THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT APPEAL NO.1329 OF 2016
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. The present appeal is directed against an order dated
07.04.2016 passed by the learned Single Judge disposing of
W.P.No.9832 of 2016 filed by the respondents No.1 and 2/writ
petitioners with a grievance that the respondent No.4/Agricultural Market Committee (respondent No.5 in the writ petition) has encroached on their land situated in Survey No.5/2/12 of Khankhanpet Village, Kallur Mandal, Khammam District, and claiming that they were not issued any notice and the respondent No.5/contractor (respondent No.6 in the writ petition), is proceeding to dig a foundation on their land and unauthorisedly to raise a structure.
2. In the impugned order, while recording that it is not in dispute that both, the respondents No.1 and 2/writ petitioners as well as the respondent No.4/Agricultural Market Committee are claiming the subject land situated in Survey No.5 and while the respondents No.1 and 2/writ petitioners are claiming land admeasuring Ac.0.30 guntas in Survey No.5/2/12, the respondent No.4 is claiming the land in Survey No.5/2, the learned Single Judge observed that there appears to be a dispute with regard to the identification of the boundary and in W.A.No.1329 of 2016 Page 1 of 4 those circumstances, directed the appellant No.3 herein (respondent No.4 in the writ petition) to conduct a ground survey, demarcate the land of the respondents No.1 and 2/writ petitioners and the respondent No.4/Agricultural Market Committee within a fixed timeline. Further, a direction was issued that pending conducting the survey status quo shall be maintained in respect of the subject land.
3. The limited grievance of the appellants in the present case is that the aforesaid order came to be passed without affording an opportunity to them to file a counter affidavit and had that opportunity been given, they would have brought to the notice of the learned Single Judge that the respondents No.1 and 2/writ petitioners were not even the owners of the subject land, possession whereof was taken by the Government as long back as in the year 1986.
4. Mr. C.V.Bhaskar Reddy, learned Government Pleader for Revenue appearing for the appellants submits that the respondents No.1 and 2/writ petitioners are trying to take advantage of the fact that the records of the Revenue Department relating to the subject survey number had got destroyed in a fire accident that took place on 03.07.2013. He states that the respondents No.1 and 2 have also withheld material information from the Court that the subject land had already been sold by the husband of the respondent No.1 as long back as on 31.10.1991.
W.A.No.1329 of 2016 Page 2 of 4
5. Mr. G. Rajeshwar Reddy, learned counsel for the respondents No.1 and 2/writ petitioners disputes the aforesaid submission and states that the subject land continues to remain in the possession of his clients even as on date. He further clarifies that though the respondent No.4/Agricultural Market Committee was planning to construct a warehouse on the subject land, the said proposal was abandoned and it is lying vacant in view of the status quo order passed by the learned Single Judge.
6. Having heard learned counsel for the parties and examined the records, we are of the opinion that it is a fit case where the appellants ought to be granted an opportunity to put forth their case before the learned Single Judge on the aspect of the title of the subject land itself which has been questioned by them. The said facts ought to be brought on record before the learned Single Judge before any orders are passed for conducting a survey and demarcating the land on a premise that the respondents No.1 and 2/writ petitioners are the actual owners and in possession thereof.
7. Accordingly, the impugned order dated 07.04.2016 is quashed and set aside and W.P.No.9832 of 2016 is restored to its original position.
8. The Registry is directed to list W.P.No.9832 of 2016 before the learned Single Judge as per roster on 28.04.2021. The appellants shall take immediate steps to file a counter affidavit in the captioned writ W.A.No.1329 of 2016 Page 3 of 4 petition within three weeks from today with a copy to learned counsel for the respondents No.1 and 2/writ petitioners, who may file a rejoinder, if any, within three weeks thereafter.
9. The present appeal is disposed of along with the pending applications, if any.
______________________________ HIMA KOHLI, CJ ______________________________ B. VIJAYSEN REDDY, J 10.02.2021 JSU/pln W.A.No.1329 of 2016 Page 4 of 4