THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NOs. 6529 OF 2011 & 28783 OF 2011 COMMON ORDER: 1. Since both the Writ Petitions are connected, they are being disposed of by this Common Order. 2. Writ Petition No.6529 of 2011 is filed seeking to issue a writ of mandamus declaring the action of the third respondent in issuing letter Rc. No.431/06/B1, dated 05.03.2011 requiring the second respondent to stop construction and water supply to the construction project of the petitioner on its property to an extent of 6,890 square yards in survey nos. 1011/1A, A1, 3B & 3C situated at Waltair Ward, Visakhapatnam as illegal and arbitrary and consequently quash the said letter as well as the notice of the second respondent in Rc. No.3206/2010/ACP-II, dated 10.3.2011 purported to have been issued under Section 451 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, ‘GHMC Act’) on the directions of the third respondent. 3. The averments, in brief, stated in the affidavit filed in support of the Writ Petition may be stated as follows. One Addepalli Venkatappayya Sastry purchased an extent of Ac.10.00 ½ cents in survey no.1011 of Waltair Ward, Visakhapatnam under a registered sale deed dated 7.5.1954. In the years 1983 and 1985, he sold an extent of 2,752 and 2,870 square meters of land to one Pinnamaraju Venkatapathi Raju and Kasi Naga Kanaka Brahmam respectively and delivered possession of respective lands to the purchasers, who constructed houses in the said respective lands. He filed a declaration under Section 6(1) of the Urban Land Ceiling Act for the lands in survey no.1011 along with other lands and the aforesaid lands were declared as surplus. Thereafter, on the applications of the vendees pursuant to issuance of G.O. Ms. No.455 and G.O. Ms. No.456, dated 29.7.2002, the Government issued G.O. Ms. Nos. 256, dated 27.2.2006 and G.O. Ms. No.424, dated 6.4.2006 regularising the possession of the respective lands in favour of the vendees. The said P.Venkatapati Raju and sons of deceased declarant Addepalli Venkatappayya Sastry sold an extent of 3,290 square yards in survey no.1011/1A and 3B under a registered possessory agreement of sale coupled with General Power of Attorney dated 8.5.2006, in favour of the petitioner herein for a valid consideration and delivered possession thereof along with structures thereon, to the petitioner. The said Kasi Naga Kanaka Brahmam and sons of deceased declarant Addepalli Venkatappayya Sastry sold an extent of 3,600 square yards in survey no.1011/1A, 1A 3C under a registered possessory agreement of sale coupled with General Power of Attorney dated 2.8.2006, in favour of the petitioner herein for a valid consideration and delivered possession thereof along with structures thereon, to the petitioner. Thereafter, petitioner entered into development agreements and possessory agreements with different members of Sri Rama Co-operative House Building Society, Visakhapatnam in respect of total extent of 4,369 square yards. The petitioner is paying enhanced taxes to the second respondent. The petitioner obtained no objection certificate from all civic authorities for construction of a building consisting of four blocks with sub-cellar, cellar, ground + 7 upper floors each, and submitted an application to the second respondent along with fee of Rs.1,06,32,845/- for permission for construction, and accordingly, the second respondent accorded permission vide B.A. No.11056/08/ACP-II/G1, dated 18.4.2009. On the allegation that vendors of petitioner fabricated tax receipts and pass books concerning the land with a view to fit themselves into a particular slab under G.O. Ms. No.455, dated 29.7.2002, government issued G.O. Ms. No.493, dated 26.3.2008 directing the authorities to collect differential amount calculating the value at the highest slab as per G.O. Ms. No.455, dated 29.7.2002. The petitioner, being the bona fide transferee, not only paid the consideration to its vendors but also paid the differential amount to the government, and Urban Land Ceiling authority issued endorsement dated 27.6.2008. Thereafter, the petitioner undertook development of the land in question along with other lands and commenced construction after obtaining building permission from the second respondent. One Mrs. Parveen Asgar Mehdi and 3 others filed Writ Petition No. 9680 of 2008 challenging the G.O. Ms. No.256, dated 27.2.2006 and G.O. Ms. No.424, dated 6.4.2006; and Writ Petition No.2771 of 2009 challenging G.O. Ms. No.493, dated 26.3.2008. This Court, vide common order dated 1.4.2009, disposed of both the Writ Petitions observing that it shall be open to the vendors of the petitioner to utilize the land that is allotted to them under G.O. Ms. No.424, dated 6.4.2006 without however in any way encroaching into rights of the petitioners therein as regards neighbouring lands. One Sri N.Jayakumara Rao also filed a Public Interest Litigation in Writ Petition No.23315 