1. This Writ Petition is filed seeking a Writ of Mandamus to declare the action of 1st respondent in rejecting the application made by the petitioner for building permission in respect of plot No.44, block No.50 in T.S.No.1196/43 (B), Waltair Ward, Visakhapatnam, vide Endorsement in Rc.No.15798/2012/ACP-III dt.10-05-2013 as illegal, arbitrary and unconstitutional and to issue consequential direction to 1st respondent to approve the building permission in favour of the petitioner in respect of the said property.
2. The above property is of extent 836 sq.yds and the petitioner had purchased the same under registered sale deed dt.28-01-2009 from the previous owner Anjuman-E-Badri. The petitioner’s vendor had previously purchased the same from its previous owner Dantuluri Sanyasi Suryanarayana Gajapati Raju under registered sale deed dt.17-02-1990. The said Gajapathi Raju had inherited the property from his father who had purchased the same from the Rani of Daspalla in 1958. According to petitioner the property has always been private property and was neither assigned land nor does it belong to the Government.
3. Petitioner applied for permission for construction of a residential building in the year 2009 to the respondents. The said application was returned on 05-06-2009 on the ground that T.S.No.1196, Waltair Ward, Visakhapatnam was previously notified as Government property u/s.22-A of Registration Act, 1908 in G.O.Ms.no.657 dt.08-10-2001 and so building permission cannot be granted for it. Petitioner filed W.P.No.27840 of 2009 questioning the same. The said Writ Petition was allowed on 22-12-2009 holding that the said G.O. was struck down by the High Court in another case and the application of the petitioner cannot be returned by the respondents on that ground. It directed consideration of the petitioner’s application for building permission afresh.
4. Thereafter, the respondents again rejected grant of permission to the petitioner for making construction in her property by proceedings dt.18-02-2010. Petitioner questioned the same in W.P.No.30225 of 2011. The said Writ Petition was allowed on 24-09-2012 setting aside the proceedings dt.18-02-2010 of 1st respondent and directed 1st respondent to reconsider the application filed by the petitioner. This Court held that the objections raised by 1st respondent to reject the petitioner’s application for grant of building permission are not tenable. It held that by virtue of the decision of this Court in W.P.Nos.21487 and 21493 of 2000 dt.11-09-2009, the land in T.S.Nos.1196 and 1197 of Waltair Ward cannot be considered to be Government land and on that ground, the respondents cannot reject application of the petitioner for building permission. This order became final.
5. Thereafter, 1st respondent issued another endorsement dt.23-01-2013 requiring the petitioner to submit link documents for the purpose of consideration of the building application of the petitioner. Petitioner submitted all the link documents to the respondents.
6. Thereafter, the impugned endorsement dt.10-05-2013 was issued by 1st respondent rejecting the application of the petitioner on a new ground that T.S.No.1196/43 (B) of Waltair Ward, Visakhapatnam is earmarked for recreation and as open space (park) use by 1st respondent and as such as per the zoning regulations, residential building permission cannot be granted. There is also a reference to Order dt.04-06-2012 in W.P.No.36920 of 2012 of this Court without stating how that order is relevant to the case of the petitioner. It is merely stated that the District Collector, Visakhapatnam had filed an application to vacate the order and the Government had entrusted the matter to the learned Advocate General to defend the interest of the Government in respect of the lands in T.S.No.1027, 1028, 1196 and 1199 of Waltair Ward, Dasapalla Hills, Visakhapatnam.
