THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.17925 OF 2005 DATED: 10.8.2006 BETWEEN: The Mathrusree Cooperative House Building Society And Others … Petitioners. And Gajuwaka Municipality, Gajuwaka, Vishakapatnam and Others. … Respondents. THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.17925 OF 2005 ORDER: 1. Though the matter is appearing under interlocutory, all the counsel on record, made a request to dispose of the writ petition itself and accordingly, the writ petition is being disposed of. 2. The writ petition is filed by the petitioners for a writ of mandamus directing the Gajuwaka Municipality to release the layout approved by the Vishakapatnam Urban Development Authority within one week to enable the writ petitioners to undertake appropriate construction activities and pass such other suitable orders. 3. Originally Gajuwaka Municipality, represented by its Commissioner, is shown as R.1 and at present, an application was filed to substitute Greater Visakhapatnam Municipal Corporation, Gajuwaka as first respondent in the place of existing first respondent – Gajuwaka Municipality and the same was ordered by this Court on 26.12.2005. Thus at present Greater Visakhapatnam Municipal Corporation, Gajuwaka is substituted in the place of the first respondent – Gajuwaka Municipality. 4. Sri G.S.N.Murthy the then Commissioner of Gajuwaka Municipality was impleaded as R.2 in his personal capacity. R-3 is Visakhapatnam Urban Development Authority represented by its Vice Chairman. 5. Heard Sri Nuty Ram Mohan Rao, the counsel representing the writ petitioners, Sri Ranga Reddy, the learned Standing Counsel representing Greater Visakhapatnam Municipal Corporation, the present R-1 substituted in the place of Gajuwaka Municipality, Sri Avula, the counsel representing Sri G.S.N.Murthy, the second respondent and the then Municipal Commisssioner of Gajuwaka Municipality impleaded in personal capacity and Ms.Preethi Reddy, the counsel representing R-3, Vishakhapatnam Urban Development Authority. 6. Sri Nuty Ram Mohan Rao, the learned counsel representing the writ petitioners had taken this Court through the affidavit filed in support of the writ petition and also the respective stands taken in the counter affidavits and had vehemently commented on the total inaction on the part of Sri G.S.N.Murthy, the second respondent, in placing the matter before the Municipal Council. Certain serious allegations also had been made as against the said party respondent No.2, impleaded in his personal capacity. The learned counsel also further explained relating to the conditions to be complied with and would submit that in view of the fact that certain conditions are to be deleted and the petitioners are prepared to comply with certain conditions like making gift and also complying with the balance value relating to the land value determination. The learned counsel would maintain that it would be appropriate if the matter is remitted to R-3, the Vishakapatnam Urban Development Authority especially in the light of the peculiar stand taken by both Gajuwaka Municipality and also at present the Greater Vishakapatnam Municipal Corporation. 7. On the contrary, Sri Ranga Reddy, the learned Standing Counsel representing at present the substituted party, respondent No.1, had taken this Court through the counter affidavit filed by the Commissioner of Gajuwaka Municipality and would maintain that in the facts and circumstances of the case the relief prayed for by the petitioners cannot be granted. 8. Sri Avula representing Sri G.S.N.Murthy, the second respondent, would contend that the allegations are made as against the second respondent only due to frustration and no acceptable material is placed before this Court and especially in the light of the stand taken by the second respondent – Sri G.S.N.Murthy, in the counter affidavit, no observations in relation to the said allegations to be made. 9. Ms.Prithi Reddy, the learned counsel representing the third respondent had taken this Court through the counter affidavit filed by the third respondent and would maintain that unless and until the conditions specified by the third respondent are complied with, the question of releasing of lay out, as requested for, would not arise. 10. Heard the counsel on record. 