THE HONOURABLE SRI JUSTICE K. LAKSHMAN
I.A.No.1 of 2022
I.A.No.2 of 2022
&
I.A.No.4 of 2022
IN
WRIT PETITION No.22023 of 2021
ORDER:
Heard Sri P.Shiva Kumar, learned Counsel appearing for the petitioners; Sri K.Lakshmi Manohar, learned Counsel appearing for respondent No.1/Writ Petitioner- Association and Sri N.Praveen Kumar, learned Standing Counsel for the 2nd and 3rd respondents.
2. 1st respondent/Writ Petitioner-Association had filed the aforesaid Writ Petition No.22023 of 2021 to declare the action of the respondent No.3 herein in not passing any appropriate orders on the representation dated 27.04.2021 submitted by it with a request to develop the park in the land admeasuring 800 Sq.Yards situated at Sy. Nos.12,13, 14 and 15 of Medipalli revenue village, Medipalli Mandal, Medchal-Malkarjigiri District, as illegal and for a 2 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 consequential direction to 3rd respondent herein to take steps for developing of the park in the said colony.
3. The said writ petition came up for hearing on 8.11.2021, on which date, Sri N.Praveen Kumar, learned Standing Counsel appearing for the 3rd respondent herein had produced written instructions of 3rd respondent. In the said written instructions it is specifically mentioned that the said 800 Sq.Yards of land was earmarked for the purpose of park area, there is a compound wall separating 600 Sq.yards from the rest of 200 Sq.Yards and that they have no objection for development of park or children's park in 800 Sq.Yards of land. It was further stated that in due course they will see that it is available for colony residents and general public, and due to shortage of funds, they are unable to develop the park; and that as and when funds are available, the 3rd respondent will develop the park.
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KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
4. The said written instructions were placed on record. Considering the said written instructions this Court, vide order dated 08.11.2021, this Court disposed of the said writ petition directing the 3rd respondent herein to take necessary steps to protect the above said land earmarked for park from illegal encroachments and the 3rd respondent herein shall develop the said park as and when funds are available, preferably within a period of six months from the date of said order.
5. The petitioners herein filed I.A.No.1 of 2022 to recall the order dated 08.11.2021 passed in W.P.No.22023 of 2021; I.A.No.2 of 2022 is filed to suspend the said order, and I.A.No.3 of 2022 is filed to implead the petitioners as respondent Nos.3 to 5 in the writ petition as well as in I.A.No.1 of 2021.
6. This Court, vide order dated.29.06.2022 allowed the I.A.No.3 of 2022, and granted interim suspension of the 4 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 order dated 08.11.2022 in I.A.No.2 of 2022 in W.P.No.22023 of 2021.
7. The 1st respondent-Association had filed I.A.No. 4 of 2022 to vacate the interim order dated 29.06.2022 passed in I.A.No.2 of 2022 in W.P.No.22023 of 2021. CONTENTIONS OF THE PETITONERS:
8. Originally one Smt.Mogulla Yadamma was the absolute owner and possessor of Ac.5.03 guntas of land in Sy.Nos.12,13, 14 and 15 of Mediaplly village of Ranga Reddy District. She had sold the property to late Odapalli Pandurangam under registered sale deed No.6137 of 1978 dated 09.01.1978.
9. During his life time, Sri O.Pandu Rangam had converted the said land into residential plots (77 in number of different sizes ) by obtaining lay out from the then Gram Panchayath dated 18.09.1979. He had sold only 5 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 few plots to most of his relatives through General Power of Attorney holder and ownership of the remaining plots are still with his legal hires i.e. Smt. Manjula Odapalli and Sri Dilto Purcnahdnadra Odapalli. In the said lay out, an extent of 200 Sq.Yards was earmarked for park while 1412 Sq.Yards were left for temple, which is still in an open place, meant for temple. The said Pandurangam Odapalli died on 26.10.2009 leaving behind the aforesaid legal heirs. After his demise, the aforesaid legal heirs have been in possession and enjoyment of the remaining plots.