7. Challenging this endorsement, petitioner has filed this Writ petition.
8. The petitioner contends that action of the respondents in repeatedly rejecting the application made by the petitioner for building permission giving different reasons on each occasion is highly illegal, arbitrary and unconstitutional; that in the counter affidavit filed in W.P.No.30225 of 2011, the respondents had not raised the plea that the land in T.S.No.1196/43 (B) of Waltair Ward had been earmarked for recreation and open space (park) use; even while asking the petitioner to submit link documents vide endorsement dt.23-01-2013, this was not stated by the respondents; for the first time in the present impugned endorsement dt.10-05-2013, this ground is raised. It is also pointed out that 1st respondent had taken a plea in W.P.No.30225 of 2011 (filed by the petitioner questioning the previous endorsement dt.18-02-2010) that the plot of the petitioner falls in unapproved layout and building permission cannot be granted, but suddenly a new plea is raised now in the impugned endorsement that the plot is earmarked for recreation and open space (park) use and permission cannot be granted. Counsel for petitioner contends that if at time when W.P.30225 of 2011 was filed, her land was in an unapproved layout according to respondents (which plea was rejected in the said case), in May 2013 when impugned order is passed, it could not have become an open space (park)/recreational space. It is contended by the petitioner that this shows that 1st respondent is acting with malice and in a vindictive manner. Petitioner points out that the respondents had in fact granted permission to make construction in T.S.No.1196 of Waltair Ward for one Sri A.Man Mohan and three others in respect of D.No.14-1-14/3, Daspalla Hills, Division 19, Visakhapatnam vide permit B.A.No.14024/2012/ACP/III dt.04-12-2013 and now when it comes to the case of the petitioner, it is being contended that it has been earmarked as an open space for recreation. Petitioner contends that the respondents are discriminating against her.
9. Learned Counsel for the petitioner has reiterated the above submissions and relied upon the decisions of the Supreme Court in Pt.ChetramVashist (dead) by LRs. Vs. Municipal Corporation of Delhi (1995) 1 S.C.C. 47) and MachavarapuSrinivasa Rao and another Vs. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and others (2011) 12 S.C.C. 154).
10. Counter affidavit is filed by respondent Nos.1 and 2. They do not deny the return of the petitioner’s building permission applied on 05-03-2009 on the ground that T.S.No.1196 was notified as Government land vide G.O.Ms.No.657 (which was set aside by order dt.22.12.2009 in W.P.No.27840 of 2009 filed by the petitioner) or the subsequent rejection on 18-02-2010 on the ground that the petitioner’s property did not form part of an approved layout and on other grounds (which were rejected in Order dt.24-09-2012 in W.P.No.30225 of 2011). It is further contended that although this Court in W.P.No.21487 and 21493 of 2000 had held on 11-09-2009 that the land in T.S.No.1196 and 1197 was not government land, the subject matter of the Writ Petitions is pending in Supreme Court and that the Government of Andhra Pradesh had filed curative petition which is pending. It is also contended that the site of the petitioner falls under recreation and open space (park) as per the sanctioned Master plan prepared by the Visakhapatnam Urban Development Authority (VUDA) on 17-11-2005 much prior to the sale of the petitioner and therefore building permission cannot be granted to the petitioner and the impugned endorsement is valid.
11. Learned counsel for the respondents also reiterated the stand taken in the counter and relied upon the decisions in Bangalore Medical Trust Vs. B.S.Muddappa and others (1991) 4 S.C.C. 54) and Dr.G.N.Khajuriaand others Vs. Delhi Development Authority and others (1995) 5 S.C.C. 762).
12. I have noted the submissions of both sides.
13. It is not in dispute that the petitioner has purchased the subject property under registered sale dt.28-01-2009 from his vendor. When petitioner applied for building permission, 1st respondent had returned it on 05-06-2009 stating that in view of the Notification contained in G.O.Ms.No.657 dt.08-10-2001 issued under Section 22A of the Registration Act, 1908, permission for building construction cannot be granted. This was challenged by the petitioner in W.P.No.27840 of 2009 and the said Writ Petition was allowed on 22-12-2009. The respondents were directed to consider the application of the petitioner afresh without reference to the said G.O.
14. Thereafter, again application of the petitioner for building permission was rejected by an endorsement dt.18-02-2010 on the following grounds:
'1.The proposed site does not form part of approved layout and the site under reference is subdivided unauthorizedly without getting the required approval from the Visakhapatnam Urban Development Authority (VUDA) as per the provisions of Andhra Pradesh Urban Areas Development Act, 1975.
2. The applicant did not enclose the required link document for site under reference while seeking permission.
3. The applicant has to submit certificate from Tahsildar, Visakhapatnam (Urban) to the effect that the site under reference is not a Government Land and that the land belongs to applicant only.