11. The Secretary of the first petitioner Society had sworn to the affidavit filed in support of the writ petition. It is stated that M/s.Mathrusree Cooperative House Building Society, hereinafter for short, referred to as ‘society’ for the purpose of convenience, was one of the oldest Cooperative House Building Societies got established in Vishakapatnam way back in the year 1979 bearing registration No.B- 1751 and there are 1500 members in the society. The aforesaid society had acquired approximately 47.69 acres of land situated at Kurmannapalem village and the said village is one of the satellite villages of Visakhapatnam city and since the lands were acquired by the Society much prior to the establishment of Visakhapatnam Steel Plant, it was not considered as a prime area in those days. It is also stated that Kurmannapalem village is part of Vadlapudi Gram Panchayat, which is a major Gram Panchayat in the former Visakhapatnam Taluq. It is also stated that the society had developed the land and made lay outs for housing colony and allotted plots in favour of nearly 400 of its members and conveyance of the title in favour of the plot owners had also been accomplished by execution of registered sale deeds in their favour. It is also stated that as demanded by the Vadlapudi Gram Panchayat, which is the competent authority for according approval for laying out the housing colonies, a sum of Rs.24,402-30 was paid towards the conversion charges of the land from agricultural use to non-agricultural uses by the Society and the receipt passed by the Gram Panchayat was furnished to the third respondent. The lay out approval charges were also paid and thereafter the Vadlapudi Gram Panchayat had forwarded the application for approval of the 2nd respondent on 23.2.1980. Considering the proposal of the Vadlapudi Gram Panchayat, the second respondent through proceedings dated 09.2.1981 directed the Society to comply with certain objections raised by the second respondent. The Visakhapatnam Urban Development Authority (VUDA) had also demanded for production of documents vouching for the title of the society to the land, detailed lay out plan, topographic plan and contour plans in triplicate and demanded payment of development charges in accordance with the rates fixed by the State Government. The VUDA demanded a sum of Rs.74,630/- to be deposited towards the development charges. The Society had also pointed out that the plotted area, after leaving 46% of the total area towards public/civic/communal purpose, works out for and the development charges are to be paid @ Rs.54,000/- only. It is learnt that several rounds of communications and correspondence ensued between the Society and the VUDA. It is also stated that objections ranging from the dispute about the title to the land, ensuing land acquisition proceedings for certain extent of land forming part of the proposed lay out by the Indian Railways and a proposal by the VUDA itself for establishing a satellite township there around, have all come in the way of final settlement of the matter. 12. It is also stated that ultimately the land acquisition notifications had been withdrawn under Section 49(1) of the Land Acquisition Act and thereafter, the VUDA had passed a resolution No.26 on 12.4.1986 resolving to grant the layout sought for by the Society, after scrutiny of the title deeds. Yet another resolution No.47, dated 01.6.1986 approving the layout in an extent of 43.69 Acres only had been passed by the VUDA. Even with reference to the balance of 4 acres of parcel of land left out, when the matter had once again been taken up, VUDA had passed resolution No.160, dated 30.12.1986 to grant the layout to the Society if no orders were received from the State Government within the next 30 days with regard to the withdrawal of the land acquisition proposals kept pending by the State Government. The entire issue was again considered by the VUDA and it passed resolution No.174, dated 24.2.1987 granting the layout permission with regard to the left out parcel of 4 acres land as well and thus finality had reached. 13. It is also further stated that the actual release of the block layout plan had been deferred at the very last minute inasmuch as the Land Acquisition Officer had gone ahead and passed an award with reference to the land acquisition proposals initiated under section 4(1) of the land Acquisition Act as the State Government had not passed orders withdrawing the lands from the acquisition proposals and the time for passing the award was running out. As a result of this award passed by the land Acquisition Officer, the VUDA was disabled from releasing the layout plan in favour of the Society and it accordingly, rejected the same through its communication dated 24.4.1987 and in those circumstances, questioning the correctness of the rejection order, the Society filed W.P.No.7093 of 1987 and this Court by its judgment dated 11.10.1988 was pleased to set aside the awards passed by the Land Acquisition Officer in question and consequently, the orders of rejection passed by the VUDA on 24.4.1987 were also set aside. 