of 2009 questioning G.O. Ms. No.493, dated 26.3.2008, which was dismissed by a Division Bench of this Court vide order dated 26.3.2010. The petitioner spent huge amounts for construction of structures, which are in accordance with the building regulations. On the false complaints with unfounded allegations made by some disgruntled elements, officials of the second respondent along with the third respondent came to the site on 4.3.2011 and asked to stop construction forthwith, Challenging the same, the petitioner filed Writ Petition No.5769 of 2011, which was disposed of on 8.3.2011 directing the authorities not to interfere with the construction except initiating by proceedings in accordance with law. The third respondent, being well aware of the directions of this Court, taking the things personally in a spiteful manner, issued the impugned notice in letter Rc. No.431/06/B1 on 8.3.2011 ante-dating it as if it were issued on 5.3.2011, to the second respondent herein. Acting on the said communication, the second respondent issued notice in Rc,. No.3206/2010/ACP-II, dated 10.3.2011 purported to have been under Section 450 of the GHMC Act to the effect that Anti-Corruption Bureau reported that vendors of the petitioner got the land regularized by submitting fake and fabricated house tax book and house tax receipts to grab the government land and permission was granted for prosecution of its vendors, and asking the petitioner to stop construction forthwith and explain as to why permission granted should not to be revoked. The notice dated 10.3.2011 issued by the second respondent is only a consequential one to the direction or request of the third respondent through letter dated 5.3.2011, and thus, it is without any application of mind on the part of the second respondent. After submitting its explanation, the present Writ Petition is filed by the petitioner challenging the said proceedings. 4. The facts leading to filing of the other Writ Petition No.28783 of 2011 may be stated as follows: As per order dated 16.3.2011 in W.P.M.P. No.8133 of 2011 in the first Writ Petition i.e. W.P. No.6529 of 2011, this Court granted interim suspension of the order dated 5.3.2011 issued by the second respondent. Thereafter, the first respondent issued Memo No.4027/UC.I/2011, dated 20.9.2011 keeping in abeyance (1) G.O. Ms. No.256, dated 27.2.2006; (2) G.O. Ms. No.424, dated 6.4.2006 and (3) G.O Ms. No.493, dated 26.3.2008 until further orders, purportedly on the malicious and factually incorrect communication notwithstanding the fact that on numerous occasions, this Court upheld the validity of the said Government Orders. Aggrieved by the same, the petitioner filed Writ Petition No.23838 of 2011, wherein this Court suspended the Memo dated 20.9.2011 vide interim order dated 11.10.2011 and the same was communicated to the authorities vide telegram and registered post. Inspite of having knowledge of the above proceedings, the second respondent issued proceedings in RoC No.3206/10/ACP-II, dated 18.10.2011 revoking the building permission accorded vide proceedings BA No.11056/2008/ACP-II, dated 18.4.2009, and directing the petitioner to stop construction forthwith. Challenging the same, the second Writ Petition No.28783 of 2011 has been filed. 5. The third respondent filed a detailed counter affidavit in Writ Petition No.6529 of 2011 stating inter alia as follows: The second respondent in his letter dated 1.6.2007 reported to the District Collector, Visakhapatnam stating that on verification of records of property tax submitted by the P.Venkatapathiraju and K.Naga Kanaka Brahmam, it was found that they filed fabricated tax receipt copies to get the surplus land regularized in their favour. G.O. Ms. No.493, dated 26.3.2008 was issued directing the authorities to collect differential amount calculating the value at the highest slab as per G.O. Ms. No.455, dated 29.7.2002, but there is no such provision of collecting the highest slab rate for any structure either temporary or permanent having no primary documents as per the guidelines G.O Ms. No.455, dated 29.7.2002. On verification of bank records of the Demand Drafts/Pay orders submitted by the said persons towards the differential amounts, it is found that the amounts were remitted by neither of them, but were remitted by benami transactions of vested interested persons i.e. Managing Director of writ petitioner firm. The Demand Drafts submitted by the said persons towards regularization fee were also purchased debiting current account of Prasad Constructions and Company on 13.8.2005. So, the said persons played fraud and cheated the Government in furtherance of common intention to grab valuable government land by submitting fake and fabricated house tax receipts and tax books and submission of Demand Drafts of benami transactions. On the directions of the Government through the District Collector, a case in crime no.128/2011 was