State Of Telangana, Repby Its ... vs Smt. Amirneni Mamatha,
2022 Latest Caselaw 1558 Tel

    THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                             AND
       THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                           WRIT APPEAL No.481 of 2017

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

        The present writ appeal is arising out of an order, dated

01.09.2016 passed in W.P.No.101 of 2016, by which the learned

Single Judge has directed the execution of a registered sale deed in

respect of a plot, which is under the ownership of the Greater

Warangal Municipal Corporation.


        The undisputed facts of the case reveal that a writ petition was

preferred by the respondent in the present writ appeal (writ

petitioner) for issuance of an appropriate writ, order or direction

directing the Greater Warangal Municipal Corporation to regularise

the extent of 300 square yards in survey No.1066 of Balasamudram,

Hanamkonda, Warangal District, which was adjoining the

respondent herein/writ petitioner's plot/house bearing House No.1-

8-239/1. The facts of the case further reveal that the Standing

Committee of the then Municipal Council of Warangal on 31.05.2003

passed a resolution resolving that any house owner, who is an

encroacher, shall be entitled for regularisation of the area under

encroachment by paying money at the rates prescribed by the

Council.

The respondent herein/writ petitioner, as reflected from the

record, was the owner of 355.55 square yards and purchased the

same vide registered sale deed dated 01.07.1999 from one

N.Sampath Rao and constructed house bearing No.1-8-239/1. The

plot adjacent to the petitioner's plot admeasuring 300 square yards

was allegedly in possession of the vendor of the respondent

herein/writ petitioner and the respondent herein/writ petitioner

came up with a case that he is also in possession of the excess land

to an extent of 300 square yards.

The respondent herein/writ petitioner contended before the

learned Single Judge that the Municipal Council has permitted in

respect of similarly placed persons to purchase the plots adjacent to

their house plots in the light of the Government Memo dated

15.11.2000 and sale deeds have been executed in respect of such

persons. The respondent herein/writ petitioner came up before this

Court stating that he is an identically placed person and therefore, in

respect of plot, which he has encroached, a sale deed should be

executed.

The facts further reveal that a detailed and exhaustive counter

affidavit was filed by the Greater Warangal Municipal Corporation

stating that the plot in question was allotted to the Greater Warangal

Municipal Corporation by the State Government with an aim and

object to sell it by conducting public auction and by no stretch of

imagination, Government property belonging to the Greater Warangal

Municipal Corporation can be allotted to a person, who is an

encroacher. It was also denied by the Municipal Corporation that the

respondent herein/writ petitioner is in possession of the plot in

question and a prayer was made to dismiss the writ petition.

In respect of the allegation that other persons have been

granted benefit by regularising the encroachment, it was stated that

the person in respect of whom regularisation order has been issued

was having a triangular plot and the plot adjacent to him was again

a narrow triangular plot and in those circumstances, the permission

for regularising the encroachment was accorded. The Greater

Warangal Municipal Corporation has filed a map in respect of the so

called identically placed person at page 67 of the writ appeal paper

book and the same reveals that in respect of a triangular plot, the

adjacent triangular plot was regularised. In respect of the other

alleged identically placed person, a sale deed is on record and the

same reveals that a small piece of land, which is a small strip, has

been regularised by the Greater Warangal Municipal Corporation.

Whereas in the present case, the plot is having an area of 300 square

yards and the respondent herein/writ petitioner wants the allotment

of plot without following the transparent process.

The other important aspect of the case is that the Greater

Warangal Municipal Corporation before the learned Single Judge

came up with a case that the property, which is subject matter of the

dispute, is a valuable property adjacent to the existing Rythu Bazar

and the Municipal Corporation intends to extend the Rythu Bazar for

convenience of public at large. Reliance has been placed upon the

judgment delivered in the case of Jagpal Singh v. State of Punjab1. The

learned Single Judge, as the benefit of regularisation was extended to

the so called identically placed persons, has allowed the writ petition

and paragraphs 14 to 17 of the aforesaid order are reproduced as

under:-

"14. Without the layout being altered showing the subject plot as a land earmarked for communal purpose or open space or park, it is not open to the 3rd respondent to show discrimination against the petitioner and refuse to alienate the area in his occupation on 'market value basis' as per the resolution passed by the Warangal Municipal Council on 31.05.2003.

15. When the 3rd respondent had executed registered sale deeds in July 2014 in favour of third parties in respect of excess lands occupied by them within the same lay out and who are similarly placed like the petitioner, the action of the 3rd respondent in denying the same benefit to the petitioner is clearly arbitrary. The distinction sought to be made by the 3rd respondent between the other persons, in whose favour it had regularised and executed sale deeds in July, 2014, and the petitioner cannot be accepted, since the shape or size of the plot is not a relevant factor for consideration for regularization.

16. The contention of the 3rd respondent that the petitioner is not in possession is belied by the letter

(2011) 1 SCC 144 (SC)

Rc.No.B/285/2009, dated 18.02.2009 addressed by Tahsildar, Hanamkonda to the District Collector, Warangal. Therefore, the said contention is also rejected.

17. Therefore, this writ petition is allowed; the 3rd respondent is directed to regularize the excess land in petitioner's occupation by executing a registered sale deed by collecting the existing market value pursuant to the resolution dated 31.05.2003 of the Warangal Municipal Council on par with other transferees of such land in respect of whom, admittedly registered sale deed documents No.3688 and 5740 of 2014 were executed by the 3rd respondent. There shall be no order as to costs."

This Court has carefully gone through the order of the learned

Single Judge and the learned Single Judge has directed execution of

a sale deed in favour of the respondent herein/writ petitioner by

collecting the existing market value in pursuant to the resolution

dated 31.05.2003. In the considered opinion of this Court, the

Government land belonging to the Municipal Corporation cannot be

allotted just for mere asking for it and a transparent process is to be

followed for allotment. Otherwise also, the Municipal Corporation has

earmarked the plot as stated earlier for extending Rythu Bazar for

the convenience of public at large. This Court cannot sit in appeal

over the decision of the Greater Warangal Municipal Corporation for

extending the Rythu Bazar and cannot direct the allotment of land

only to the petitioner without following the transparent process.

In the considered opinion of this Court, the learned Single

Judge has erred in law and on facts by directing the transfer of land

by comparing two cases, which were not in respect of identically

placed persons at all. It is a well settled proposition of law that the

State largess cannot be allotted/transferred to any person without

following due process of law (tender process/auction). This Court

dealing with the property belonging to the Greater Warangal

Municipal Corporation, which was transferred by the State

Government to it and by no stretch of imagination, the respondent

herein/writ petitioner is entitled for allotment of land without

following transparent due process of law. In case, the plea canvassed

by the respondent herein/writ petitioner for allotment of encroached

land to the adjacent plot owners is accepted, it would amount to

granting premium to the encroachers and therefore, the order of the

learned Single Judge deserves to be set aside and is accordingly set

aside.

Resultantly, the writ appeal is allowed. Pending miscellaneous

applications, if any, shall stand closed. There shall be no order as to

costs.

________________________ SATISH CHANDRA SHARMA, CJ

_______________________ ABHINAND KUMAR SHAVILI, J 28.03.2022 pln