal purchaser and the petitioners’ land i.e. S.No.746/B1, 747 & 755 falling in the M/s Thungabhadra Industries Ltd., Kurnool the said petitioners’ proposals were sent to the District Collector, Kurnool for clariﬁcation so as to take further action but no reply was received from the District Collector, Kurnool till today.” Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for 2nd respondent- Corporation. Learned counsel appearing for the petitioners submits that 2nd respondent Corporation already examined the proposal of vendors of the petitioners for conversion of land use and forwarded the same 1st respondent and therefore 2nd respondent is under an obligation to furnish necessary information called for by 1st respondent under memo dated 12.4.2004 and the action of the 2nd respondent in not furnishing the particulars as sought for in the memo is arbitrary and illegal and therefore a writ of mandamus is required to be issued against 2nd respondent to furnish necessary particulars called for by 1st respondent under memo dated 12.4.2004. Learned counsel appearing for the 2nd respondent submits that the land in question belongs to M/s Thungabhadra Industries Limited which is under liquidation and in which case 2nd respondent is justiﬁed in asking for clariﬁcation from the District Collector, Kurnool. In the counter aﬃdavit ﬁled on behalf of 2 nd respondent it is speciﬁcally stated that as per the report of the Assistant Director of Survey and Land Records, Kurnool the land in question pertains to M/s Thungabhadra Industries Limited, which is under liquidation. It is further stated in the counter aﬃdavit that Gayatri Estates and Vishnu Priya Apartments, Kurnool purchased the land owned by M/s Thungabhadra Industries Limited without verifying the Encumberance Certiﬁcate thereon. It appears M/s Thungabhdara Industries Limited created Encumberance over the land in dispute in favour of State Bank of India, Kurnool. The meo dated 12.4.2004 reads as under: “ The attention of the Director of Town and Country Planning, Hyderabad is invited to the references cited. He is informed that government after careful examination of the proposal have agreed in principle for change of land use in S.No.746/B1, 1 part, 747 & 755, B of Kallur (v), Kurnool Municipal corporation limits to an extent of 1020 square meters from industrial use zone to residential use zone. He is therefore requested to furnish draft variation and schedule of boundaries to process the case further. He is also requested to advice concerned to collect the development/conversion charges and report.” The 2nd respondent after receipt of memo addressed a letter to District Collector, Kurnool vide letter dated 1.12.2004 seeking clariﬁcation as to whether change of land use proposals can be recommended to the Government. The text of the letter addressed to the District Collector, Kurnool reads as here under: “ In pursuance of Government memo cited, I am to submit that Sri.Md.Iqbal and Basheer Ahmed, Kurnool applied for change of land use in S.No.746/B,1 Part, 747 and 755 B, Kallur (V) to an extent of 1020 square meters from industrial use to residential use, the Government in memo requested to furnish draft variation and schedule of boundaries to process the case further. In this connection, I am to submit that the Collector, Kurnool in the reference ﬁrst cited informed that the Lands belonging to M/s Tungabhadra Industries Limited, Kurnool in S.No.746/B, 747 and 755 B of Kallur (V) is in liquidation and hypothecated to S.B.I., Kurnool. Hence, I request to kindly clarify whether the change of land use proposals in the name of applicants can be recommended to Government or not at an early date, so as to send the same to the Government.” There appears to be serious dispute with regard to the ownership of the land claimed by the petitioners. The correspondence between R1 and R2 indicates that M/s Tunghabhadra Industries Limited, which is under liquidation, is the owner and possessor of lands in S.No.746/B,1 Part, 747 and 755 B, Kallur (V) to an extent of 1020 square meters. In the given facts and circumstances of the case, the action of the 2nd respondent in addressing a letter to the District Collector, Kurnool seeking clariﬁcation as to change of use of land is justified. In that view of the matter, this writ petition is devoid of merits and the same is dismissed. No costs. 21st October, 2008. (B.Seshasayana Reddy,J) Tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.22607 OF 2007 21st October, 2008.