4. The applicant has to submit the Urban Land Ceiling clearance certificate, from the Competent Authority, for the site under reference.
The applicant is directed to fulfil the above requirements, before the GVMC, can consider the request of the applicant.'
15. This was questioned by the petitioner in W.P.No.30225 of 2011.
16. By order dt.24-09-2012 the Writ Petition was allowed and the objections raised by the respondents for grant of permission to the petitioner were overruled.
17. Although in the Endorsement dt.18-02-2010, the objection raised was that the site of the petitioner did not form part of approved layout and it is sub divided unauthorizedly without getting the required approval from the VUDA as per the provisions of the AP Urban Authority Development Act, 1975, the said contention was rejected by this Court in it’s order dt.24.09.2012 in W.P.30225/2011. Dealing with this contention raised in the counter affidavit by the respondents, this Court in its order in W.P.No.30225 of 2011 observed as under:
'9. In so far as the question of layout not being approved is concerned, the learned counsel for the petitioner relies on Section 463-A of the Act, which enables the Corporation to levy and collect external betterment charges in such contingencies. However, the jurisdiction under the said provision is open to be exercised by the Corporation in exercise of its statutory discretion, which, of course, shall be guided by the well settled principles governing the exercise of such discretion and cannot be a matter of conclusion by an order of this Court at this stage and it has to be left to be determined by the Corporation itself.
10. Under the circumstances, the writ petition has to be disposed of with appropriate directions while setting aside the impugned endorsement in question.
11. Therefore, the endorsement from the office of the 2 respondent, dated 18-02-2010 is hereby set aside and the application of the petitioner in B.A.No.10723/09/ACP-III/G2, dated 05-06-2009 shall be duly examined and processed by respondents 1 and 2 on the petitioner submitting any link documents which may be required to be produced before the respondents and any circumstance of the plot being not part of an approved layout being considered on merits in accordance with law for appropriate action under Section 463-A of the Greater Hyderabad Municipal Corporation Act, 1955, as expeditiously as possible. The writ petition is disposed of with the above direction. No costs.'
18. But when the impugned endorsement was passed, the respondents did not consider the matter in the light of the above direction of this court. This amounts to deliberate and willful violation of the order passed by this Court.
19. In the impugned Endorsement dt.10-05-2013, it is no where mentioned that in the Master plan of Visakhapatnam allegedly framed by the VUDA on 17-11-2005, the subject property was earmarked for recreation and open space (park use). It is merely stated that site of the petitioner is earmarked for recreation and open space (park use) as per GVMC and that as per zoning regulations, residential building permissions are not permitted.
20. It is settled law that a public order should be interpreted objectively in the light of the language used in the order itself and that supplementary reasons in the shape of affidavits have to be excluded. In MohinderSingh Gill and another Vs. Chief Election Commissioner, New Delhi and others (1978) 1 S.C.C. 405), the Supreme Court held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It cautioned that otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. It relied upon the earlier judgment of the Supreme Court in the Commissioner of Police, Bombay Vs. Gordhandas Bhanji (AIR 1952 S.C. 16), wherein the Supreme Court had declared that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do and that public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. It was observed that orders are not like old wine becoming better as they grow older. This principle was reiterated recently in DipakBabaria and others Vs. State of Gujarat and others (2014) 3 S.C.C. 502).
21. Therefore, respondents are not entitled to now raise the contention in the counter affidavit that the subject land was indicated in the sanctioned master plan prepared by the VUDA on 17-11-2005 for recreation and open space (park). In this view of the matter, I am of the opinion that the decisions in Bangalore Medical Trust (3 supra) and Dr.G.N.Khajuria(4 supra) need not be considered.
22. Also in that Writ Petition, counter affidavit was filed by the respondents taking the plea that the land had not been sub divided authorizedly into plots and the plots were not regularized under the Land Regularization Scheme notified under G.O.Ms.No.92 dt.31-12-2007. Having taken such a plea, it is now not open to respondents to raise a plea in the impugned Endorsement that the plot was earmarked for recreation and open space (park). When there is no approved layout of which petitioner’s land forms a part, the respondents cannot contend that the land of the petitioner had been shown as earmarked for recreation and open space (park).
