BRIJI RAJ PERSHAD Vs. RAMA SEETHAMMA

JUDGEMENT

(1.) This writ appeal is directed against the Judgment of our learned brother P.A. Choudhary, J. Allowing W.P. No. 3968 of 1982.

(2.) There is an extent of 583.76 sq. Yards of land near cement nala, Chappal Bazaar, Belonging to the Municipal corporation of Hyderabad, the 1st respondent in the writ petition. About 4 to 5 hundred sq. Yards out of that site was earmarked by the corporation for a play ground. On a portion of the balance area of the site, the corporation constructed public latrines some time during 1930 to serve the needs of such of the local inhabitants who were not then having the facility of latrines in their huts or houses. Another portion of the balance area was recently encroached upon by one buchaiah a retired corporation employee. Buchaiah had erected some unauthorised structures in a portion of the land in his occupation even without obtaining the necessary permission from the corporation. The 2nd respondent in the writ petition is a recognised private Kinder Garten and Upper Primary school established in kachiguda area in the year 1966 with in initial strength of 40 students. The school was being conducted in three different rented buildings. By 1974 the strength of the school rose up to 400 students. The school authorities made several efforts to secure a proper single building for its purposes. As the site originally earmarked for a playground was lying vacant the neighbouring residents began to use the vacant site as a dumping ground and were thereby polluting the atmosphere the parents association of the school applied to the corporation by their letter dated 28-11-1974 to allot the vacant piece of land free of cost to the management of the school authority. The application was duly recommended by the District Educational officer. The site was jointly inspected in early 1975 by the then Minister for Health and by Mr. Luther, the then special officer of the corporation and both of them felt that some area out of the site could be considered for allotment to the school. Thereafter matters drifted till about june, 1978 when again the request for allotment was reiterated by the district Educational officer and by Mr. Venkatramaiah, an M.L.A. residing in that area. As there was still no response, the residents of the locality made a public representation in april, 1979 to the special officer, bringing to his notice that in 1930 there were very few houses and such houses were not provided with latrines of modern type and that with passage of time, all the houses adjoining the area are equipped with proper latrines and that continuance of the public latrines had become a health hazard and that they are obliged to keep the doors and windows of their houses always closed as the site was emitting bad smell and became a breeding place for mosquitoes. The then special officer took a decision to alienate the land in favour of the school on payment of Rs. 3.00 per sq. Yard and informed the Government of his decision by his letter dated 2/05/1979. The 2nd respondent school remitted the sum of Rs. 1, 752.00 towards the cost of the land and requested the corporation to execute the necessary registered document and hand over physical possession of the land to the school. Buchaiah then intervened with a representation dated 26-6-1979 stating that he initially raised a house with thatched roof after obtaining some oral permission from one krishna Reddy, the then city planner and that after the thatched house had collapsed he raised another house with bricks and mud walls and he was prepared to pay rent for the site and requested the 1st respondent to desist from the proposed action of demolition of his house. At about the same time, some other residents requested the corporation not to proceed further with the alienation in favour of the 2nd respondent but keep intact the public latrines and the playground. It was also indicated that the residents are not having the benefit of a community hall or a reading room. The subordinate corporation officials were then alerted to remove the public latrines as well as the encroachment. As maters were still being delayed, a sizeable number of local residents made a representation during September 1979 to the then chief Minister and the then special officer for ensuring the allotment of site to the school after removing the unwanted latrines and the encroachments. At about this point of time the site was inspected by the then minister for Labour before whom a local representation was made for retaining the public latrines and the Municipal playground and the Minister wanted the special officer to re-examine the matter. The special officer informed the Government that the decision earlier taken for selling the site to the school cannot possibly be revised. The special officer then placed the matter before the General body through the standing committee of the corporation and both the standing committee and council approved the proposal of the special officer to sell the land in favour of the school at Rs. 3.00 per Sq yard. The Government by its memo No. 3024/K1/78-5 M.A. dated 9-5-1980 rejected the request of the school authorities immediately, thereafter the 2nd respondent filed W.P. No. 2768/80 to quash that memo by his Judgment dated 23-6-1981 held that the decision regarding the sale was validly taken by the corporation and the impugned memo was violative of the principles of natural justice and does not purport to have been made by the Government in exercise of its revisional powers under S. 679. The learned Judge further observed that the Municipal corporation shall be free to take such further action as it thinks fit in pursuance of the aforesaid decision of the commissioner and corporation within the meaning of S. 148 (3) of the Act, and that the order in the writ petition does not preclude the Government from exercising its revisional powers according to law, if it is so advised in the circumstances of the case. The 2nd respondent was requesting the 1st respondent to execute the necessary sale deed and deliver vacant possession. As there was some delay on the part of the corporation contempt proceedings were initiated against the corporation and its officials On 4-6-1982, the public latrines were demolished and the construction made by Buchaiah was partly removed. It is in this background that the writ petition was filed by the several petitioners, questioning the authority of the corporation to demolish the pre-existing public latrines or to sell the municipal property at a low price. They made various allegations against the correspondent of the 2nd respondent school and stated that the transaction in favour of the school is a fictitious and fishy transaction and smacks of malice and corruption. The respondents in their counters questioned the standing of the petitioners to file the petition. The malice or corruption attributed to the 1st respondent was denied. The demolition of the public latrines was justified on the ground that ll the houses in and around the locality were equipped with separate private latrines and the continuance of the public latrine was no longer necessary. The open site was being used as a dumping ground and such use was hazardous to the health of the neighbouring residents. In situations where property is alienated for purposes of a school or other social public purposes, the municipal property was sold at a nominal price. There was even a case of gift of an extensive extent of acs. 5.05 made of the municipal property in favour of Ramakrishna math. Buchaiah is behind the writ petition, which is filed on 15-6-1982. Buchaiahs involvement is apparent from the fact that he filed O.S. No. 2145/82 on file of the 6th Asst. Judge city civil Court, Hyderabad, for an injunction restraining the corporation from demolishing the house he had earlier erected.

(3.) Our learned brother held that the petitioners have the locus standi to file the writ petition and that no bad faith can be attributed to the 2nd respondent. The learned Judge proceeded to decide the case on the real question whether the action of the Municipal corporation of Hyderabad in proposing to sell its land at Rs. 3.00 per sq. Yard can be justified in terms of the Hyderabad Municipal corporation Act, 1955. The learned Judge felt that as there is no decision that the public latrines were no longer required, it is not open to the corporation to remove the public latrines. The learned judge took Judicial notice of the fact that the land in the area would cost a minimum of Rs. 500.00 per sq. Yard is an outright gift though comouflaged as sale and the corporation should deal with the property as a trustee for the rate-payers and cannot alienate the same for a grossly inadequate consideration. The learned Judge accordingly declared the proceedings of the special officer dated 2-5-1979 as ultra virus of his powers under the Hyderabad Municipal corporation Act, 1955.