THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
WRIT PETITION No.24037 of 2023
ORDER: (Per the Hon'ble Sri Justice N.V. Shravan Kumar)
Heard Mr. Botla Venkateshwara Rao, learned counsel for the
petitioners.
2. Mr. Parsa Ananth Nageswar Rao, learned Government Pleader
attached to the office of learned Advocate General for respondents
No.1 to 6.
3. Mr. Sunil B. Ganu, learned Senior Counsel representing Ms. Manjari S. Ganu, learned counsel for the respondents No.7 and 8.
4. This writ petition has been filed seeking a writ of mandamus to declare the proceedings bearing R.C.No.A/270/2023, dated 24.05.2023 issued by the 2nd respondent, District Collector, directing the 5th respondent, Regional Deputy Director, Survey and Land Records to conduct survey of the land in Sy.No.57 of Shamshiguda Village, Kukatpally Mandal and to prepare and furnish the location sketch and sub-division records for taking further necessary action, on the basis of the application filed, by Sripad Deshpande for and on behalf of the respondents No.7 and 8, to enter into the schedule property i.e., Acs.92.56 cents., out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda Village, Kukatpally Mandal, Medchal-Malkajgiri District and for taking over the physical possession of the same by HC, J & NVSK, J 2 W.P. No.24037 of 2023 fixing boundaries, without considering the objections dated 14.07.2023 and 18.07.2023 submitted by the petitioners to the respondents No.2 and 5 and without issuing any survey notice to all the land holders and decree holders in C.S.No.7 of 1958 including the petitioners herein in Sy.No.57 as required under the A.P.Survey and Boundaries Act, 1923, as illegal, arbitrary, without jurisdiction and violative of the principles of natural justice and violative of Articles 14, 21 and 300-A of the Constitution of India, 1950 also in contravention of the law laid down by this Court in the Judgments dated 16.09.2022 in W.A.No.648 of 2019 and in Akku Laxman Rao Vs. IDPL Employees Cooperative Housing Society Limited, (2021 SCC On Line TS 1893): (2021) 3 ALD 305 (DB) confirming the decision dated 10.02.2020 in W.P. Nos.39279 of 2017 and 6761 of 2018 and consequently to declare all the further and other proceedings and steps taken pursuant to the said proceedings bearing R.C.No.A/270/2023, dated 24.05.2023, as illegal and void. CONTENTIONS OF THE PETITIONERS:
5. It is the case of the petitioners No.1 and 2 that they are the absolute owners and possessors of the lands admeasuring Acs.0.25 guntas and Acs.0.29 guntas respectively, totally admeasuring Acs.1.14 guntas, out of Acs.274.33 guntas in Survey No.57 of Shamsiguda Village, having got the same from Smt. Potireddy Samrajyam, after her death on 02.05.2015 under a will deed dated HC, J & NVSK, J 3 W.P. No.24037 of 2023 17.09.2014, executed by her and registered as document No.152 of 2014 in Book-III on the file of Joint Sub-Registrar, Narasaraopet.
6. It has been submitted that the said Smt.Potireddy Samrajyam was the absolute owner and possessor of the land to an extent of Acs.1.14 guntas out of Acs.274.33 guntas in Survey No.57 of Shamsiguda Village, under the Final Decree dated 04.10.2013 in Application No.910 of 2013 in Application SR No.6722 of 2011 in C.S.No.7 of 1958 passed by this Court, being part of the item No.252 of Schedule 'A' annexed to the preliminary decree in C.S.No.7 of 1958. In terms of the directions of this Court, the Receivers-cum Commissioners identified the aforesaid extent of the land by conducting Panchanama and prepared plan by fixing the boundaries for Acs.1.14 guntas and submitted compliance report dated 25.11.2014 before this Court. The 3rd respondent-Tahsildar, under the proceedings bearing Lr.No.B/1577/2017, dated 12.08.2017, submitted to the Revenue Divisional Officer, Malkajgiri Division about the description of extents and names of the possessors of land in Sy.No.57 of Shamsiguda Village and the name of Smt.Potireddy Samrajyam, is shown at Serial No.E in the Table, at Page No.4.
