IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY NINETH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S. No.653 of 2001 Between: State Bank of Hyderabad Staff Cooperative Housing Society Ltd., Vijayawada .. Appellant AND Vijayawada Municipal Corporation rep. by its Commissioner, Vijayawada and another .. Respondents JUDGMENT: An appeal against the judgment and decree in O.S. No.318 of 1993 on the file of the II Additional Senior Civil Judge’s Court, Vijayawada, dated 28-10-2000 by the aggrieved plaintiff. The parties are referred to herein as they are arrayed in the suit. The plaintiff society claiming to be a society registered under Andhra Pradesh Co-operative Societies Act filed the suit through its Secretary claiming that it acquired Ac.2-84 cents of land in R.S. No.134/2 of Patamata, Vijayawada and got a layout sanctioned by the Director of Town Planning. L.P. No.93/72 covering Ac.28-4 cents (2.84 cents) indicated plot Nos.29, 30 to 33 to have been left out as open space for a park or play ground or recreation as was mandatory. A similar open space was left out in the vicinity in the layout of RTC colony on the South. The proposed road in RTC colony was accordingly shifted making both the open spaces a rectangular block. If the Municipal Corporation is not utilizing the land for the benefit of the members of the plaintiff society, it has to be delivered back to the plaintiff and if it wishes to assign, market rate has to be paid to the plaintiff. One P. Kutumba Rao, a railway contractor, and others started attempts to occupy the open spaces and level the same, on which a representation was made by the society to the Municipal Corporation against the attempts by the persons claiming to be assignees of the Municipal Corporation. The plaintiff hypothecated the entire land to the State Bank of Hyderabad in 1974 for house loans to its members and the 1st defendant has no right to assign the suit land to anybody. The property is worth more than Rs.5.00 lakhs and the plaintiff got a notice issued under Section 685 of the Municipal Corporation Act to cancel the assignment. The intervention of the concerned Minister is of no avail and Vijayawada Urban Development Authority resolved in 1992 that no part of the open spaces of layout 93/72 should be assigned and that the assignment granted to P. Kutumba Rao is not in R.S. No.133. Defendants 2 to 4 filed caveats claiming rights in the property and the plaintiff again issued notices demanding that any allotment of plot Nos.29 to 33 for residential purposes should only be through the plaintiff. The verification by the plaintiff disclosed the absence of any registered sale deeds in favour of defendants 2 to 4 and there is a pump shed and residential shed for the pump operator in 576 square yards in plot No.29 and part of plot No.30 under the plaintiff, which cannot be disturbed by the Municipal Corporation and from the remaining 958.56 square yards shown as CDEF in the plaint plan, defendants 2 to 4 have to be evicted, while the 1st defendant should be restrained by way of permanent injunction. Hence, the suit for declaration of any assignment made by the 1st defendant in respect of 958.56 square yards to be illegal and for consequential reliefs of recovery of possession by evicting defendants 2 to 4, for future mesne profits from defendants 2 to 4, for a permanent injunction against defendants 1 to 4 from interfering with the possession of the plaintiff and for costs. The 1st defendant Municipal Corporation resisted the suit contending that the Director of Town Planning approved the layout in L.P. No.93/72 for R.S. No.134/B of Patamata covering Ac.2-84 cents providing 28 residential plots. 1375 square yards were earmarked as open space, which is to be acquired by the Municipality from the plaintiff under Rule 10(3) of the Layout Rules to form plots 29 to 33 under the said Rule. The percent of the layout area has to be provided as public open space for use as park or play ground or school, etc., but not for the benefit of the members of the layout applicants. The Municipal council can dispose of such open space if the total layout is less than one hectare and the open space is small and the disposal at the rate fixed by the Deputy Collector is to acquire a compact area by the Municipality with such sale proceeds. The Director of Town Planning approved L.P. No.179/78 in the same area, which is developed as RTC colony. The open space left in the RTC colony is to the South of the plaintiff’s layout. Some other layouts were approved by the Director of Town Planning