14. It is also stated that taking up the matter for consideration all over again, the VUDA directed a sum of Rs.80,171 to be deposited with it towards the development charges and a further sum of Rs.32,070/- with the Vadlapudi Gram Panchayat at the rate of Rs.2/- per 10.sq.metres area. Thus, in all, a sum of Rs.1,12,241/- had been demanded. Though the Society had protested for the same, nonetheless, the said sum of Rs.1,12,241/- as demanded by the VUDA through its letter dated 22.10.1990 had been paid up on 6.12.1990 and the receipts were furnished to VUDA. The Society, therefore, requested the layout plan to be released. Once again, part of the layout land is sought to be acquired by the VUDA for its own purposes. When W.P.No.6186 of 1990 was moved and pursuant to certain directions issued by this Court, through proceedings dated 3.1.1991, block layout plan bearing No.5 of 1990 had been released by VUDA stipulating the following conditions: A. Block Layout Plan approval is subject to only for the lands other than Government/Tenure dispute lands. B. Approval is given as per the High Court orders in W.P.M.P.No.7896 of 1990 dated 25.4.1990 and subject to the various points mentioned in the Court order itself. C. The Society shall form the major approach road to export processing Zone, since the same is part of the layout. D. The approval is also subject to Visakha9patnam urban Development Authority Board Ratification. E. That the said Society should furnish an undertaking on a non-judicial stamp worth of Rs.10/- duly attested by a Notary stating that they should pay external development cost as and when demanded by Visakhapatnam Urban development Authority before the release of final layout. 15. It is also stated that the Society had entered into a detailed and exhaustive correspondence with the VUDA and ultimately, it had agreed to part with the land of an extent of 1.05 acres in all for the purpose of laying a 100 feet approach road to the Export Processing Zone, sought to be constructed in the proximate closeness of the layout lands of the Society in Kurmannnapalem village. It was suggested that the Export processing Zone, one of its kind in the entire State, is to be established and that the said project is a prestigious one insofar as the Visakhapatnam is concerned and hence, it is obligatory for the Society to cooperate by allowing the 100 feet road to be laid through its lands for approaching the Vizag Export Processing Zone. Without seeking any compensation, the Society had parted with the land of an extent of 1.05 acres free of cost and allowed 100 Feet road to be formed through its land for approaching the Export Processing Zone from the national high way No.5. Notwithstanding such generous attitude adopted by the Society, the final layout plan adopted by the Society, the final layout plan liable to be released in its favour, had not bee released and instead another block layout plan No.25 of 1991 had been released on 15.10.1991 virtually reiterating the same conditions as were stipulated earlier on 3.1.1001. As desired, the internal road sizes had been modified and internal roads of 60’, 40’ and 30’ had been laid. After due inspection, the Vice-Chairman of the VUIDA appears to have passed orders in the file, Rc.No.122090-G1, dated 18.12.1992 for releasing the final layout plan in favour of the Society. 16. It is also further stated that originally, the APSEB had estimated the cost of providing electrification works to the layout at Rs.9,33,200/- and the same was subsequently revised upwardly to Rs.13,04,000/- and those amounts had also been paid up by the Society. Full length masonry drains had been constructed. It is also stated that for one reason or the other, the final layout plan in favour of the Society was not accorded though the 60’ and 40’ internal roads of the Society are put to use as thoroughfare and approach roads for the housing projects undertaken by VUDA. It is also stated that after protracted correspondence and litigation in this Court, inspections had been ordered to be conducted as to ascertain the facts relating to the formation of roads, construction of drainages, construction of 54 culverts for free passage of storm water drain also the avenue tree plantation work had been accomplished. It was also further stated that team of officials, which included the 2nd respondent herein had visited the layout site and drew up a report in detail on 01.9.2004. Based upon the same VUDA had passed orders through its proceedings dated 28.9.2004 releasing the final layout plan of the land developed by the Society, but however, it had released the layout plan to the Gajuwaka municipality in whose local limits Kurmannapalem layout had fallen and imposed the following conditions to be accomplished: “ 1. The 2 pockets are covering an extent of Acs.2.05 cts., which is not developed should be developed or if it cannot be done, it should be withheld from the layout boundary. 2. To furnish a certificate from A.P.Transco of having completed the street electrification works together with provision of 3 transformers to the Commissioner, Gajuwaka Municipality. 