7. Similarly, the Petitioner No.3 purchased land admeasuring Acs.0.11 guntas out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda Village, Kukatpally Mandal, Medchal-Malkajgiri District, under the Final Decree dated 26.06.2014 in Application No.778 of 2014 in C.S.No.7 of 1958 passed by this Court, registered as Doc.No.14789 of HC, J & NVSK, J 4 W.P. No.24037 of 2023 2014. As per the orders of this Court, the Receiver-cum- Commissioners conducted panchanama and after demarcation of the above extent of Acs.0.11 guntas, delivered the possession to the petitioner No.3 and submitted compliance report dated 01.11.2021.
8. Similarly, the petitioner No.4 was granted Final Decree dated 19.09.2013 in Application No.855 of 2013 in C.S.No.7 of 1958 to an extent of Acs.110.535 cents out of Acs.274.33 guntas under Schedule-B and Schedule-B-1, in an application filed by M/s.Anish Constructions Company and My Palace Mutually Aided Co-operative Society, the Respondents No.7 and 8 and the 4th petitioner herein was arrayed as respondent No.2 in the said application. The said final decree was registered as Doc.No.14215 of 2014 on 29.11.2014 on the file of the Joint Sub-Registrar, Ranga Reddy.
9. Thereafter, the petitioners No.1 and 5 to 7 have jointly purchased the land admeasuring Acs.3.15 guntas out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda Village with schedule of boundaries, in terms thereof, the Final Decree dated 30.12.2011 in Application No.519 of 2009 in C.S.No.7 of 1958 was passed by this Court, from the share holders under the Preliminary Decree dated 06.04.1959 in C.S.No.7 of 1958.
10. It is submitted that the petitioner No.8 originally purchased an extent of Acs.2.00 guntas out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda Village from the share holders and the same was allotted HC, J & NVSK, J 5 W.P. No.24037 of 2023 to the Petitioner No.8 by the Receivers-cum-Commissioners under the scheme of partition. But the said land was claimed by the respondents No.7 & 8. Therefore, the petitioner No.8 amicably settled the matter with them and the petitioner No.8 is allotted Acs.1.00 guntas and declared as absolute owner of the land admeasuring Ac.1.00 guntas out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda Village, which is specifically shown in the schedule and plan annexed to the Final Decree dated 19.10.2013 in Application No.856 of 2013 in C.S.No.7 of 1958 passed by this Court to which respondents No.7 & 8 were parties as respondents No.178 and 179.
11. It is submitted that the respondents No.7 & 8 also are claiming their rights under the Final Decree dated 19.09.2013 in Application No.837 of 2013 in C.S.No.7 of 1958 for an extent of Acs.92.56 cents out of Acs.274.33 guntas in Sy.No.57 of Shamshiguda Village. It is further submitted that the alleged plan attached to the registered Final Decree is bogus one and appears to have been inserted at the time of it's registration surreptitiously without being part of the final decree.
12. Thereafter, under the guise of said Final Decree with the fabricated Plan, the respondents No.7 and 8 approached this Court under Application No.930 of 2013, dated 09.10.2013 to direct the Receivers-cum Commissioners to deliver the physical possession of land to an extent of Acs.92.56 cents out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda village. However, the respondents No.7 & 8 HC, J & NVSK, J 6 W.P. No.24037 of 2023 have withdrawn thẹ said petition. It is further submitted that there was no delivery of physical possession of the land admeasuring Acs.92.56 cents under the alleged plan attached to the registered Final Decree. It is further submitted that the respondents No.7 & 8 ought to have made F-line application for conducting survey and Tahsildar is the competent authority to look into the said application under the applicable circulars and making of an application directly to the District Collector and who in turn issued the impugned proceedings directing the RDO to conduct survey that to for the purpose of delivery of possession to the respondents No.7 & 8 is illegal and without jurisdiction.
13. It is submitted that prior to the above Final Decree dated 09.10.2013, respondent No.8 filed suit in O.S.No.863 of 2007 for perpetual injunction in respect of the land admeasuring Acs.73.00 guntas in Sy.No.57 of Shamsiguda Village, on the file of the learned I Additional District Judge, Ranga Reddy with a false claim and the same was dismissed by decree and judgment dated 26.04.2011. Aggrieved by the said Decree and Judgment, Respondent No.8 preferred Appeal Suit in A.S.No.293 of 2011 before this Court, which was dismissed by Judgment and decree dated 26.08.2013. Respondent No.8 challenged the same in Special Leave to Appeal (Civil) No.29659 of 2013 before the Hon'ble Supreme Court and the same was also dismissed vide order dated 29.11.2013.