in L.P. Nos.58/79, 22/74, etc., for the area in the vicinity and the plaintiff society did not develop the layout area as per the approved layout. It did not acquire the land to form plots 30 to 33 and did not form a 10 feet road in between the plots. Subsequently, a comprehensive layout was approved by Vijayawada-Guntur-Tenali Urban Development Authority in L.P. No.22/87 revising the original layout and combining the layouts in the vicinity. The revised layout provided a compact open space for the benefit of public including some part of the land in the layout of the plaintiff society. The plaintiff society alone has no right on this open space, which shall be deemed to be vested with the Municipal Corporation. The Municipal Corporation transferred 1597 square yards of land in R.S. No.133 and R.S. No.134/B of Patamata to Paladugu Kutumba Rao in exchange of 1600 square yards of land taken by the Corporation from Kutumba Rao in R.S. No.149 of Patamata for formation of 80 feet wide master plan road in the interests of public with the approval of the Government in G.O. Ms. No.222 M.A., dated 02-05-1989 and G.O. Ms. No.695 M.A., dated 07-05-1992. The transfer was under a registered deed, dated 14-12-1989 with an amending document, dated 01-10-1992. While the Municipal Corporation formed a road in the land taken from Kutumba Rao in R.S. No.149, Kutumba Rao applied for approval for a layout for subdivision of the land transferred to him by providing four plots, which was approved by the Urban Development Authority. Defendants 2 to 4 purchased plots from Kutumba Rao under registered sale deeds, while in the remaining 507 square yards, the Municipal Corporation is maintaining water pumping station for public purpose. Defendants 2 to 4 applied for permission for construction of buildings in the three plots. On the representation of the plaintiff, the Corporation informed the Government about the situation and the conversion of part of open space into four plots was approved by the Urban Development Authority in L.P. No.8/92. The Corporation permitted defendants 2 to 4 to construct the buildings in building plan Nos.1336, 1337 and 1339 of 1992. The transfer of the site to Kutumba Rao was legal in the interests of the public and the suit is not maintainable without the mandatory notice under Section 685 of the Hyderabad Municipal Corporation Act. Hence, the Corporation sought for dismissal of the suit with exemplary costs. Defendants 2 to 4 also contested the suit contending that the allegations of the plaintiff are false, that the Court fee paid is not correct and the suit has no cause of action. Defendants 2 to 4 respectively purchased 433.44 square yards each out of 1600 square yards in R.S. Nos.133/P and 134/B of Patamata under respective registered sale deeds, dated 13-08-1990 from Paladugu Kutumba Rao at Rs.1,14,142/- each. Defendants 2 to 4 also filed caveats into Court and got their plans for construction approved and are paying taxes to the Municipal Corporation. They obtained water and electricity facilities for their respective plots and they are genuine purchasers. The plot of the 3rd defendant is in RTC colony, while half of the plot of the 2nd defendant also fell in RTC colony. Hence, defendants 2 to 4 sought for dismissal of the suit with exemplary costs. On such pleadings, the following issues were settled for trial and determination o the suit. 1. Whether the plaintiff is entitled to the relief of declaration as prayed for ? 2. Whether the plaintiff is entitled to the relief of possession of plaint schedule property by the ejectment of defendants 2 to 4 from the same ? 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? 4. Whether the 1st defendant has right to transfer the schedule property to Kutumba Rao ? 5. Whether the defendants 2 to 4 are genuine purchasers of their respective shares and they are the rightful owners of the same ? 6. Whether the suit is bad for non-joinder of necessary parties? 