The Commissioner, vs Sri G. Pandu
2021 Latest Caselaw 3495 Tel

 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                    AND
       THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY



                  WRIT APPEAL No.635 of 2018


JUDGMENT:    (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


    The present writ appeal is arising out of an order

passed by the learned Single Judge dated 06.04.2017 in

W.V.M.P.No.1199 of 2016 in/and W.P.No.36580 of 2014

and C.C.No.1509 of 2015.

    The undisputed facts of the case reveal that the

respondent       No.1     in     the       present       appeal          claiming

ownership on the strength of an Agreement of Sale has

approached this Court stating that the Greater

Hyderabad Municipal Corporation (GHMC) is encroaching

upon his property. The prayer in the writ petition is

reproduced as under:-

"Petition under Article 226 of the Constitution of India praying that in the circumstances stated in this affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus declaring the highhanded action of the Respondent No.2 to 4 in interfering with the peaceful possession of the petitioner landed property admeasuring Ac.0.13 gts in Sy.No.360/4, situated at Moulali Village, Malkajgiri Mandal, Ranga Reddy Dist, and making attempts to construct compound wall by dispossessing the petitioner from the above land without any manner of right or title as illegal, arbitrary and unconstitutional and being violation of the Art.300-A of constitution and violation of the provisions

of the Hyderabad Municipal Corporation Act and consequently direct Respondent Nos.2 to 4 not to interfere with the peaceful possession of the petitioner over the above said land and not to construct any compound wall without following the due process of law."

The GHMC has filed a detailed counter affidavit

before the learned Single Judge and it was stated that

the subject land is earmarked as an open space by the

Municipality for the purpose of septic tank, pump rooms

and children's playground at Housing Board Colony,

Moula Ali, and they have constructed a compound wall

also to protect the land. Thus, the writ petition involved

disputed questions of fact. The learned Single Judge

allowed the writ petition. Paragraphs 26 to 31 of the

order passed by the learned Single Judge in the writ

petition is reproduced as under:-

"26. Therefore, the respondents are restrained from interfering with the peaceful possession and enjoyment of the petitioner of an extent of Acre 0-13 guntas in survey No.360/4 of Moula-ali Village or attempting to obstruct any use by the petitioner of the subject land without following due process of law.

27. In the counter affidavit filed by respondents 1 to 3 in the Contempt Case, though it is contended that the Hyderabad Urban Development Authority had constructed compound wall to the one side of the subject land and the Corporation had constructed compound wall to the 2 remaining sides of the land to safeguard the land from encroachers, when this compound wall was constructed is not mentioned. Even in the affidavit filed in support of the

Writ Petition or in the Contempt Case it is not mentioned by the respondents.

28. Therefore, the respondents 2 to 4 are directed to dismantle the compound wall constructed by them within four (04) weeks from the date of receipt of a copy of this order.

29. In the facts and circumstances of the case, I am not inclined to punish the respondents 2 to 4 for Contempt of Court, subject to their complying with the above direction. It is made clear that if the above direction is not complied with, the matter will be viewed seriously and proceedings for Contempt will be revived.

30. Accordingly, the Writ Petition is allowed and the Contempt Case is closed. There shall be no order as to costs.

31. Consequently, WV.MP.No.1199 of 2016 in W.P.No.36580 of 2014 is dismissed. Miscellaneous Petitions pending if any, both in the Writ Petition and Contempt Case shall also stand closed."

The learned Single Judge has passed an order

restraining the respondents in the writ petition from

interfering with the peaceful possession and enjoyment of

the writ petitioner in respect of the subject land.

In the considered opinion of this Court, once the

title was in dispute, the writ petitioner was claiming title

by virtue of an Agreement of Sale, GHMC was claiming

title and it was stated that it is a public land, all such

disputed questions of fact could not have been decided in

exercise of jurisdiction under Article 226 of the

Constitution of India.

Resultantly, the impugned order passed by the

learned Single Judge is set aside and liberty is granted to

the respondent No.1 herein to file a civil suit wherein,

after evidence is adduced, the trial Court shall be free to

pass a judgment and decree based on the evidence

adduced by the parties. It is made clear that the

observations made by the learned Single Judge or by this

Court will not come in the way of the trial Court while

deciding the civil suit.

The writ appeal stands allowed. The miscellaneous

applications pending in this appeal, if any, shall stand

closed. There shall be no order as to costs.

___________________________ SATISH CHANDRA SHARMA, CJ

___________________________ A.RAJASHEKER REDDY, J 16.11.2021 vs