HC, J & NVSK, J 7 W.P. No.24037 of 2023
14. It is further submitted that by suppressing all the above facts, the respondents No.7 & 8 under representation dated 05.09.2023 approached the 2nd respondent District Collector with the following requests i) To delete their extent of Ac.92.56 cents out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda village from the Prohibited Properties List 22-A ii) To confirm their possession under a cover of panchanama and iii) to mutate their names in the revenue records and issue pattedarpass book and supplementary Sethwar.
15. It is further submitted that the 2nd Respondent-District Collector in collusion with the respondents No.7 & 8 without any authority and jurisdiction readily entertained and considered its application under Endorsement No.E1/1985/2022 dated 01.03.2023 by recording their name in the Dharani to an extent of Acs.92.56 cents without verification and enquiry, the 3rd respondent -Tahsildar and Joint Sub-Registrar, Kukatpally permitted for registration of the documents i.e., Development Agreement cum GPA bearing Doc.Nos.1/2023 and 2/2023.
16. It is further submitted that the collusion between the official and unofficial respondents is evident from the fact that the 2nd respondent District Collector while permitting registrations in respect of Acs.92.56 cents recorded the name of the Government for the remaining extent of Acs.182.11 guntas without entering the names of the other Final Decree holders in Sy.No.57 of Shamsiguda Village in C.S.No.7 of 1958, including the petitioners herein illegally in HC, J & NVSK, J 8 W.P. No.24037 of 2023 an arbitrary manner and contrary to the dismissal of the claim of the Government on the subject lands by the Hon'ble Suprene Court repeatedly in the orders dated 01.08.2022 and 23.08.2022, only with a view to facilitate the survey without notice to any of the land owners.
17. It is further submitted that the Respondents No.7 and 8 under the guise of survey and with the active collusion and support of the revenue and survey authorities, are trying to grab the petitioners land, without any right, title and interest much less possession. Therefore, the petitioners made applications dated 14.07.2023 and 18.07.2023 and approached the 2nd Respondent District Collector with a request to direct the survey authorities to stop the survey for fixing the boundaries to an extent of Acs.92.56 cents out of Acs.274.33 guntas in Sy.No.57 of Shamsiguda Village, without notice to the land holders but the respondent authorities without considering the objections and without any notice to the petitioners are trying to conduct survey without any survey marks, Tippons etc. It is the specific contention of the petitioners that if the survey is continued by fixing the boundaries for the purpose of delivery of possession to the Respondents No.7 & 8, the respondents may dispossess the petitioners from the possession of aforesaid extents of lands which are in their physical possession pursuant to the reports submitted by the Receivers-cum- Commissioners in the C.S.No 7 of 1958 and that they would be put to serious loss and irreparable hardship.
HC, J & NVSK, J 9 W.P. No.24037 of 2023
18. It is further submitted that the impugned proceedings issued by the District Collector, who is not the competent authority, in respect of the survey is thus void and cannot have any consequence. Any proceedings initiated and the steps taken pursuant to the said proceedings are also illegal and are liable to be declared as without any authority. The respondents by bringing the JCB have even illegally demolished the shed structured by the petitioner No.1 in the land inherited under the will highhandedly on 18.08.2023 under the guise of survey without having any authority and are threatening to dispossess the petitioners under the guise of survey on the basis of the impugned proceedings issued by the District Collector, hence the petitioners filed the present writ petition.
CONTENTIONS OF THE RESPONDENTS:
19. On behalf of the respondent No.6, Assistant Director, Survey and Land Records, while denying the averments of the petitioners, counter affidavit has been filed, inter alia, stating that a representation dated 19.05.2023 is made by the respondent No.8, to the District Collector, Medhcal-Malkajgiri, requesting to transfer the schedule property from Notional Khata to Patta and to carry out corrections in Dharani Portal. Based on the said application and after conducting enquiry the District Collector was pleased to recommend for mutation of the land admeasuring Acs.92.22 guntas in their names and directed the concerned to conduct a survey for fixing up the schedule property by metes and bounds in accordance with Traverse Survey of HC, J & NVSK, J 10 W.P. No.24037 of 2023 Shamshiguda village. It is further submitted that Mr.Sripad Deshpande submitted an application dated 05.09.2022 on behalf of the respondent No.8 for de-notification from prohibited properties list and effect mutation in revenue records and the said application was referred to the Government by the District Collector vide letter dated 21.10.2022 and thereafter, permission for de-notification of land admeasuring Acs.92.56 cents situated in Sy.No.57 was accorded.