registered by the III Town police, Visakhapatnam against the said K.Naga Kanaka Brahmam and P.Venkatapathi Raju for the offences under Sections 420, 465, 468 and 471 of the Indian Penal Code. The concerned authorities were also addressed not to effect any registration of sale transactions of the said land, to stop further construction and water supply, etc. and to disconnect power supply to the said land. No possession was handed over to the applications in the G.O. Ms. Nos. 424, dated 6.4.2006; 256, dated 27.2.2006 and 493, dated 26.3.2008, and the Government has to take a decision for cancellation of the said Government Orders by following due process of law as ordered by this Court vide order dated 8.3.2011 in Writ Petition No.5769 of 2011. Had the said K.Naga Kanaka Brahmam and P.Venkatapathi Raju constructed any houses in the land purchased by them from late Addepalli Venkatappayya Sastry, there is no need for them to file fake and fabricated documents of house tax receipts and tax books along with their applications for regularization of the subject land. No possession of surplus land was handed over to so called vendors of petitioner except issuing the endorsement on G.O. Ms. No.493, dated 26.3.2008 along with sketch of site as directed by the Government after collection of differential amount, presuming that the Demand Drafts towards differential amount are submitted by the applicants are remitted by them only. The property tax which subsequently paid by the writ petitioner, as contended, is also a pre-determined role of entire episode of their mala fide intention to grab the valuable government land. The petitioner is in knowledge of its vendor had fabricated tax receipts and pass books with a mala fide intention to grab the valuable government land by misusing the facility provided by the Government under G.O. Ms. No.455, dated 29.7.2002. This is a case of volenti non fit injuria i.e. when a person knowingly and voluntarily seeks injury has no remedy in the court of law. Hence, it is prayed to dismiss the Writ Petition. 6. The petitioner filed reply affidavit to the counter affidavit filed by the second respondent denying the allegations therein and stating inter alia as follows: The second respondent accepted that he acted in obedience of the instructions of the third respondent. The second respondent is an autonomous legal body enjoying constitutional status under the concept of local body government and no law mandates that the second respondent should act in obedience to any directions of the third respondent. So, the impugned order dated 10.3.2011 has been issued without application of mind and in clear abdication of statutory functions to be performed by the second respondent and so, the whole process adopted by the second respondent is vitiated. 7. The petitioner also filed reply affidavit to the counter affidavit filed by the third respondent denying the allegations therein and stating inter alia as follows: The government has taken the decision to collect highest slab rate to ensure that it does not suffer any financial loss. In Original Suit No.1524 of 2006 on the file of the Principal Senior Civil Judge, Visakhapatnam filed by the petitioner even prior to the whole controversy, the competent civil court granted interim injunction till disposal of the suit as per order dated 7.11.2007 in I.A. No.1873 of 2006. The proceedings in criminal case in crime No.128 of 2011 of III Town police station, Visakhapatnam have been quashed by this Court as abuse of process of law, as per order dated 09.11.2011 in Criminal Petition No.3353 of 2011. After hearing the counsel for the third respondent herein, who is a party to Writ Petition No.5769 of 2011, this Court disposed of the said Writ Petition and so the authorities cannot say that they did not receive any official orders from this Court. As per G.O. Ms. Nos.455 and 456, dated 29.7.2002, original land holder, the subsequent occupier and the subsequent purchaser are eligible to have regularization, but the only question is differential slab rates. Vendors of the petitioner have never fabricated any documents. The petitioner pursued the matter for modification of the G.O. by paying differential amount since it could not expect its vendors without any subsisting interest in the property and ultimate it is the petitioner who suffer due to inaction on the part of its vendors and so there is every justification in conduct of the petitioner in protecting its property rights. 8. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in Writ Petition No.6529 of 2011. 