3. Two bore wells to be provided in proposed open space. 4. The open spaces marked as B,C,D,E,F in BLP No.1/93 were sold as plots as early n 1982 by the society to its members and hence, the alternative open space to an extent of Acs.1.27 cts., proposed by the Society should be handed over to the Commissioner,Gajuwaka Municipality duly fencing it over a 2’ basement wall and should pay land value for the balance area of Ac.2.69 cents towards the 10% open space, to fulfill the 10% open space norms to the Commissioner, Gajuwaka Municipality. 5. All Court cases filed by the affected allottees in the open space areas of BLP No.1/93 shall be withdrawn as their grievance have been resolved.” 17. It is also stated that the land of an extent of Ac.2.05 in 2 pockets had been encroached upon illegally by certain lawless persons. A suitable civil action was initiated against them. Further, 3 of the 4 electric transformers installed by the Electricity Board had suffered pilferage. Similarly, transmission lines, which had been laid in the layout, had been cut and stolen away taking advantage of the darkness of the layout. However, upon complaint lodged with the local police, the crime had been investigated and 5 out of 6 persons responsible for these pilferages had been arrested and some of the stolen property had been retrieved, but however, one of the accused was still at large and is believed to have run away to the nearby area and the local police were unable to apprehend him and bring him to book. It is understood that rest of the stolen property can be restored only upon his arrest. Therefore, the criminal case is taking its own time. However, the electricity board officials had specifically given an undertaking that they will reinstall the three pilfered transformers in the layout and also relay the transmission lines, which had been cut and stolen away. The two bore wells had been dug up in the layout. All the roads had been once again re-laid, the masonry drainage had been accomplished and as was further desired, the tree plantation work had also been provided by getting constructed the road dividers around them. During the course of inspection by the team of VUDA officials in which the engineering staff of the Gajuwaka Municipality had also participated, the green belt and open spaces provided in the layout had been measured and recorded as 1.27 acres. Leaving out the green belt area, rest of the open spaces were asked to be surrounded by a fencing upon a 2’ basement. Accordingly, the open spaces had been completely surrounded by a 2’ compound wall and mesh installed thereon. For the balance of 2.69 acres, VUDA suggested to the Gajuwaka Municipality to collect the land value. Accordingly, a sum of Rs.1,70,000/- had been paid by way of demand drafts. They had been encashed by the Gajuwaka Municipality. 18. It is also stated that in spite of being satisfied that all the conditions stipulated by the VUDA had been fully accomplished, the 2nd respondent herein had not initiated any steps to release the final layout plan in favour of the Society. It is openly touted in Gajuwaka that the 2nd respondent is habituated to receive illegal gratifications for performing his official functions. Therefore, the 2nd respondent had not put up any proposal before the Gajuwaka Municipality to enable it to pass a resolution to accept the gift of open spaces and green belt area of an extent of 1.27 acres and to receive the value of the balance open spaces. He had also not taken any steps for passing a resolution for vesting of the roads and two bore wells dug up in the lay out for providing the drinking water in the layout and the take over of the maintenance of the masonry drains and 54 culverts constructed in the layout. It is also stated that the second respondent is sitting tight on the matters and he does not pass orders and tries to create false record as if he had been attending to the relevant work. It is also learnt that the Society had in fact succumbed to the illegal demands of the 2nd respondent. It is strongly rumored that the 2nd respondent had received illegal gratification through his wife Guruja Satyavathi from the Society, but yet he was not satisfied and he had been deliberately and purposefully avoiding to perform his legal obligations by not releasing the lay out. 19. It was also further pleaded that the actions of the 2nd respondent amounted to contemptuous conduct on his part, appropriate contempt proceedings in C.C.No.240 of 2005 had been initiated in this Court and this Court after issuing notice, had been prima facie satisfied that the 2nd respondent was guilty of having committed contempt of Court and accordingly put him on notice. The second respondent had not taken any steps to purge his conduct so far. It was also