Telangana High Court
S. Balwantha Reddy, vs Shri Shekhar Prasad Singh on 7 June, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
W.P.No.30945 of 2016
and
C.C.No.2320 of 2016
COMMON ORDER:
Heard Sri K. G. Krishna Murthy, learned Senior Counsel appearing for Ms. K. Kiran Mayee, learned counsel for the petitioner, learned Government Pleader for Panchayat Raj appearing for respondents No.1 to 3, learned Government Pleader for Home appearing for respondent No.4 and perused the record. W.P.No.30945 of 2016
2. This Writ Petition is filed by the petitioner assailing the action of respondents, in particular respondent No.2, in not adhering to the statutory duties conferred on them and interfering with the construction activity of the petitioner over the subject property bearing House No.2-16-78 admeasuring 290 sq yards situated at Beerappagadda, Uppal Kalan, Ranga Reddy District, as being bad, illegal and contrary to the spirit of the provisions of the Statute and the rights guaranteed under the Constitution of India. The Case of the petitioner
3. Petitioner contends that he is the absolute owner and possessor of house bearing No.2-16-78 situated at Beerappagadda, Uppal Kalan, Ranga Reddy District having purchased the same 2 under a registered sale deed bearing document No. No.11671/2013, dt.30.10.2013; that the said house is in existence since over 30 years having constructed in a land admeasuring 290 sq. yards; that the said house was originally owned by one Sri G.Mallaiah; that the said G.Mallaiah had deceased on 22.01.1995; and that subsequent to the death of the original owner, legal heirs of late G.Mallaiah, i.e., the daughter-in-law, sons, and grand children of late G.Mallaih, had sold the said house to the petitioner.
4. Petitioner further contends that the existence of the said house over 30 years is evident from the fact that the same has been assessed to property tax in the name of G.Mallaiah; that on the legal heirs of the late G.Mallaiah executing a registered sale deed in favour of the petitioner vide document bearing No.11671 of 2013, the petitioner was put in possession of the same; and that the petitioner intending to construct a new house therein had demolished the old house consisting of two rooms purchased by him, and approached the GHMC authorities and obtained permission for construction of a residential building consisting of Ground + 2 upper floors.
5. It is the further case of the petitioner that on obtaining the building permission from the respondent-authorities for construction of a new house in the place of the old house, he had also obtained permission from the revenue authorities for drilling a 3 bore-well therein vide permission dt.06.06.2016; and that while drilling the bore-well on the basis of the aforesaid permission obtained on 27.08.2016, the respondent No.4, at the insistence of respondent No.2, had forcefully stopped the drilling of the bore-well claiming the subject land, in respect of which the petitioner had obtained building permission by demolishing the existing old house, is a government land belonging to the 2nd respondent.
6. It is the further case of the petitioner that the subject land, wherein the old house bearing House No.2-16-78 is situated, falls in survey No.757, and is surrounded by road on the north side and several houses on other three sides, and that the land in survey number 757 is a patta land, on which the respondents cannot make any claim and thus the action of interference by the respondents is illegal, arbitrary and high handed.
7. In support of the above said contentions, the petitioner has placed reliance Government of Andhra Pradesh v. Thummala Krishna Rao & Anr 1, Sagadapu Vijaya Vs. The State of Andhra Pradesh 2, and Voonna Bangaraju v. Government of Andhra Pradesh 3.
1 AIR 1982 Supreme Court 1081 2 2015(4) ALD 88 3 2014(3) ALD 443 4 Case of the respondents:
8. The respondents No.1 to 3 have initially filed a counter on 27.10.2016, deposed to by the 2nd respondent. By the counter- affidavit filed, the 2nd respondent had pleaded that the subject house, to which the petitioner is laying a claim on the basis of the sale deed, forms part of the land that was given to Panchayat Raj Department, wherein existing offices of the respondents are situated.
9. It is the further case of the 2nd respondent that one poor family of G.Mallaiah was sheltered with freehold rental in the subject premises, which forms part of the larger extent of land belonging to the 2nd respondent; that taking advantage of the shelter provided by the 2nd respondent to the family of G.Mallaiah during his lifetime, the executants of the sale deed have unauthorizedly registered a sale deed in favour of the petitioner vide document No.11671/2013, dt.30.10.2013; and that in the said sale deed there is no reference of the link document, under which late Mallaiah had claimed ownership of the subject premises.