9. Learned counsel for the petitioner contended that the third respondent has no authority to address a letter Rc. No.431/06/B1, dated 05.03.2011 to the second respondent requesting to stop further constructions and water supply for the subject land; that solely on the ground that prosecution on the vendors of the petitioner was pending, the impugned proceedings have been issued; that, if the vendors of the petitioner are convicted in a court of law, the Government may take a decision to resume the land; that the ground on which the third respondent addressed letter to the second respondent is unsustainable as prosecution against the vendors of the petitioner by name Pinnamaraju Venkatapathi Raju and Sri Kasi Naga Kanaka Brahmam has been quashed by this Court as per order dated 09.11.2011 in Criminal Petition No.3353 of 2011, and therefore, the impugned order is liable to be set aside and consequently all other orders issued thereunder have to be revoked. 10. On the other hand, the learned Government Pleader for Assignment contended that since the transaction in favour of the petitioner is a benami transaction and the vendors of the petitioner, by producing false documents, got exemption, the petitioner is not entitled to any relief. 11. The learned standing counsel for the second respondent contended that in pursuance of the letter addressed by the third respondent, the second respondent passed the order under Section 450 of the GHMC Act, calling for explanation of the petitioner and therefore there are no grounds to interfere with the impugned proceedings. 12. The factual matrix is not in dispute. One Addepalli Venkatappayya Sastry said to have purchased an extent of Ac.10.00 ½ cents in survey no.1011 of Waltair Ward, Visakhapatnam i.e. the subject land and some other land under registered sale deed dated 7.5.1954. He filed a declaration under the provisions of the Urban Land Ceiling Act showing some lands as surplus lands. He sold 2,752 square meters of land to one Pinnamaraju Venkatapathi Raju and 2,870 square meters to one Kasi Naga Kanaka Brahmam. On the applications made by the vendees, Government issued G.O. Ms. No.256, Revenue (UC.I) Department, dated 27.2.2006 and G.O. Ms. No.424, Revenue (UC.I) Department, dated 06.04.2006 regularising the surplus land in their favour. The petitioner company said to have purchased 3,290 square yards of land through a registered possessory agreement of sale coupled with General Power of Attorney dated 8.5.2006 from the said Pinnamaraju Venkatapathi Raju and sons of deceased original owner. Similarly, the petitioner also purchased 3,600 square yards of land through a registered possessory agreement of sale coupled with General Power of Attorney dated 2.8.2006 from the said Kasi Naga Kanaka Brahmam and sons of the original owner. The petitioner also entered into 3 development agreements and 7 possessory agreements with different members of the society for an extent of 4,369 square yards which is adjacent to the land of the vendors of the petitioner and the petitioner has been paying taxes to the second respondent. Permission was granted by the second respondent in favour of the petitioner for construction of sub-cellar, cellar, ground + 7 upper floors vide B.A. No.11056/08/ACP-II/G1, dated 18.4.2009, upon issuance of no objection certificates from the concerned departments. On the ground that vendors of the petitioner fabricated tax receipts and pass books concerning the land, the vendors of petitioner volunteered to pay highest slab rate as fixed by G.O. Ms. No.455, Revenue (UC.I) Department, dated 29.7.2002, and the Government accorded permission to the authorities to collect the penal amount from the vendors of petitioner. 13. It is not in dispute before this Court that G.O. Ms. No.256, Revenue (UC.I) Department, dated 27.2.2006 and G.O. Ms. No.424, Revenue (UC.I) Department, dated 06.04.2006, which are regularization proceedings issued in favour of the vendors of the petitioner, have not been revoked or cancelled as on today. As seen from the impugned proceedings issued by the third respondent as well as the second respondent, the only ground for directing the petitioner not to proceed with further construction and for ordering to stop water supply to the building in question by keeping in abeyance/canceling the construction permission, is pendency of prosecution against the vendors of the petitioner, stating that if the two persons are convicted in the court of law, the Government may take a decision to resume the subject land with or without giving notice besides forfeiting the regularistion amount. It is not in dispute that vendors of petitioner paid highest slab amount as fixed in G.O. Ms. No.493, Revenue (UC.I) Department, dated 26.3.2008 in terms of G.O. Ms. No.455, Revenue (UC.I) Department, dated 29.7.2002. There is no factual foundation to show that the petitioner company is a benami company floated by Pinnamaraju Venkatapathi Raju and Kasi Naga Kanaka Brahmam, against whom certain allegations were leveled. There is no allegation whatsoever against the petitioner with regard to fabrication of documents or misleading the Government in getting regularization orders. 