20. It is further submitted that as per the directions of the Tahsildar, the Mandal Surveyor and Deputy Inspector of Survey Medchal-Malkajgiri conducted survey and also prepared location maps based on traverse data and village map of Sy.No.57 of Shamshiguda village, Kukatpally Mandal and the Tahsildar has forwarded the same to the Assistant Director Survey and Land Records vide letter dated 21.04.2023, who in turn forwarded the same to the District Collector vide letter dated 24.04.2023.
21. It is further submitted that as per the report of the Inspector of Survey, Survey and Land Records, and the location map, it is noticed that there is a village boundary dispute between four villages i.e. Bachupally, Shamshiguda, Baghameri and Gajularamaram villages of Medchal-Malkajgiri district. Survey No.57 of Shsmshiguda village consisting of Acs.273.33 guntas and the above villages are surrounding the said Sy.No.57 of Shamshiguda village and the land in Sy.No.57 is overlapping with the said villages.
HC, J & NVSK, J 11 W.P. No.24037 of 2023
22. The District Collector Medchal-Malkajgiri, after examining the sketches and report and noticing that it is a village boundary dispute, had vide letter dated 24.05.2023 requested the Regional Deputy Director, Survey and Land Records, Hyderabad under copy to the Commissioner of Survey Settlement and Land Records, T.S. Hyderabad to once-again conduct survey of land in Sy.No.57 of Shamshiguda village Kukatpally Mandal and to prepare and furnish the location sketch and Sub-division records for taking further necessary action. It is submitted that the Commissioner & Director, Survey Settlement and Land Records, TS., Hyderabad with reference to the proposals submitted by the District Collector and application of Sripad Deshpande submitted for demarcation of the Sy.No.57, constituted a survey team under supervision of Regional Deputy Director, Survey and Land Records, Hyderabad vide proceedings dated 05.07.2023 and 24.07.2023 and after issuing notices to all the concerned Tahsildars of said four villages have conducted survey from 12.07.2023 to 15.07.2023 and on 26.07.2023 and prepared panchanama.
23. It is further submitted that as per the letter dated 27.07.2023 addressed by the Tahsildar, Kukatpally Mandal, the petitioners are not having any title over land in Sy.No.57 of Shamshiguda village. The petitioners No.1 to 5 and 8 submitted objection petitions to survey and while enclosing the objections, Tahsildar was requested vide letter dated 24.07.2023 to offer remarks upon title and possession of the HC, J & NVSK, J 12 W.P. No.24037 of 2023 objections. The Tahsildar, Kukatpally vide reference dated 27.07.2023 reported that as per the revenue records none of the objection petitioners are having any legal title over Sy.No.57 of Shamshiguda village.
24. It is further submitted that this Court in Application No.837 of 2013 in C.S. No.7 of 1958 passed final decree dated 19.09.2013 in favour of the respondents No.7 and 8 in respect of the subject land i.e. Acs.92.56 cents and pursuant to the representation submitted by the respondents No.7 and 8 and in compliance with the final decree dated 19.09.2013, the District Collector has issued impugned letter dated 24.05.2023. The Special Commissioner and Director, Survey, Settlements and Land Records, has issued a circular dated 25.07.2001 with regard to the procedure to be followed for conducting survey and the District Collector followed the said procedure in the instance case and accordingly, conducted the survey.
25. On behalf of the respondent No.8, while denying the averments of the petitioners, counter affidavit has been filed, inter alia, stating that this respondent along with M/s Anish Construction Company respondent No.7 acquired the subject property i.e. Acs.100.00 together in Sy. No.57 of Shamshiguda village under an Assignment Deed dated 16.09.2000 executed by the legal heirs of Late Nawab Moinuddowla Bahadur. The aforementioned subject land is a part of Item No.252 of Schedule "A" appended to the Compromise Decree in Partition Suit. It is submitted that vide order dated 10.10.2000 this HC, J & NVSK, J 13 W.P. No.24037 of 2023 Court was pleased to allow application No.1460 of 2000 in C.S. No.7 of 1958 filed by this respondent to recognize the Assignment deed dated 16.09.2000. By way of execution proceedings bearing E.P. No.38 of 2002, possession was handed over to this respondent on 28.11.2002 by the Court bailiff from the erstwhile family members of the Paigah who were the parties to the suit, and the possession has continued to be with this respondent uninterruptedly. The E.P. No.38 of 2002 was closed on 23.01.2003 and thus proceedings have attained finality.