10. 1st petitioner is claiming that he is the absolute owner and possessor of plot No.18/A admeasuring 200 Sq.yards covered by Sy.Nso.12 to 15 of Mediapalli village of Ghatkesear Mandal of Ranga Reddy District on the strength of sale deed No.10725 of 2014 dated 30.12.2014. Likewise the 2nd petitioner is claiming that she is the owner and possessor of plot No.25/A admeasuring 200 Sq. Yards of very same survey numbers and village on the strength of 6 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 registered sale deed No.10726 of 2014 dated.30.12.2014. The 3rd petitioner is also claiming that he is the owner and possessor of plot No.24/A admeasuring 200 Sq.yards of very same survey numbers and village on the strength of document Nos.10727/2014 dated 30.12.2014.
11. All the above three petitioners are claiming that they have purchased the aforesaid plots from Smt.Manjula Odapalli and another. It is further contention of the petitioners that they have obtained permission from Mediplli Gram Panchayath for construction of compound wall along with two rooms. Though they have obtained permission for construction of two rooms and compound wall they have raised only compound wall. They have filed a suit vide O.S.No.28 of 2015 against the then Gram Panchayath, Mediaplly, for perpetual injunction, and the said suit was decreed on 16.05.2016. They have also applied for regularization of their plots under Land 7 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 Regularization Scheme in 2020 and they have also paid necessary charges.
12. According to the petitioners, on 02.04.2022, the 3rd respondent/Municipality deputed its Officers along with the workers and a JCB and illegally demolished the compound wall. They came to know that, under the guise of order dated 08.11.2021 passed by this Court, the 3rd respondent is trying to convert the said property in to the park. They have submitted representation dated 04.04.2022 to the 3rd respondent along with the documents requesting them not to proceed with any construction activities over the said property. On receipt of the said representation, the 3rd respondent had fixed the date of hearing as 02.05.2022. According to them, only 200 Sq.Yards of land was earmarked for the purpose of park, and 1452 Sq.Yards for the purpose of temple. Even then, the 1st respondent/writ petitioner is trying to grab the aforesaid 800 Sq.Yards, and with the said intention, they 8 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 have filed the present Writ Petition and obtained order without making the petitioners as the parties to said writ petition. With the said submittions they have sought to recall the order dated 08.11.2021 passed by this court in WP No.22023 of 2021.
13. The 1st respondent/writ petitioner has filed common-counter affidavit in the aforesaid Interlocutory Applications, contending as follows:
The petitioners 1 to 3 are close relatives of executors of the aforesaid sale deeds viz. Smt.Manjula Odapalli and Sri Dilto Purnacandra Odapalli. The 1st petitioner is the father-in-law, petitioner No.2 is mother-in-law and petitioner No.3 is the brother-in-law of Dilto Purnachandra Odapalli. There are no house plots i.e. Plot N.18/A, 24/A and 25/A in the original lay out approved by then Gram Panchayath and they were illegally carved out of the public park area in order to grab it. The petitioners herein have created the aforesaid sale deeds on 30.12.2014 and filed 9 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 O.S.N.28 of 2015 against the then Gram Panchayath, Medipally and the Gram Panchayath had filed written statement contending that in the layout in respect of Sy.Nos.12 to 15, an extent of 1452 Sq.Yards and 800 Sq.Yards were earmarked for open space for utilization of public purpose and that the said property, owned and possessed by them, is part and parcel of the said extent. However, they have not produced any evidence oral or documentary, therefore the Court below decreed the suit on 16.05.2016.
