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2011 Supreme(AP) 301
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE N.R.L. NAGESWARA RAO
Vijayawada Municipal Corporation, Vijayawada rep. by its Commissioner
Versus
Chagarlamudi Nageswara Rao & Another
Appeal Suit Nos.1471 & 1472 of 2002
Decided on : 01-04-2011
For the Appellant:V.L.N.G.K. Murthy, Advocate.
For the Respondents:T. Subrahmanya Reddy, Advocate.
Headnote:A) LAND ACQUISITION ACT, 1894, Section 6 - Specific Relief Act, 1963, Section 31:- Trail court’s judgment allowing the prayer for cancellation of the sale deed which were executed after receiving full consideration was received and possession was given though not registered on the ground that as per the sale deed the acquisition by the Municipality defendants was maintenance of park as per the resolution referred therein, but the Master plan does not allow for park in the place. In the appeal it was held that the contents in Exs.B-12 to B-14 clearly shows that it is a concluded contract between the parties and there was conveyance of title also though the registration was not done, evidently, as the ULC certificate is required to be produced by the plaintiffs. (Para 49)
B) A.P. TOWN PLANNING ACT - A.P. Municipalities Act, Section 42 - A.P. Municipalities (Layout) Rules, 1970, Rule 10(2) - Acquisition and Transfer of Immovable Properties Rules, 1967 Limitation Act, 1963, Article 59 – As per Acquistion and Transfer of Immovable Properties Rules, the plaintiff can transfer the property in question to the Municipality for the purpose of public purpose free of cost. On the other hand three sale deeds were executed though not registered, but only one sale deed was sought to be cancelled on the ground that Master plan does not allow the purpose of “park”. Even after the land was dereserved, park was being maintained. The contracts challenged are not void contracts, but voidable contract for which three years is the limitation period under Article 59 of Limitation Act.. Since the suit is filed beyond the period of three years, the trial court judgment allowing the same is not maintainable.
C) SPECIFIC RELIEF ACT, 1963, Sec. 31:- Cancellation of a contract is a matter of discretion and the same has to be exercised only where there is a cloud about the title of the individual concerned, but in the present case there is no doubt regarding the title of the plaintiff and hence trial court’s judgment granting the cancellation is not proper. (Para 33)
D) CONTRACT ACT, 1872, Sections 17 and 18:- The person claiming the contract to be voidable contract shall prove the fraud or misrepresentation or undue influence which had forced them to enter into the contract. In this case the plaintiffs themselves were aware of the Master Plan which meant the land was not meant for “park”, and in spite of that had executed the sale deed and received the full consideration. He was also aware of the other options available like the steps taken for dereservation of the plot. Hence he cannot take advantage of the situation having enriched himself unduly. It was the plaintiffs who were expected to obtain ULC certificate and produce the same for the registration of the sale deed already concluded. Having failed to do his part of the transation, they cannot seek cancellation of the concluded contract and allowed to take advantage of their default. (Para 51)
Both appeals arise out of the common judgment dated 15-07-2002 in O.S.Nos.559 of 1994 and 78 of 2001 passed by the Principal Senior Civil Judge, Vijayawada.
A.S.No.1471 of 2002 was filed against the judgment in O.S.No.559 of 1994 and A.S.No.1472 of 2002 was filed against the judgment in O.S.No.78 of 2001. The defendant in both the suits is the appellant herein.
The brief facts of the case are as under:-
Suit O.S.No.559 1994 was filed for sale proceedings held by the defendant is null and void and for possession of the suit schedule property. The schedule property is shown as Ac.0.30 cents of land equivalent to 1452 square yards situated in Block No.28, Ward No.14, R.S.NO.141/1, Mutyualampadu of Vijayawada town within specified boundaries.
The allegations in the plaint goes to show that the father of the plaintiff has inherited the land in Sy.No.141/B and in the partition between the plaintiff, his father and his brother Ramakoteswara Rao, the plaintiff has got Ac.0.30 cents to his share and a registered partition deed was executed on 24-12-1974. The earlier partition deed between the father of the plaintiff and his brothers dated 07-06-1954 was also filed. The suit schedule property is behind the railway quarters at Satyanarayana Puram and an extentof Ac.0.50 cents was acquired by the Railways from out of AC.1.40 cents owned by the father of the plaintiff. It was further pleaded that after the partition, the property of Ac.0.90 cents was put for sale and in the year 1976 the defendant informed the plaintiff and his father and brother that AC.0.90 cents of land was marked as “P”(park) in the master plan of Vijayawada and further informed that the property should be sold only to the municipality and requested the plaintiff and his other sharers to sell the said land to the defendant. Accordingly the plaintiff, his father and other brothers wrote a joint letter on 14-12-1976 offering to sell the land to the defendant as the defendant has informed that there is no other option. The plaintiff and his other family member filed a statement under Section 6(1). In the letter dated 06-03-1977 the Director of Town Planning clearly stated that the dereservation of site for public space or acquisition of site by municipality is not agreeable to the Department of Town Planning. Thereafter, the defendant addressed a letter to the Government on 28-05-1977. The defendant suppressed so many facts and misled the Government by stating that the plaintiffs along with two others are willing to sell the same to the defendant alone. Thereafter, a letter was addressed to the Collector to fix the market value for sale of the site by private negotiations. In proceedings of the Special Officer and Competent Authority, Urban Land Ceiling (ULC) in its enquiry clearly stated that the father of the plaintiff will be a non-surplus landholder and order was accordingly passed on 09-11-1997 and the same was communicated on 15-11-1977 to the defendant even then the defendant never obliged for the request of the plaintiff to sell the property to outsiders at market value.
The Collector fixed the market value @ 22/- per square yard and the defendant requested the plaintiff and others to give consent letters and to receive the amount of compensation of Rs.30,000/- and the balance will be paid only after getting the grant from the Government. Immediately sale deeds were drafted on 23-02-1979 on a nonjudicial stamp papers.
Meanwhile, the plaintiff requested the defendant when the site is not public purpose, the site may be deleted from the master plan and further requested that the plaintiff is unwilling to sell the land inevitably to the defendant for throw-away price and requested the Government to delete the schedule property from master plan. Accordingly GTOP 69/77 was issued and the land in R.S.No.141/B was deleted from the master plan and it was considered as a residential area. The land in Sy.No.141/P was also marked as “residential area” in G.O.Ms