26. It is further submitted that the predecessors-in-interest i.e. legal heirs of Late Nawab Moinuddowła Bahadur [Asman Jahi Paigah) had also executed a Conveyance Deed dated 03.08.2003 in favour of this respondent and M/s. Anish Construction Company conveying the property with specific boundaries which was specific to Shamshiguda Village, which is the property in the present case.
27. It is further submitted that an application No.837 of 2013 was filed in C.S. No.7 of 1958 by the respondents No.7 and 8 herein for passing of final decree in their favour in respect of land admeasuring Acs.92.56 cents and the said application was allowed by granting final decree dated 19.09.2013 in Application No.837 of 2013 declaring that the respondents No.7 and 8 as absolute owners and possessors of Acs.92.56 cents in Sy.No.57 of Shamshiguda village.
HC, J & NVSK, J 14 W.P. No.24037 of 2023
28. It is submitted that the then State of Andhra Pradesh was a party to the Application No.837 of 2013 and had no objection in passing of the final decree. The then State of Andhra Pradesh challenged the said order in OSA (SR) No.3744 of 2014 and the same was dismissed. However, the orders in OSA SR No.3744 of 2014 passed by this Court were carried in an appeal before the Hon'ble Supreme Court vide SLP (C) No.13454-13456 of 2022 and the Hon'ble Supreme Court was pleased to dismiss the said SLP filed by the State of Telangana vide its order dated 01.08.2022. Therefore, even the Hon'ble Supreme Court has confirmed the title of the respondents No.7 and 8.
29. It is further submitted that the petitioners No.1, 5 to 7 appears to have illegally purchased the land under the unregistered Agreement of Sale from the shareholders under the compromise decree and their possession is yet to be confirmed as EP filed by them in application No.488 of 2012 is pending and no orders were passed in the said application and the panchanama conducted is misconstrued and improper.
SUBMISSIONS OF THE LEARNED COUNSEL:
30. The learned counsel for the petitioners while reiterating the writ averments submitted that the respondent No.8 has filed a suit in O.S. No.863 of 2007 on the file of the I Additional District Judge, Ranga Reddy District for perpetual injunction in respect of 73 acres of land in Sy.No.57 of Shamshiguda village Balanagar Mandal and the HC, J & NVSK, J 15 W.P. No.24037 of 2023 said suit was dismissed. Thereafter, the respondent No.8 preferred an appeal in A.S. No.293 of 2011 and this Court by order dated 26.08.2013 dismissed the appeal. In the said appeal, the Division Bench observed that "As of now, the applications are still pending and they need to be dealt with, duly taking into account the directions and guidelines issued by the Division Bench of this Court in O.S.A. No.58 of 2002. Therefore, we find that the appellant is not vested with any right, title or interest over the suit schedule property as the things stand now." Further, it is also held that "with due respect to the Bench, which passed the order in Application Nos.1459, 1460 and 1461 of 2000, we are of the view that once the common orders passed on 20.10.2000, as well as the consequential proceedings based on that are specifically set aside in O.S.A. No.58 of 2002, and the question of the appellant being in possession of any land does not arise. If such a view is taken, it amounts to recognition of the violation of the judgment, rendered by a Division Bench of this Court in O.S.A. No.58 of 2002." Accordingly, the appeal was dismissed. Eventually, he prayed to pass appropriate orders.
31. The learned Senior Counsel Sri Sunil Ganu, while reiterating the averments made in the counter affidavit filed on behalf of the respondent No.8, submitted that the petitioners No.1 and 2 are claiming the land in an extent of Ac.1.14 guntas under will deed and unregistered agreement of sale dated 09.05.2006, which was validated on 12.09.2011 and on the basis of final decree application No.910 of HC, J & NVSK, J 16 W.P. No.24037 of 2023 2013. It is further submitted that in an Application SR No.5357 of 2015 in C.S. No.7 of 1958, the Division Bench of this Court on 23.03.2023, while permitting the applicants to bring on record legal representatives of respondent No.1, directed that until further orders, there shall be stay of order dated 19.09.2013/04.10.2013 passed in Application No.910 of 2013 in Application SR No.6722 of 2011 in C.S. No.7 of 1958. Further it is submitted that the State has also filed OSA. No.8 of 2018 against the order dated 19.09.2013 passed by this Court in Application No.856 of 2013 in C.S. No.7 of 1958 and the Division Bench of this Court vide order dated 02.01.2023 stayed the operation of the orders passed in Application No.856 of 2013 in C.S. No.7 of 1958 date 19.09.2013. He would further submit that the petitioners cannot claim any manner of right based on unregistered sale deeds and that they have approached this Court with unclean hands and in view of the fact that the subject survey has already been conducted and completed and the cause in this writ petition does not survive.