The 1st respondent-Association is not a party to the said suit and the same is not binding on it. The then Gram Panchyath, Medipalli has erected a board by mentioning that 800 Sq.Yards of land was earmarked for park area. The District Collector, (PW), Ranga Reddy District, vide letter Memo dated 17.12.2014, directed the Panchayath- Secretary, Medipally to take necessary action for protection of park places in Sy.Nos.12,13,14, 15 and 39 of Medipalli 10 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 Gram Panchayath. Since the then Secretary of Gram Panchayath failed to protect the same, disciplinary action was initiated against her. The temple was constructed by Smt.Mogulla Yadamma and her husband Mogulla Somaiah much before purchase of Ac.4.31 gunts of land by late Pandurangam Odapalli in the year 1978 itself. Thus, the petitioners herein, by creating aforesaid three documents, trying to grab the open space earmarked for public purpose i.e. park. Therefore, there is no need to recall the order dated 08.11.2021.
ANALYSIS AND FINDING OF THE COURT
14. The aforesaid facts would reveal that, according to the 1st respondent/Writ Petitioner, an extent of 800 Sq.Yards of land was earmarked for the purpose of development of park. In proof of the same, they have filed information furnished by the 3rd respondent-Municipality dated 25.03.2021 under Right to Information Act stating that an extent of 800 Sq.Yards is a public Park in Sri 11 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 Venkateswara Colony, Medipalli, and the aforesaid layout bears the signatures of officials of Gram Panchayath, Medipally and the Executive Officer. In the said layout 1452 Sq.Yards was earmarked for the purpose of temple and 800 Sq.Yards was earmarked for the purpose of park. There are no plot Nos.18/A, 25/A and 24/A in the said layout. According to the 1st respondent/Writ Petitioner, it has submitted representation to the 3rd respondent/Municipality dated 24.04.2021 requesting to protect said land earmarked for park area and to develop the same.
15. Sri N.Praveen Kumar, learned Standing Counsel appearing for 3rd respondent-Municipality, had produced written instructions of the said Municipality, wherein it is stated that aforesaid 800 Sq.Yards of land is earmarked for the purpose of park area, but the compound wall is separating 600 Sq.Yards from the rest of 200 Sq.Yards. They have no objection to develop the park or children's 12 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 park in the said area of 800 Sq.Yards and due to shortage of funds they are not in a position to develop the same. Considering the written instructions, this court directed the 3rd respondent to take all the necessary steps to protect the land earmarked for park from illegal encroachments, shall develop the park as and when funds are available, preferably within a period of six months. Thus, according to the 1st respondent/writ petitioner and 3rd respondent/Municipality, 800 Sq.Yards of land was earmarked in the aforementioned survey numbers for the purpose of park.
16. It is relevant to note that vide Memo dated.17.12.2014, the District Collector (PW), Rang Reddy Distinct directed the Extension Officer (PR&RD), Ghatkeswar Mandal to take necessary steps for protection of the park places in Sy.Nos.12,13,14,15 and 39 of Gram Panchayath Municipality as per G.O.Ms.No.188, duly erecting notice boards.
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KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
17. The Director, Panchayath Raj and Rural Employment, Hyderabad had issued a charge Memo dated 19.06.2015 to Smt. P.Shobha Rani, the then Panchayath Secretary, Grade.I, Gram Panchayath, Medipalli on the allegation of not protecting the aforesaid park place in Sy.Nos.12 to 15 and that she had encouraged illegal encroachments. She had submitted a report on 29.10.2014 stating that no park place is encroached.
18. Perusal of the decree and judgment dated 06.05.2015 in O.S.No.28 of 2015 passed by learned I-Additional Junior Civil Judge, Ranga Reddy would reveal that it was filed by the petitioners herein against the then Gram Panchyath, Medipally. Though the written statement was filed by the then Gram Panchayath, it did not let-in either oral or documentary evidence. The petitioners herein filed certified copies judgment and decree, certified copy of four sale deeds, including their sale deeds, and original permission along with sanctioned plan dated 09.03.2000. 14
KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 The 1st respondent/Writ Petitioner is not a party to the said suit. In the written statement, the then Gram Panchayath specifically contended that the land situated in Sy.Nos.12 to 15 are made into layout since long time and all the plots were sold away by its owner leaving 10% of the land to the then Gram Panchayath, Medipally for public purpose, i.e. an extent of 1452 Sq.Yars of land earmarked marked to temple and 800 Sq.Yards was earmarked for park, and the layout granted by the Gram Panchayath would reveal the said fact. In view of the escalation of land cost, the petitioners herein are trying to grab the property earmarked for park and they have obtained registered sale deeds on their names in the month of December, 2014. Since the layout was made long back, he has kept 10% of land to Gram Panchayath for utilization of public purposes. However, the then Gram Panchayath has not let-in any oral or documentary evidence and therefore the court below, considering the evidence available on record, 15 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 decreed the suit. Thus, the said judgment and decree was not on consideration of entire facts and record.
