IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE And HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 11159 of 2008 Between : Koneru Nagendra Prasad, S/o.Koneru Raja Rao, 21st Ward Yemmiganur Municipality, Kurnool District, R/o. H.No. 1- 1342, H.B.S. Colony, Yemmiganur, Kurnool District. ..... PETITIONER AND 1 The Collector and District Magistrate, Kurnool District. 2 The Joint Collector Cum Authorized Officer for Sale Yemmiganur Weavers Cooperative Production & Sale Society Limited, Yemmiganur Kurnool. 3 The Secretary, Yemmiganur Weavers Cooperative Productin & Sale Society Limited, Yemmiganur , Kurnool District. 4 The Municipal Commissioner, Yemmiganur Municipality, Yemmiganur, Kurnool District. 5 The Director of Town and Country Planning, (Municipal Administration), A.C. Guards, Hyderabad. .....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 particularly a Writ in the nature of Writ of Mandamus declaring the action of the respondents in issuing Auction cum Tender Sale Notice dated 16-05- 2008 and published in News Papers on 18-05-2008 in seeking to sale the land situated at Survey No. 432 to an extent of Ac. 0.21 cents; Sy.No. 441/3 to an extent of Ac. 0.21 cents; Sy.No. 442/3 to an extent of Ac. 0.76 cents; which is vested with the Municipality as illegal, arbitrary, un- constitutional and contrary to the various provisions of the A.P. Municipalities Act, 1965 and the rules made there under and consequentially set aside the same and direct the respondents 1,4 and 5 to protect the open space in the above survey numbers for future public purposes by making fencing. Counsel for the Petitioner :MR.C.V.BHASKAR REDDY Counsel for the Respondents : GP FOR REVENUE The Court made the following : ORDER : (Per Hon’ble Sri Justice R.Subhash Reddy) This writ petition is filed by the Councilor of Yemmiganur Municipality, as a public interest litigation, to declare the action of respondents in issuing the Auction- cum-Tender Sale Notice, dated 16.05.2008, proposing to sell certain lands belonging to the 3rd respondent-Society, in public auction. 2. Respondent No.3 is a Society registered under the Societies Registration Act. It has acquired certain lands for the purpose of dividing the same into residential plots to allot to its members. It appears from the record that the layout was taken out in the year 1947. While carving out the layout, certain pieces of lands were kept open, as per the rules framed under the Municipalities Act. 3. The 2nd respondent-Joint Collector, Kurnool, the authorized officer under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, has issued the auction-cum-tender sale notice, published on 18.05.2008 in the daily news papers, for sale of three bits of land i.e. Ac.0.21 cents in Sy.No.432, Ac.0.21 cents in Sy.No.441/3 and Ac.0.76 cents in Sy.No.442/3, on account of the default committed by the 3rd respondent-Society in payment of provident fund amount. It is the case of the petitioner that as much as the said pieces of land are shown as open spaces in the sanctioned layout, as such, they vest with the Municipality, and the same cannot be auctioned to recover the arrears of provident fund from the 3rd respondent-Society. 4. During the course of arguments, it is submitted by the learned counsel for petitioner that so far as the pieces of land covered by Survey Nos.441/3 and 442/3 are concerned, there is no material to show that the said lands were left open in the sanctioned layout. With regard to the land admeasuring Ac.0.21 cents covered by Sy.No.432, it is submitted that though earlier some letter was issued to the petitioner stating that the said piece of land is shown as open land in the sanctioned layout, but however, in the counter affidavit filed by the 4th respondent-Municipality, it is clearly stated that the open space in Survey No.432 is not earmarked as open land in the sanctioned layout. 5. In view of the counter affidavit filed by the 4th respondent-Municipality, the pieces of land, which are covered by Item Nos.1 to 3, are not the open spaces earmarked in the sanctioned layout. In that view of the matter, they continue to be the lands belonging to the 3rd respondent-Society, and as such, there cannot be any embargo for putting the said pieces of land in auction to recover the amounts of arrears of provident fund. 6. For the aforesaid reasons, we do not find any merit in this writ petition, which is accordingly dismissed. No order as to costs. _________________ ANIL R. DAVE, CJ 21st November 2008 ______________________ R. SUBHASH REDDY, J ajr