10. The respondents further contend that when the petitioner sought to obtain building permission, the Assistant City Planner, Circle-2, had addressed a letter, dt.02.09.2015, to the respondents- authorities, as to whether the building permission sought for by the petitioner can be granted or not, since the three sides boundaries is 5 shown as belonging to the 2nd respondent and no link document having been submitted.
11. The 2nd respondent further contends that on receiving the aforesaid letter from the Assistant City Planner, Circle-2, the 2nd respondent authority had by letter 05.09.2015, replied to the said authority informing that the claim of the petitioner to the subject land is by way of encroachment and the title being claimed is not a valid title.
12. The 2nd respondent thereafter filed additional counter affidavit on 09.06.2018 (1st additional counter affidavit), opposing the interlocutory application filed by the petitioner to receive additional material papers.
13. By the said additional counter affidavit, the 2nd respondent had contended that the petitioner is claiming the subject property to be situated in survey No.757 of Uppal Kalan village, while the sale deed does not refer to any survey number wherein the subject property is situated.
14. The 2nd respondent by the additional counter affidavit would further contend that the subject property is situated in survey No.737/1of Uppal Kalan village; that the land in said survey number is a government land; and that the subject property is situated in survey No.737/1 as per survey report, dt.15.12.2016. 6
15. The 2nd respondent further contends that the petitioner for the first time had sought to contend by the additional material papers filed on 25.01.2018 that his vendor purchased the subject property under sada sale deed, dt.04.03.1979; and that the property, which is said to have been purchased by the legal heirs of late G.Mallaiah, as executants of the sale deed in favour of the petitioner, is in respect of house bearing No.14-161 in Survey No.737/5, and thus, the two properties are different properties, and as such no reliance can be placed on the sada sale deed.
16. It is also further contended by the respondents that the said sada sale deed cannot be considered as a link document in respect of the subject property, in as much as the sale deed executed by the legal heirs of G.Mallaiah does not make a reference to the said sada sale deed, by which late G.Mallaiah had become owner of the subject property, for it to be considered as a link document.
17. The 2nd respondent further contends that the pahanies, which are sought to be filed as additional material papers, also do not pertain to the property in question, and that the claim of the petitioner that the subject property as forming part of survey No.757, is falsified by the sada sale deed, that is sought to be brought on record by way of additional material papers, since the same mentions the property being shown there under being house bearing No.14-161 situated in survey No.737/5 of Uppal Kalan 7 village and not in survey No.757 of Uppal Kalan Village as being claimed by the petitioner.
18. The respondents further contend that since the survey report, dt.15.12.2016, clearly shows the subject property to be located in survey No.737/1, which is a Government Land as per the Gazette Notification, dt.26.09.2013, the petitioner is to be considered as an encroacher on to the subject property, which is handed over to the 2nd respondent-authority for its activities.
19. The 2nd respondent had filed another additional counter- affidavit on 27.10.2019 (2nd additional counter affidavit) opposing the additional material papers sought to be filed by the petitioner on 08.03.2019, whereby the petitioner had claimed that once again a survey was conducted on 18.06.2018, wherein the subject property has been shown as falling in survey No.757 of Uppal Kalan Village.
20. The 2nd respondent by the second additional counter affidavit had contended that the survey conducted on 18.06.2018 was for fixing boundaries of survey No.1 and was not undertaken for fixing of boundaries in respect of survey Nos.737 and 757; that the mentioning of survey No.737 and 757 in the said report relating to survey conducted on 18.06.2018 was only for fixing the contours of land in survey No.1 and as such the same cannot form a basis for the petitioner to claim the subject property to be forming part of survey No.757.
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21. The 2nd respondent further contends even assuming that the subject property purchased by the petitioner is situated in survey No.757, though the sale deed does not mention the survey number in which the subject property purchased by him is located, the said survey No.757 is situated far away from the land of the 2nd respondent, which farms part of survey Nos.737/1 and 737/5 of Uppal Kalan Village as per Ranga Reddy District Gazette, dt.26.09.2013.
22. The 2nd respondent further contends that since the petitioner had commenced drilling of bore-well by engaging machinery by encroaching on to the land belonging to the 2nd respondent, on noticing the same, the 2nd respondent-authority had approached the 4th respondent-authority and lodged a complaint and took steps to protect the land belonging to the government vesting with the 2nd respondent-authority.