19. The petitioners herein have also filed layout plan of then Gram Panchayath, Medipalli. Perusal of the same would reveal that it was dated 18.09.1979 and it also bears the signature of the then Gram Panchayath. As per the said layout, an extent of 200 Sq.Yards of land was earmarked for park and 1452 Sq.Yards was earmarked for temple. There are plot Nos.18/A, 24/A and 25/A in the said layout. Except for the said plots, there are no by-numbers to other plots.
20. Referring the same, Sri K.Laksmi Manohar, learned Counsel appearing for 1st respondent-Association would submit that the petitioners herein have created the aforesaid layout plan and also aforesaid three sale deeds in collusion with their close relatives, viz., wife and son of late Pandurangam Odepally.
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KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
21. It is also relevant to note that in the counter filed by the 1st respondent-Association, it has specifically contended as follows:
(a) Copy of registered sale deed bearing document No.6698/1997 dated 05.11.1997 executed by Pandurangam Odapalli S/o. Late O.Rama Swamy in favour of K.Arua W/o. K.Rama Swamy, transferring plot N.18 is filed herewith as Ex.P5. In the schedule of property, north side is mentioned as park, and not as lot No.18/A, as is being claimed by the petitioners/respondents 3 to 5.
(b) Copy of registered sale deed bearing document No.2837/2005 dated 29.03.2005 executed by Mohammed Sami Khalid S/o Dr.Mohammed Abdul Mannan, represented by his GPA Holder Dr.Mohammed Abdul Mannan S/o. Mohammed Abdul Kareem in favour of Smt.Manjula Odapalli W/o. Pandurangam Odalli, transferring plot No.25 is filed herewith as Ex.P6. In the schedule of property, north side is mentioned as park, and not as plot No.25/A, as 17 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 is being claimed by the petitioners/respondents No.3 to 5.
(c) Copy of registered sale deed bearing document No.5015/1998 dted.04.07.1998 executed by Pandurangam Odapalli S/o. Late O.Rama Swamy in favour of K.Prameela W/o.
K.Pradhumna Reddy, transferring plot N.24 is filed herewith as Ex.P.7. In the schedule of property, north side is mentioned as park, but on ground plot No.23 is situated on north side. In the schedule it is mentioned that the on south side plot No.23 is situated. So it is obvious that in the said sale deed north side and south side were interchanged by mistake. Also taking into consideration the registered sale deed in respect of plot No.19 it is obvious that there was park in existing on the southern side of plot No.24 and not lot No.24/A, as is being claimed by the petitioners/respondents No.3 to 5.
(d) Copy of registered sale deed bearing document N.5106/1998 dated 04.07.1998 executed by Pandurangam Odapalli S/o. late O.Rama 18 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 Swamy in favour of G.Padmavathi W/o. Sri Ramchander Goud, transferring plot No.19 is filed herewith as Ex.P8. In the schedule of property, south side is mentioned as park. It also filed the copies of the aforesaid sale deeds in proof of the same.
22. As per sale deed bearing No.6317 of 1978 late Odapalli Pandurangam purchased only Ac.4.31 guntas in Sy.Nos.12 to 15. Copy of the said sale deed is filed by the petitioners vide Ex.R4. In the recital of the said sale deed at para No.2 it is clearly mentioned that:
"There is temple lying on the said lands abutting the Hyderbad-Bhongir Road in an area of 12 guntas from the sale".