7. To what relief ? During the trial, P.W.1 and D.Ws.1 to 5 were examined and Exs.A.1 to A.16 and B.1 to B.18 were marked. The trial Court rendered the impugned judgment firstly referring to the admitted facts and noting Ex.A.1 copy of bye-laws of the plaintiff showing registration of the plaintiff as a society, Ex.A.2 copy of sale deed, dated 30-01-1974 for purchase of Ac.2- 84 cents by the plaintiff, Ex.A.3 copy of the layout for L.P. No.93/72, Ex.B.1 layout plan, Ex.A.4 conditions of layout and Ex.A.5 and Ex.B.2 copies of comprehensive layout in L.P. No.22/87, which are not disputed. The exchange of land of 1600 square yards in R.S. No.149 and 1597 square yards from out of the open space in the subject layouts, was also stated to be admitted. The trial Court referred to the exchange deed and the Government orders in this regard as well as copies of resolutions of the Municipal Corporation leading to the Government Orders. The trial Court also referred to the evidence of the Town Planning Surveyor as D.W.1, referring to Ex.B.3 layout in L.P. No.8/92, Ex.B.4 site plan and grant of permission to defendants 2 to 4 for construction of houses in their respective sites. D.Ws.2 to 5 were stated to have deposed similarly. The trial Court also referred to Ex.A.6 endorsement requiring the plaintiff to hand over the roads and open spaces including plots 29 and 30 and the representations and notices from the plaintiff in this regard. The trial Court further noted the claim of the then Secretary of the plaintiff as P.W.1 about the disentitlement of the Corporation without any gift from the plaintiff, but observed that as seen from Ex.A.4 conditions and Rule 10 of the Layout Rules, plots 29 to 33 left as open space for public purpose vested in the 1st defendant Municipal Corporation on the inclusion of Patamata Gram Panchayat in the Corporation. After referring to the precedents cited by either side, the trial Court noted that the exchange by the Municipal Corporation with the approval of the Government was within its power under Section 148 of the governing statute and the consequent transfer in favour of Paladugu Kutumba Rao and the genuine purchase of the respective plots by defendants 2 to 4 from him cannot be questioned by the plaintiff, which cannot claim any rights over the open space vested with the Municipal Corporation after the approval and sanction of the layout. Consequently, the trial Court concluded that the plaintiff is not entitled to any relief including in respect of the space occupied by the water pumping shed and the residential shed of the watchman. While holding that Paladugu Kutumba Rao is not a proper or necessary party, the trial Court still dismissed the suit without costs in view of its other findings. The plaintiff filed the present appeal contending that in the absence of any registered gift deed or valid conveyance, the common areas in the layout cannot vest absolutely in the Municipal Corporation and even if so vested, it is only for limited purpose of holding the said common areas as a custodian for the benefit of all the plot owners/members of the society in the layout. The Government or the Municipal Corporation have no power to issue the orders or make the exchange in question and the trial Court could not have at least refused to grant permanent injunction in respect of 576 square yards in the actual physical possession of the society. The appellant, therefore, desired the impugned judgment and decree to be reversed. Sri B. Venkata Ramarao, learned counsel for the appellant/plaintiff and Sri A. Ramalinageswara Ro and Smt. G. Jhansi, learned counsel for the respondents are heard at length and the learned counsel for both sides also referred to various precedents, which will be referred to in due course. The points that arise for consideration herein are: 1. Whether the open space earmarked by the layout for common purposes is vested in the Municipal Corporation only for the management and supervision for the purposes for which the open space was earmarked by the layout or is so vested with absolute title, which it can convey to third parties ? 2. Whether the suit as framed is not maintainable ? 3. Whether the plaintiff is entitled to the suit reliefs ? 4. To what result ? Point No.1: The facts are not in dispute. The plaintiff is a registered society under Andhra Pradesh Co-operative Societies Act as seen from Ex.A.1 and it acquired Ac.2-84 cents in R.S. No.134/2 of Patamata under the original of Ex.A.2 for the benefit of the members of the society. The plaintiff obtained approved layout as per Ex.A.3 plan and Ex.A.4 conditions. Plot Nos.29 to 33 of the layout plan were left for community purposes and similar was the approved layout of RTC colony Ex.A.5. It is true that the Municipal Corporation demanded the plaintiff to execute a registered gift deed and hand over the roads and open spaces including plots 29 and 30 as per Ex.A.6, dated 04-06-1983, no such document was subsequently executed or obtained. P.W.1, the then Secretary of the plaintiff society between 1974 and 1977, stated about plot No.29 and part of plot No.30 being used by the plaintiff society for water pump shed and