23. The 2nd respondent by the counter-affidavit would further contend that the dispute being civil in nature, involving title and identification of the property in question, the same cannot be gone into under Article 226 of the Constitution of India, and that the petitioner has to work out his remedies by establishing his case that the subject property forms part of 757 and is not forming part of survey No.737/1 and 737/5 of Uppal Kalan village, and thus sought for dismissal of the Writ Petition.
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24. In support of the aforesaid contentions, learned Government Pleader for Panchayat Raj appearing on behalf of respondents No.1 to 3 had placed reliance on Swati Ferro Alloys Private Limited V. Orissa Industrial Infrastructure Development Corporation (IDCO) & Ors. 4, K.K. Saksena V. International Commission on Irrigation and Drainage and Others 5, Sathya Pal Anand V. State Of M.P. And Others 6 and M/S Real Estate Agencies vs Govt.Of Goa & Ors 7.
25. Counter affidavit on behalf of respondent No.4 is filed on 21.12.2016, wherein the 4th respondent had stated that on receiving a complaint from one Sri A. Dhananjaya Reddy, Deputy Executive Engineer, RWS&S Sub-Division, Opposite Survey of India, Prashanth Nagar, Hyderabad, on 29.08.2016 stating that the office of the 2nd respondent is situated in house No.2-16-79, Prashant Nagar, Uppal, Hyderabad, is spread in an area of Acs.3.00 guntas and that the petitioner intending to construct a building in a portion of land in admeasuring 290 sq. yards belonging to the 2nd respondent and is also trying to drill a bore well, and requested the 4th respondent to take necessary action as per law, the authorities have registered a case vide Crime No.646 of 2016, under Sections 4 2015(4) SCC 204 5 2015(4) SCC 670 6 2016(10) SCC 767 7 2012(12) SCC 170 10 447, and 427 IPC on the file of the 4th respondent and took up investigation in the matter.
26. By the counter affidavit it is also stated that for the purpose of investigation in to the case, the authorities have visited the subject property and got the matter thoroughly enquired and that the investigation is under progress.
27. By the counter affidavit it is also stated while the investigation is under progress, the petitioner, who is arrayed as accused in above mentioned crime, to divert the attention of the investigating agency not to conduct the investigation of the case in a fair and proper manner, had filed the present writ petition with untenable allegations.
28. The 4th respondent, by the counter affidavit, further contends that the allegation of the petitioner that on 27.08.2016 while drilling bore-well, the 2nd respondent with the help of 4th respondent forcefully stop the digging alleging that the proposed construction is in government land, is a false claim, and that the petitioner taking advantage of the interim order passed by this Court on 14.09.2016 is not cooperating with the investigation.
29. I have taken note of the contentions urged by the learned counsel appearing on behalf of the respective parties. 11 Consideration by the Court:
30. The issue which arises for consideration of the Court in the present Writ Petition is to the localization of the property bearing House No.2-16-78 situated at Prashanth Nagar, Uppal Kalan, Hyderabad.
31. While it is not in dispute that the petitioner had purchased the subject property bearing H.No.2-16-78 from the executants of the sale deed, who had claimed themselves to be the legal heirs of late G.Mallaiah, admittedly, does not mention the survey number wherein the subject property is situated. Further, in the said document executed in favour of the petitioner, the executants had claimed the subject property as ancestral property, and there is no reference to the sada sale deed, under which, late G.Mallaiah had purchased the subject property from its previous owner.
32. Further, it is also to be noted that in the sale deed executed in favour of the petitioner, the words "ancestral property" have been inserted in hand writing without the initials of the parties.
33. It is also on record that the sada sale deed, dt.04.03.1979, is executed on a Rs.5/- stamp paper dt.02.03.1979, and the deficit stamp duty under Indian Stamp Act, 1899, was paid on 09.02.2015, after the petitioner had purchased the subject property on 12 30.10.2013 from the executants, claiming as the legal heirs of late G.Mallaiah.
34. Further it is also to be seen that the sada sale deed, through which late G. Mallaiah claims to have purchased house with door No.14-161 consisting of two rooms from one B. Rangaiah, S/o Ramaiah, though mentions the same having purchased by B. Rangaiah, the date of purchase by him is left blank. However, the said sada sale deed, through which late G. Mallaiah claims to have purchased the subject property, clearly mentions the subject property purchased by late G. Mallaiah from B. Rangaiah to be located in survey No.737/5 without mentioning as to in which village the said property is located.