14. It is not in dispute before this Court that the third respondent herein lodged a complaint with the Station House Officer, III Town police station, Visakhapatnam against the said Pinnamaraju Venkatapathi Raju and Kasi Naga Kanaka Brahmam that they have submitted fake and fabricated house tax took and tax receipts to the then Special Officer, Urban Land Ceiling, Visakhapatnam so as to grab the valuable government land. Basing on the same, a case in crime no. no.128/2011 was registered by the III Town police, Visakhapatnam against the vendors of the petitioner for the offences under Sections 420, 465, 468 and 471 of the Indian Penal Code. Challenging the same, vendors of the petitioner filed Criminal Petition No.3353 of 2011 before this court. This Court, vide order dated 9.11.2011, allowed the Criminal Petition quashing the proceedings in crime no.128 of 2011 of III Town police station, Visakhapatnam. Therefore, no prosecution is pending against the vendors of the petitioner. Even otherwise, pendency prosecution of the criminal case against the vendors of the petitioner, cannot be a ground to for the third respondent to address the impugned letter Rc. No.431/06/B1, dated 05.03.2011 requiring the second respondent to stop construction and water supply to the buildings in the subject land. 15. The petitioner seems to be bona fide purchaser for a valuable consideration and obtained construction permission from all the concerned authorities, including the second respondent herein, to construct a building, and made constructions and sold the flats to the third parties. The petitioner seems to have entered into development agreement not only in respect of the subject site but also with some other lands adjacent to the subject land and developed the entire extent. Under no stretch of imagination, it can be said that the transaction between the petitioner and its vendors is a benami transaction. So long as G.O. Ms. No.256, Revenue (UC.I) Department, dated 27.2.2006 and G.O. Ms. No.424, Revenue (UC.I) Department, dated 06.04.2006 in favour of Pinnamaraju Venkatapathi Raju and Kasi Naga Kanaka Brahmam are not revoked, the third respondent has no authority to require the second respondent to stop further constructions in, and water supply to, the subject land. 16. The second respondent should not abuse its power and the petitioner must receive a just and fair treatment. When discretionary power is conferred on an authority, the said authority must exercise that power after applying its mind to the facts and circumstances of the case on hand If this condition is not satisfied, there is clear non- application of mind on the part of the authority concerned. The authority might be acting mechanically without due care and caution or without a sense of responsibility in exercise of its discretion. In judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or the order is made. Thus, judicial review must protect citizens from abuse or misuse of power by any branch of the State. 17. Originally, the Government had taken a decision in pursuance of the report submitted by the District Collector to keep G.O. Ms. No.424, Revenue (UC.I) Department, dated 6.4.2006 in abeyance. The Government have taken a decision to withdraw the abeyance orders issued in Government Memo No.59377/U.C.I/2006-2, dated 23.3.2007. Later, the applicants therein were directed to pay highest slab rate existing as on the issuance of G.O. Ms. No.455, dated 29.7.2002. Though it is stated that differential amount at highest slab has been paid by said Pinnamaraju Venkatapathi Raju and Kasi Naga Kanaka Brahmam, in the entire counter affidavit of the third respondent, it is stated that vendors of the petitioner submitted fake house tax receipts and tax book to grab the land. Now that, the criminal prosecution against the vendors of the petitioner is also quashed. 18. It is also not in dispute before this Court that One N.Jayakumara Rao filed Writ Petition No.23315 of 2009 before this court to declare G.O. Ms. No.493, Revenue (UC.I) Department, dated 26.3.2008 as illegal and unconstitutional. The said Writ Petition was dismissed by a Division Bench of this Court. So long as the Government orders, in favour of the vendors of the petitioner, are in force and have not bee revoked or cancelled, the respondents 2 and 3 have no authority to issue the impugned proceedings. The second respondent has no power to revoke the building permission granted to the petitioner vide B.A. No.11056/08/ACP-II/G1, dated 18.4.2009. Since the issuance of letter Rc. No.431/06/B1, dated 05.03.2011 by the third respondent is illegal and arbitrary, any consequential proceedings issued by the second respondent in pursuance of the said proceedings of the third respondent, are liable to be set aside. 19. Accordingly, the Writ Petitions are allowed setting aside the impugned proceedings. No costs. ________________ (K.C.BHANU, J.) 28.12.2011 DRK THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION NOs. 6529 OF 2011 & 28783 OF 2011 Date: .12.2011