23. Neither in W.P.No.27840 of 2009 nor in W.P.No.30225 of 2011, had the respondents raised the plea that the site of the petitioner was earmarked for recreation and open space (park) in the sanctioned master plan prepared by the VUDA on 17-11-2005. No reason is assigned in the counter affidavit filed in the present Writ Petition as to why such a plea, though available to the respondents at the time when both those Writ Petitions were decided, was not raised by them.
Explanation IV to Sec.11 CPC states:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'(emphasis supplied)
24. It is settled law that the principles of constructive res judicata are applicable to cases arising under Article 226 of the Constitution of India. (Forward Construction Co v. Prabhat Mandal (1986 (1) SCC 100) and DevilalModi v. ITO (AIR 1965 SC 1150). I am of the opinion that the plea/defence that the petitioner’s property has been earmarked for recreation and open space (park) in the sanctioned master plan prepared by the VUDA on 17-11-2005 was available to the respondents in the two earlier Writ Petitions referred to supra but was not raised by them there. So the principle for constructive res judicata would apply and the respondents are precluded from raising the said plea in the present Writ Petition.
25. The stand in the impugned endorsement that as per GVMC, the subject land is earmarked for recreation/open space (park) cannot also be accepted because no material is placed on record that the 1st respondent GVMC had done so or is empowered to do so. The counter affidavit also does not state that it was 1st respondent GVMC which had done so. So this contention cannot be accepted.
26. Although in the impugned endorsement, a reference is made by respondents to W.P.No.36920 of 2012, the counter affidavit does not indicate how the petitioner is concerned with the said Writ Petition and it in fact makes no mention about the said Writ Petition at all. Even the orders, if any passed therein, are not produced before this Court by the respondents. In my opinion, the impugned Endorsement also cannot be sustained on basis of reference to this writ petition or orders therein.
27. In para 7 of the counter affidavit filed in this Writ Petition, the respondents have raised a plea that the petitioners did not produce link documents. But such a ground is not mentioned in the impugned order. In view of the judgments referred to supra in MohindherSingh Gill (7 supra) and GordhandasBhanji (8 supra) referred to above, the respondents cannot be allowed to take such a plea.
28. As regards the plea in the counter that although this Court in W.P.No.21487 and 21493 of 2000 had held on 11-09-2009 that the land in T.S.No.1196 and 1197 was not government land, the subject matter of the Writ Petitions is pending in Supreme Court and that the Government of Andhra Pradesh had filed curative petition which is pending, is concerned, mere pendency of the curative petition does not entitle the respondents to contend that land is Govt.land.
29. In this view of the matter, this Court is of the considered opinion that the respondents have been rejecting the application of the petitioner for building permission arbitrarily and have acted in violation of Article 14 of the Constitution of India. It is clear that the respondents have wrongly exercised the discretion conferred upon them by the Greater Hyderabad Municipal Corporation Act, 1955 and the exercise of such discretion appears to be mala fide.
30. In Controller and Auditor-General of India, Gian Prakash, New Delhi and another Vs K.S.Jagannadhan and another (1986) 2 S.C.C. 679), the Supreme Court has held:
'20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where
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the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.' 31. This principle was reiterated in BadrinathVs. Government of Tamilnadu and others (2000) 8 S.C.C. 395) and Destruction of Public and Private Properties in Re Vs. State of Andhra Pradesh and others (2009) 5 S.C.C. 212). 32. In view of the above principle of law and having regard to the repeated arbitrary refusal of the respondents to grant permission to the petitioner to make construction in the subject property, the Writ Petition is allowed and a Writ of Mandamus is issued directing 1st respondent to approve the application of the petitioner for grant of building permission in respect of the subject property without reference to the objections raised by the respondents in the Endorsements dt.05-06-2009, 18-02-2010 and 10-05-2013 within a period of four weeks from the date of receipt of a copy of this order. It is further directed that the respondents shall pay costs of Rs.5,000/- (Rupees Five Thousand only) to the petitioner within a period of two weeks from the date of receipt of a copy of this order. 33. As a sequel, miscellaneous petitions pending, if any, shall stand disposed of.