32. The learned Government Pleader appearing on behalf of the official respondents submitted that there are serious disputes pending and that in the impugned order dated 24.05.2023 directions of the District Collector is only an internal communication, which cannot be challenged in a writ petition and that the District Collector direction was to implement the orders of the Hon'ble Supreme Court dated 23.08.2022 in Civil Appeal No.5784 of 2022 (SLP) Civil No.7015 of HC, J & NVSK, J 17 W.P. No.24037 of 2023 2022 and also for demarcation of the village boundary disputes and survey was also conducted as stated hereinabove. ANALYSIS:
33. On a perusal of the impugned order dated 24.05.2023 a reference has been taken to the earlier Court orders, the inter se communication and necessary directions were given for corrections in the revenue record for implementation of the orders of the Hon'ble Supreme Court and also referred that the Inspector of Survey, Survey and Land Records Medchal, Malkajgiri district has reported that as per remarks the survey was conducted and prepared the location sketch pertaining to land Sy.No.57 at Shamshiguda village Kukatpally mandal. It is further referred that as per the report of Inspector of Survey, Survey and Land Records, there is a village boundary dispute between the said four villages. Only a reference of the representation made by the 8th respondent has been taken and ordered for conducting comprehensive survey of four villages and to prepare and furnish location sketch and sub-division records.
34. During the course of arguments the learned counsel for the petitioners referred a circular dated 25.07.2001 and this Court on 08.09.2023 made the following observations:
"Mr. Botla Venkateswara Rao, learned counsel for the petitioners.
Mr. Sripathi Santosh Kumar, learned Special Government Pleader attached to the learned Additional HC, J & NVSK, J 18 W.P. No.24037 of 2023 Advocate General for the State of Telangana representing respondents No.1 to 6.
Mr. Sunil B.Ganu, learned Senior Counsel for respondent No.8.
In this writ petition, petitioner has assailed the validity of the order dated 24.05.2023, by which Collector and District Magistrate, Medchal-Malkajgiri District (respondent No.2) has directed Regional Deputy Director, Survey and Land Records (respondent No.5) to conduct the survey of the land in Survey No.57 situated at Shamshiguda Village, Kukatpally Mandal and to prepare and furnish the location in sketch and sub-division records for taking further necessary action.
The challenge is made on the following grounds:
(1) Collector and District Magistrate has no jurisdiction to direct the Regional Deputy Director, Survey and Land Records to conduct survey. It is argued that by virtue of Circular dated 25.07.2001 issued by the State application, can Government, Tahsildar alone, on an application, can direct survey and Mandal Surveyor alone can conduct survey.
(2) Alternatively, it is submitted that in the garb of survey, possession of the land cannot be taken.
(3) The suit seeking the relief of permanent injunction namely O.S.No.863 of 2007 fled by respondent No.8 has been dismissed and the aforesaid decree has been affirmed in appeal by a Division Bench of this Court vide judgment and decree dated 26.08.2013 passed in A.S.No.293 of 2011. Therefore, respondents No.7 and 8 have no right in law to seek survey of the land bearing HC, J & NVSK, J 19 W.P. No.24037 of 2023 Survey No.57 situated at Shamshiguda Viliage, Kukatpally Mandal.
However, when a query was put to learned counsel for the petitioners with regard to Circular dated 25.07.2001 issued by the State Govenment, learned counsel for the petitioners prays for an adjournment to enable him to place on record the aforesaid Circular.
List on 15.09.2023."