23. So, the property purchased under the above document was 4.31 guntas in the aforesaid survey numbers, but Ac.5.03 guntas as claimed by the pettioners. 19
KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
24. The above said facts would reveal that there is title dispute with regard to aforesaid plot numbers i.e. Plot No. 18/A, 24/A and 25/A. In the reply filed by the petitioners to the counter filed by the 1st respondent/writ petitioner, they admitted their relationship with Manjula Odapalli and Dilto Purnachandra Odapalli, wife and son of late Pandurangam Odapalli, but according to them the said relationship does not in any way affect their title, in-as- much-as, there is no such law prohibiting transfer of property between the relatives.
25. On the representation of the petitioners dated 04.04.2022, the 3rd respondent had issued notice dated 11.04.2022 requesting the petitioners to appear before him, along with the documentary evidence, for hearing. As stated above, there are serious and complicated questions of facts, which even 3rd respondent, cannot decide. 20
KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
26. Making an application under Land Regularization Scheme and obtaining permission dated 09.03.2000 from the then Gram Panchayath, Medipalli will not confer any title on the petitioners. According to the 1st respondent- Association, the petitioners have obtained the same in collusion with the then Secretary of Gram Panchayath, Medipally. It is also not in dispute that disciplinary proceedings were initiated against Smt.P.Shobha Rani, then Panchayath Secretary, on the allegation with regard to the aforesaid property.
27. In para No.9 of the reply affidavit, the petitioners have stated that "may be relflection in the said registered sale deeds one of the boundary as park, a mistake, and the 1st respondent/petitioner is trying to take advantage of the same".
Thus there are serious and complicated questions of facts and there is cloud over the title of the petitioners. 21
KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
28. Though layout was made on 18.09.1999, Sri O.Pandurangam died on 26.10.2009, the petitioners have obtained the above sale deeds only on 30.12.2014. In the layout furnished by the 3rd respondent-Municipality, nder Right to Information Act, there are no by-umbers to any plot, whereas in the layout filed by the petitioners there are by-numbers to only three plots which they are claiming. Though this court is having power to consider the facts as held by the Apex Court in ABL International Ltd. Vs.Export Credit Guarantee Corporation of India Limited1, but certainly not the serious/complicated questions of facts. As complicated questions of facts are involved in this case, this court cannot consider the same.
29. 1st respondent is not a party to O.S.No.28 of 2015. In the said suit the then Gram Panchayath, Medipalli has not let-in any evidence either oral or documentary. The then Gram Panchayath merged in 3rd respondent- 1
[(2004) 3 SCC 553 22 KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021 Municipality. There are serious and complicated questions of facts in this case, and there is title dispute between the petitioners, 1st respondent-Association and 3rd respondent, which this Court cannot decide under Article 226 of Constitution of India. Therefore, the petitioners have to approach the competent jurisdictional civil court to decide the title dispute, since there is a cloud over the title of the petitioners over the aforesaid three plots.
30. Now, the only grievance of the petitioners is that under the guise of aforesaid order dated 08.11.2021 the 3rd respondent has demolished the compund wall and trying to develop the park, therefore, they are seeking to recall the aforesaid order.
31. As stated above, this court cannot decide the title dispute between the parties. Therefore, liberty is granted to the petitioners to approach the competent jurisdictional court to decide the title of the petitioners. 23
KL,J I.A.Nos.1,2 and 4 of 2022 in W.P.No.22023 of 2021
32. In view of the above discussion, this court is not inclined to recall the order dated 08.11.2021 passed by this court in WP No.22023 of 2021.
33. Accordingly, all the above three Interlocutory Applications are disposed off, granting liberty to the petitioners to approach the competent jurisdictional Civil Court, to declare them as owners and possessors of the property.
__________________ K. LAKSHMAN, J Date: 12.10.2022 trr