S. B. SINHA, C. J, J.

( 1 ) WHETHER a portion of the park can be alienated in favour of third party by the 1st respondent-Corporation is the question involved in this writ petition. FACTS :

( 2 ) THE Visakhapatnam Town Planning Trust has developed a lay out in china Waltair and has also allegedly earmarked and extent of 775. 53 sq. yards in S. No. 102, Block No. 13, Ward No. 21 for the purpose of development of a park. Allegedly a huge amount was spent for the said purpose.

( 3 ) FOR the purpose of widening Waltair main road an extent of 443. 20 sq. yards belonging to the 2nd and 3rd respondents was sought to be acquired whereupon the 2nd and 3rd respondents filed a suit marked as O. S. No. 45 of 1988 on the file of the III Additional Subordinate Judge at Viskhapatnam which was decreed directing the 1st respondent to allot a suitable alternate land to the 2nd and 3rd respondents. Allegedly pursuant to the decree in the aforementioned suit the 1st respondent has resolved in principle to exchange an extent of 775. 20 saq. yards in S. No. 102 to the 2nd and 3rd respondents which includes, according to the 1st respondent, an extent of only 419. 50 sq. yards of the site earmarked for the purpose of development of park. It is further alleged by the 1st respondent that the Government has also been addressed to accord necessary sanction in this regard. However, in the meanwhile, the 2nd and 3rd respondents filed execution petition marked as E. P. No. 719 of 1999 whereupon the 1st respondent registered the aforementioned sale deed in favour of the 2nd and 3rd respondents allegedly with a view to avoid legal complications despite protest made by the inmates of the 21st ward. The 1st respondent contends that an adjoining land has been added to the park site whereby the total extent of park site remains the same even after transferring a portion thereof on the other side to the 2nd and 3rd respondents.

( 4 ) THE learned counsel for the petitioner inter alia raised two contentions in support of the writ petition : (1) having regard to S. 148 of the Hyderabad Municipal Corporation Act which provisions are applicable in respect of the Visakhapatnam Municipal Corporation also, as the matter did not fall within the purview of sub-secs. (1) and (2), the Commissioner had no jurisdiction to release, sell or otherwise dispose of an immovable property belonging to the Corporation without previous sanction of the Corporation and the Government; (2) having regard to the fact that the land in question has been earmarked as a public park, no portion thereof could have been alienated in favour of 2nd and 3rd respondents. In support of the said contention reliance has been placed on Kalasagaram, Sec bad Cultural Assn. v. State of A. P. , (1998 AIHC 3377), M. V. Rama Rao v. Sarpanch, Gram Panchayat (2000 AIHC 694) Pal v. Municipality, Bhatinda (1994) 5 SCC 709 and Virender Gaur v. State of Haryana (1995) 2 SCC 577

( 5 ) THE learned counsel appearing on behalf of the 2nd and 3rd respondents, on the other hand, would submit that his clients have suffered for no fault on their part inasmuch as the land lawfully belonging to them is forcibly acquired for widening of the road with respect to which a suit was filed and a decree was obtained. The learned counsel would contend that the land in question has merely been classified as open space and thus there was absolutely no bar in alienating the same for another purpose. It was submitted that in terms of S. 148 of the Hyderabad Municipal Corporation Act it has the requisite jurisdiction to alienate a portion of the open space. Strong reliance has been placed on Brij Raj Pershad v. Rama Seethamma, AIR 1983 Andh Pra 118 (DB), Defence Colony Residents Welfare Association v. Dist. Collector, R. R. Dist. , 1998 (5) Andh. LD 681. The learned counsel would contend that a change in land use is permissible in terms of the provisions of the Act. Strong reliance in this connection has been placed on Mayank Rastogi v. V. K. Ba

Click Here to Read the rest of this document