35. Further it is also to be noted that the sada sale deed, which is sought to be relied upon by the petitioner to claim that late G. Mallaiah having purchased the subject property on 04.03.1979, the plan annexed thereto, shows some interpolations with regard to the measurements on the northern boundary of the subject property and also with regard to the extent of land that is being claimed to have been purchased by late G.Mallaiah.
36. Further it is also to be noted that though the sale deed in favour of the petitioner does not mention the subject property having been located in survey No.757, and on the contrary, the sada sale deed, which is now sought to be relied upon by the petitioner as a 13 link document shows the subject property as being located in survey No.737/5, the claim of the petitioner that the subject property purchased by him duly located in survey No.757 of Uppal Kalan Village and is a patta land, on the face of it appears to be a contradictory claim, and for the said reason, the reliance placed by the petitioner on the pahanies to show that the land in survey No.757 as patta land is of no assistance nor would advance the case of the petitioner.
37. As noted above, while the petitioner is claiming the subject property purchased by him to be situated in survey No.757, the sale deed, on the basis of which the petitioner is claiming the subject land, records the boundaries of the subject property on three sides to be that of the land belonging to a Boring Company. Even in the plan annexed to the sada sale deed filed by the petitioner as additional material papers vide IA.No.2 of 2019, claiming the same as link document, shows that the subject property is bounded on three sides by the land belonging to the Boring Company, while the north boundary shown as road.
38. It is not shown to this Court that the Boring Company, whose land is shown as boundary on three sides of the petitioner's property, had land in Survey No.757, thereby disproving the claim of the respondents that the subject property forms part of survey No.737 being the government land.
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39. It is trite law that boundaries mentioned in a document would take precedence over the survey numbers in the event of dispute. [See Subba Rao Vs. Azizunnisa Begum 8, Rukmini Bai Vs. K. Mohanlal 9, Subhaga and Ors. Vs. Shobha and Ors 10,]
40. Further, since there are contradicting survey reports with respect to localization of the subject property; and since both the petitioner and the respondent herein are placing reliance on the report favoring them, it is evident that the issue involves the disputed questions of fact about identification and localization of the subject property. Such issues cannot be gone into by this Court, as has been observed by the Hon'ble Supreme Court in the case of Swati Ferro Alloys Pvt. Limited's case (4 supra) wherein the Hon'ble Supreme Court while dismissing the Civil Appeal affirming the order of the High Court has observed as under:
"18. We agree with the observation of the High Court that this matter involves disputed question of fact. Despite the same, prima facie it appears that neither original borrower nor the present appellant does any business in the land in question, except for taking loan against the land. In this background while we upheld the impugned judgment dated 18th April, 2012 passed by the Division Bench of High Court of Orissa at Cuttack in WP(C) No.16790 of 2008, we are of the opinion that the respondent-IDCO should inquire into the matter to find out as to whether the land is properly 8 MANU/AP/0273/1983 : (1985) 2 APLJ (HC) 149 9 MANU/AP/0275/2011 : 2011 (106) AIC 294 10 (2006) 5 SCC 466 15 used by one or other party for the purpose it was open or by opening different firms or companies in different names in same premises, they are availing loan mortgaging the same very land. For such inquiry the respondent-IDCO will issue notice to the 2nd respondent-Orissa State Financial Corporation, appellant-M/s Swati Ferro Alloys Pvt. Ltd., M/s Eastern Fan and any other party who may be interested. On such enquiry it will be open for the competent authority to pass an appropriate order."
41. The aforesaid position of law has also been reiterated by a Division Bench of this Court in M/s.Visweswara Infrastructure Pvt. Ltd. And others Vs. The Telangana State Industrial Infrastructure Corporation and others 11, that civil disputes cannot be gone into in a Writ Petition.
42. Thus, as the dispute involves factual controversies with respect to localization of the property being claimed by the petitioner whether is located in survey No.757 of Uppal Kalan village as being claimed by the petitioner or forms part of survey Nos.737/1 and 737/5 belonging to the respondents being the successors in interest of the Boring Company belonging to the Government, this Court is of the view that the said dispute cannot be gone into in a Writ Petition filed under Article 226 of the Constitution of India which is a summary proceeding, Therefore, this Court is of the view that it would be appropriate for the petitioner to approach a competent 11 Judgment dated 24.08.2023 in W.A. No. 697 of 2023 16 Court of Civil jurisdiction to work out his remedies, where the issue can be resolved satisfactorily after conducting regular trial and adducing evidence.