35. Subsequently, the said circular dated 25.07.2001 was placed on record. The said circular was issued by the office of the Special Commissioner and Direcotr, Survey Settlements and Land Records, A.P. Hyderabad. The said circular pertains to the demarcation of the lands on the petitions filed by the private parties. Though a specific plea was taken by the respondent No.6 that the District Collector has followed the procedure in terms of the said circular, the petitioner had not chosen to file reply to that extent and in the absence of the same, questioning the jurisdiction of the Collector and District Magistrate to direct the Regional Deputy Director, Survey and Land Records to conduct survey is not sustainable. That apart, the impugned proceedings dated 24.05.2023 issued for implementation of the orders of the Hon'ble Suprme Court dated 23.08.2022 in Civil Appeal No.5784 of 2022 (SLP Civil No.7015 of 2022) and to carry out a comprehensive survey of the lands as there is a village boundary dispute between the four villages i.e. Bachupally, Shamghiguda, Baghameri and Gajularamaram villages in Medchal-Malkajgiri district HC, J & NVSK, J 20 W.P. No.24037 of 2023 including the subject survey No.57 of Shamsiguda village. The subject survey has already been conducted by the authorities between 12.07.2023 and 26.07.2023 and thereafter, till date no consequential orders have been passed thereon.
36. Further, the learned counsel for the petitioners placed reliance in the case of Trinity Infraventures Limited and others Vs. M.S. Murthy and others 1 at relevant para 124, which reads as under:
"124. There are two more aspects which highlight the abuse of the process of law in this case. They are as follows:
(i) The preliminary decree for partition was passed on 28.06.1963; the Executing Court passed an order on 29.03.1996 in E.P. No. 3 of 1996 directing the Bailiff of the Court to deliver possession of the land in Survey No. 172 of Hydernagar to the decree holder; and thereafter a final decree was passed in Application No. 517 of 1998 on 24.04.1998. Normally a final decree follows a preliminary decree and execution follows the final decree. But strangely, the final decree followed execution, in this case.
(ii) The order passed by the Executing Court on 29.03.1996 in E.P. No. 3 of 1996 directing the Bailiff of the Court to deliver possession of the land in Survey No. 172 of Hydernagar was a specimen of a unique kind. It may be recalled that an application was taken out by the Receiver-cum-Commissioner way back in 1973, in Application No. 19 of 1973, praying for a direction to the Collector to hand over possession of the lands in Survey Nos. 145, 163 and 172 of Hydernagar.1
2023 SCC OnLine SC 738 HC, J & NVSK, J 21 W.P. No.24037 of 2023 On this application, the High Court passed an order on 05.07.1974, directing the Government to hand over symbolic possession of the lands situate in Survey Nos. 145 and 163 of Hydernagar village measuring acres 220 guntas 18 and acres 175 guntas 6 respectively to the Receiver. But insofar as other lands were concerned (i.e., Survey No. 172), the Court recorded in its order dated 05.07.1974 that the Government was not even in a position to hand over symbolic possession and that therefore it is for the Receiver-cum-Commissioner to take such steps as are available in law. In other words, even symbolic possession of the land in Survey No. 172 was not possible in the year 1974, but actual possession became possible in the year 1996 after the decrees were sold by way of assignments. We do not know what magic was played by Goldstone, like a philosopher's stone16, to make this miracle possible."
37. In the said referred case, the Hon'ble Supreme Court dealt with the aspects wherein the final orders have been passed and the matter was at the stage of Execution Petition. Whereas, in the present case, admittedly, as observed hereinabove, the applications filed by the petitioners in Application No.910 of 2013 and 856 of 2013 have been stayed by the Division Bench of this Court vide order dated 23.03.2023 and 02.01.2023, respectively, and the final orders yet to be passed. Hence, the facts and circumstances of the referred case are not applicable to the present case.
38. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, HC, J & NVSK, J 22 W.P. No.24037 of 2023 we are of the considered opinion that the cause in the present writ petition does not survive for consideration of the prayer sought for by the petitioners for the reason that a comprehensive survey was already completed and no consequential orders are passed as on date. Hence, the claim of the petitioners is totally misconceived. As such, the impugned proceedings Rc.No.A1/270/2023, dated 24.05.2023 issued by the 2nd respondent, District Collector, does not warrant any interference by this Court and this writ petition is liable to be dismissed and accordingly dismissed. However, it is made clear that this Court is not expressing any opinion on the title of the parties or otherwise in the present order. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall stand closed.
___________________________ ALOK ARADHE, CJ ___________________________ N.V. SHRAVAN KUMAR, J Date: 16-11-2023 LSK