watchman shed. P.W.1 admitted that the Municipal Corporation has got a right to sell the area, if it is less than one hectare at the market rate fixed by the Sub-Collector and that Ex.A.5 L.P. No.22/87 does not disclose the details of the open site of the plaintiff covered under it. While P.W.1 was unaware whether defendants 2 and 3 obtained approved plans from the Corporation, he admitted the zinc sheet roof sheds in their plots to be having supply of electricity and water tap connections. P.W.1 did not know whether defendants 2 to 4 were paying Municipal taxes for their respective plots, separated by fencing and more importantly he admitted that the plot of the 3rd defendant might include RTC colony land also, which, if true, will disentitle the plaintiff from claiming possession of the entire plot in the possession of the 3rd defendant. Defendants 2 to 4 examined as D.Ws.2 to 4 respectively spoke about their respective purchases under registered sale deeds from Paladugu Kutumba Rao and enjoying their respective plots. D.W.5 is the husband of the 3rd defendant, who claimed that they verified the title before the purchases and that they got the plots surveyed, measured and delivered to them. While claiming that he looked after the transactions on behalf of all the three purchasers, he stated that he can examine his vendor and he reiterated the claim that the plot of the 3rd defendant and part of the plot of the 2nd defendant are located in the open space left by the RTC colony. The Town Planning Supervisor of the 1st defendant Municipal Corporation as D.W.1 claimed that if the open space is in small bits and less than one acre and if the layout is less than one hectare, the open space can be disposed of by the Municipality by public auction at the market price fixed by the Collector. He also claimed that the plaintiff did not issue any notice under Section 685 of the Municipalities Act prior to the suit. D.W.1 stated that 1375 square yards open space had to be left under Ex.B.1 to form plots 29 to 33 for public purpose like park, play ground etc., which can be acquired by the Municipality under Rule 10 (3) of the Layout Rules, 1970. He further claimed that Ex.B.2 is the comprehensive layout approved by the Urban Development Authority subsequently including the colony of the plaintiff and RTC colony and the open spaces in the revised layout are also exclusively for public purposes. D.W.1 further claimed that after obtaining the approval from the Government, the Corporation acquired 1600 square yards in exchange of 1590 square yards of open space in the plaintiff society and RTC colony layout. Under G.O. Ms. No.222 and G.O. Ms. No.695, the site allotted to Paladugu Kutumba Rao was the subject of the Layout Plan No.8/92 consisting of four plots under Ex.B.3 and defendants 2 to 4 were stated to have been permitted by the Municipal Corporation for construction of houses. He stated that the pumping station and watchman shed are to the South of plot No.28 and admitted that the plaintiff did not execute any document in favour of the Corporation in respect of the open space. He admitted that the Corporation has no power to use the land for any other purpose except for the purpose noted in the layout and has no right to alienate. He clearly admitted that it is only for utilization of the land that the Corporation is empowered. Ex.B.5 G.O. Ms. No.222 M.A., dated 02-05-1989 referred to the letter from the Commissioner of the Corporation about accepting the proposal in public interest to take over 1600 square yards in R.S. No.149 of Patamata from Paladugu Kutumba Rao in exchange for about 1600 square yards in L.P. No.316/78 belonging to the Municipal Corporation. To the initial response of the Government to take action under the Land Acquisition Act, the Corporation again requested for reconsideration. The Government after consideration permitted the exchange as a special case. In G.O. Ms. No.695 M.A., dated 07-05-1992 in consequence of G.O. Ms. No.222 M.A., dated 02-05-1989 and in pursuance of the request of Sri Paladugu Kutumba Rao to dereserve the layout open space and as per the request of the Vice Chairman, Vijayawada- Guntur-Tenali Urban Development Authority and the resolution of Vijayawada Municipal Corporation, the Government reiterated the permission for exchange duly converting the exchange open space of 1600 square yards in layout Nos.179/178 and 22/87 (revised layout No.8/92) into house plots in lieu of equivalent site of 1600 square yards of Paladugu Kutumba Rao in survey No.149 of Patamata. Thus, while the