43. Insofar as the action of the respondents in trying to evict the petitioner from the subject land claiming the petitioner to be an encroacher is concerned, it is to be noted that if the respondents claim the subject property to be forming part of their land in survey Nos.737 and being a public premises, the authorities are required to initiate action to evict the petitioner under the provisions of Telangana Public Premises (Eviction of Unauthorized Occupants) Act, 1968, which provides for eviction by way of summary proceedings, since it is settled position of law that even for evicting an encroacher, due process of law has to be followed [See Yeshwant Singh v. Jagdish Singh 12].
44. In the light of the aforesaid analysis, this Court is of considered view that the claim of the petitioner that the respondent- authorities are interfering with his proposed construction on the basis of the building permission obtained from the GHMC authorities in respect of the land admeasuring 290 sq. yards forming party of survey No.757, cannot be gone into in the present Writ 12 AIR 1968 SC 620 17 Petition, and for the said purpose the petitioner is required to approach and avail the civil remedy.
45. It is made clear that any opinion or view expressed in considering the present writ petition are only for the purpose of adjudication of the present writ petition and cannot be used as expression of opinion by this Court in the event of the petitioner availing remedies otherwise open to him in law. CC.No.2320 of 2016
46. So far as the Contempt Case registered as C.C.No. 2320 of 2016 is concerned, it is filed to punish the respondents for willful disobedience of the order of this Court dt.14.09.2016 in WP.No.30945 of 2016, whereby this Court had passed interim order in favour of the petitioner restraining the respondents from interfering with the possession of the petitioner over the subject property by constructing a wall to the subject property on the northern boundary, thereby blocking/preventing petitioner's access to the subject property,
47. Since the Writ Petition involves disputed questions of fact, at the request of the counsel for petitioner, a Coordinate Bench of this Court, vide order, dt.10.11.2017, directed the contempt case to be tagged along with the Writ Petition, and pursuant to the aforesaid direction, this Contempt Case is tagged along with the Writ Petition. 18
48. When the matter is taken up for hearing, Sri K.G.Krishna Murthy, learned Senior Counsel appearing on behalf of Ms.K.Kiran Mayee, learned counsel for the petitioner, contended that despite this Court restraining the respondents from interfering with the petitioner's property, by order dt.14.09.2016, in utter disregard of the aforesaid order, the respondents have undertaken construction of a compound wall on the northern boundary of the subject property and are thus liable to be punished for contempt.
49. The 2nd respondent, upon being served with a notice in this contempt case, had filed counter affidavit. By the counter-affidavit, it is contended that as per the survey conducted by the Assistant Director/Inspector of Survey, Survey and Land Records, Medchal- Malkajgiri District, in the presence of the petitioner, he had identified the place of the subject building to be falling in survey No.737/1 which is government land situated in Uppal Kalan village of Uppal Mandal, and that the authority in order to protect the property from further encroachment had constructed a compound wall on 29.08.2016, i.e., much before this Court passing the interim order on 14.09.2016.
50. By the counter-affidavit it is further stated that the petitioner is misleading this Court by making false allegations; that the compound wall was constructed was much prior to the order of this Court; and that the respondent-authorities have not undertaken any 19 further action against the petitioner on this Court passing the interim order dt.14.09.2016.
51. Having regard to the submissions made by the 2nd respondent by the counter affidavit filed in this case, and also having regard to the conclusion arrived at by this Court in the Writ Petition No.30945 of 2016 as indicated above, this Court is of the view that no case is made out to proceed further with the present contempt case. Conclusion:
52. Subject to the observations made as above, W.P.No.30945 of 2016 is disposed of; and C.C. No. 2320 of 2016 is closed. No order as to costs.
54. Consequently, miscellaneous petitions, if any, pending shall stand closed.
_____________________ T. VINOD KUMAR, J Date: .06. 2024.
gra 20 THE HON'BLE SRI JUSTICE T. VINOD KUMAR W.P.No.30945 of 2016 and CC.No.2320 of 2016 Dt. .06.2024 gra