stated that since the contempt proceedings would only result in visiting some punishment or disapproval of the contempt of the second respondent only, he is merrily sitting tight on the file without releasing the layout in favour of the Society and is proclaiming openly that this Court is not going to punish him at all and therefore, the Society is constrained to file the writ petition otherwise it will not be able to secure permission from the appropriate authorities for construction of residential houses. It is also stated that they had been waiting for all these years for the final lay out to be released so that their building permissions will be considered and approvals will be accorded to enable them to undertake construction of buildings. Until the final lay out is released, the building permissions will not be accorded by the Gajuwaka Municipality and thus, the second respondent was indulging in arm-twisting tactics, so that all the plot owners also will succumb to his illegal demands, otherwise they will be put to irrepairable loss and hardship at the hands of second respondent inasmuch as the construction costs are spiraling by passage of time and their plots are being exposed to the risk of encroachments by antisocial elements during night times and every night they find temporary structures such as thatched huts etc., are being raised in one plot or the other taking full advantage of the lack of appropriate security during the night time to the lay out. They are visiting the police stations and lodging complaints against the encroachers and at the site the watchman and other security staff put up by them were beaten up by the antisocial elements creating law and order problems because of the isolation of the layout. It is also stated that protecting and preserving the land had now become an acutely difficult job and to protect their property in question, they were rendered helpless due to the illegal conduct of the second respondent. Therefore, the Gajuwaka municipality should be compelled to release forthwith the layout inasmuch as any other conditions stipulated by VUDA, if at all are liable to be accomplished, they can always be accomplished later on also, and they will be able to preserve and protect the property in the mean time. After all Gajuwaka Municipality will have effective control over the layout activity, therefore, it is appropriate that the final layout should be released forthwith. 20. It is further stated that there are no bona fides whatsoever behind the action of the Commissioner of Gajuwaka Municipality in not releasing final layout as per the directions of the VUDA. It is also stated that the Gajuwaka Municipality is bound to carry out in all respects the directions issued by the VUDA, which is a statutory Corporation and hence, Gajuwaka Municipality or its Commissioner are not vested with any further discretion in the matter. The Commissioner, Gajuwaka Municipality cannot raise any dispute with regard to the measurement as are found and included in the layout plan released by VUDA on 22.9.2004. Infact the commissioner, Gajuwaka Municipality, the Municipal Engineer and the Town Planning Officer of Gajuwaka Municipality were very much present and they were part of the inspecting team constituted by VUDA, which had undertaken repeated inspections of the layout. Only thereafter, the final report drawn on 1.9.2004 had been submitted to this Court. It is stated that the Commissioner of Municipality cannot now turn around and indulge in baseless and speculative issues and try to create factual dispute relating to measurement for the sake of creating one. Further, the Commissioner, Gajuwaka Municipality cannot seek to alter the letter and spirit of the orders passed by VUDA, when it authorized the Gajuwaka Municipality to collect the value of the land for the balance extent of Ac.2.69 cents. It is also stated that the value of the land had been authorized to be collected in view of the fact that an equal extent of land in the layout plan laid down as plots and conveyed to the members of the Society in the period between 1980- 84, therefore, VUDA had suggested the value of this extent of land to be received. It is stated that the realignment and adjustments of the plots had become an acute necessity in view of the altered positions with regard to the roads in the layout. In the original lay out plan drawn and submitted for approval to the Vadlapudi Gram Panchayat there was no provision made for a 100’ VPEZ approach road to pass through the layout in question. As a measure of cooperation and obligation, the Society had transferred free of cost 1.05 acres to VUDA for laying this 100’ road. It is also stated that the rules during 1980s only required the internal roads in a layout to be of 30’dimension. Since the layout plans had delayed from being