acquisition of 1600 square yards in R.S. No.149 of Patamata from Paladugu Kutumba Rao for road formation in public interest and transfer of 1597 square yards in R.S. Nos.133 part and 134 B by way of a registered exchange deed, dated 14-12-1989 by Municipal Corporation of Vijayawada in favour of Paladugu Kutumba Rao may be true, that the open land in the colony of the appellant so attempted to be alienated in favour of Paladugu Kutumba Rao under the exchange deed was one left for purpose of park as per the approved layout, is admitted. While it is the claim of the defendants that the land so exchanged in favour of Paladugu Kutumba Rao is partly from the open land of RTC colony and partly from the open land of the plaintiff’s colony and the evidence for the defendants before the Court was also the same, to the extent of the registered exchange deed, dated 14-12- 1989 covering any open land of the RTC colony, the same is not the subject of consideration in this appeal and could not have been the subject of consideration in the suit. The identity of the land covered by the exchange deed is not difficult to establish in the execution of any decree if the plaintiff succeeds, as identification of the plots claimed by the plaintiff as per approved layout can be unambiguously and undisputedly made on land with reference to such approved layout or even the approved layout of the RTC colony. The purchase of their respective plots by defendants 2 to 4 from Paladugu Kutumba Rao and their consequential possession and the claims of the defendants about what had been done by defendants 2 to 4 in their respective plots subsequent to their acquisition also may be true, but the entitlement of defendants 2 to 4 or Paladugu Kutumba Rao or the Municipal Corporation to do the acts they did in respect of the open land of the plaintiff society involved herein will alone determine the right of the plaintiff to seek any relief against such land, but not what defendants 1 to 4 did in respect of the land. The open space in the land of the plaintiff society left for communal purposes was claimed to be only 1375 square yards, whereas the exchange deed covered 1597 square yards. But as already stated, any relief to be granted to the plaintiff can only be in respect of the land of their society and nothing beyond. While no record relating to the Corporation taking over 1600 square yards of land from Paladugu Kutumba Rao has been filed in these proceedings, to the extent any portion of the land is being utilized by the Municipal Corporation for pump house to enable water supply to the colony of the plaintiff, all the parties obviously do not desire the same to be disturbed. The written submissions filed on behalf of defendants 2 to 4 also referred to the decisions reported in AIR 1987 SC 1109 and AIR 1983 AP 118. But the question herein is not legality of or compliance with due procedure in executing an exchange deed, but the competence of the Municipal Corporation or the Government to enter into such an exchange. The principles laid down by these two decisions, therefore, do not appear to have any bearing on the questions in issue herein. Even in the impugned judgment, the trial Court noted that admittedly plots 29 to 33 were left as open space contiguous to open space left in the RTC colony. The trial Court went by the vesting with the Municipal Corporation and approval of the Government for exchange without examining the scope and extent of vesting and the power of the Municipal Corporation or the Government to alienate, in any manner, any land vested in them for public or communal purposes. The precedential law referred to by the learned counsel on the issues involved throws light on the said question. The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust[1] laid down that the word “vest” has several meanings with reference to the context in which it is used and by long usage “vesting” ordinarily means having obtained an absolute and indefeasible right as contra distinguished from not having so obtained it. The Apex Court noted that the word “vest” is a word of variable import under different Indian Statutes. The word “vest” has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. In that case, the vesting of property in the trust was noted to be only for the purpose of executing any improvement scheme, which it has undertaken and not with a view to clothing it with complete title, and hence, it was observed that the term “vesting” has a variety of meaning which has to be gathered from the context in which it has been used. It may mean