The State Of Telangana vs Sri Kamal Kishore Agarwal
2023 Latest Caselaw 356 Tel

 THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                    AND
    THE HON'BLE SRI JUSTICE N. TUKARAMJI

                  WRIT APPEAL No.505 of 2022

JUDGMENT: (Per Hon'ble Sri Justice N. Tukaramji)

      Heard Mr.Harender Pershad, learned Special Government

Pleader for Revenue, for the appellants and Mr. B. Prakash Reddy,

learned Senior Counsel for the respondent.

2. This Writ Appeal has been filed challenging the propriety of

the order dated 07.04.2022 in W.P.No.35470 of 2018 passed by the

learned Single Judge whereby the appellants/respondents 1 to

4/State (hereinafter the 'appellants') were directed to deliver

possession of the property bearing Municipal Nos.5-7-232/A and

5-7-233 admeasuring 558.5 and 870 square yards respectively, in total

1,428.5 square yards situated at Aghapura, Nampally mandal,

Hyderabad (for short, the 'subject land') to the

respondent/petitioner (hereinafter, the 'respondent') within a period

of three weeks.

3.(a) The factual matrix of the adversity in brief is that, in the

setting of the respondent's claim of absolute ownership and 2 HCJ & NTRJ, WA_505_2022

possession of the subject land, the 4th appellant/Tahsildar issued a

notice on 15.11.2010 under Section 7 of the Andhra Pradesh Land

Encroachment Act, 1905 (for short, 'the Act, 1905') projecting him

as unauthorised occupant of the subject land and to vacate the

premises within three days from the date of receipt of the notice.

Challenging such notice, the respondent filed W.P.No.29010 of

2010. However, the writ petition was dismissed as infructuous as the

4th appellant/Tahsildar served notice under Section 6 of the Act,

1905.

3.(b) Thereupon, another writ, vide W.P.No.29591 of 2010 was

filed by the respondent challenging the notice under Section 6 of the

Act, 1905 wherein this Court quashed the impugned notice and

directed the 4th appellant/Tahsildar to pass speaking order by

considering the explanation of the respondent. Pursuant to the

directions, the 4th respondent/Tahsildar passed an order dated

04.03.2011 rejecting the submissions of the respondent. Thereupon,

the respondent filed an appeal before the 3rd appellant/Special

Grade Deputy Collector/Revenue Divisional Officer (for short,

'RDO'), but the same was also dismissed on 27.07.2011. In 3 HCJ & NTRJ, WA_505_2022

consequence, the subject land was taken into possession by the

appellants on 03.08.2011.

3.(c) In the circumstance, the respondent again approached this

Court in W.P.No.21906 of 2011 challenging the order of the 3rd

appellant/RDO in appeal.

3.(d) This Court considered the claim of the respondent that the

subject land originally belonged to Ahmad Ali which was purchased

by Abdul Rehman Siddique under sale deed in the year 1348F

(1938); later one Shankarlal had purchased 1900 square yards in the

year 1973 under registered sale deed on 12.12.1973 and he executed

a gift and settlement deed on 31.03.2006 in favour of the respondent

to the extent of 558.5 square yards;

And that the other part of the property originally belonged to

one Smt. Sayeedunnisa Begum, who sold 870 square yards to one

Banwarlal on 12.12.1973 under registered sale deed. Thereafter his

adopted son Surender Agarwal succeeded the property and his title

and possession over that property was declared by the Civil Court in

O.S.No.311 of 2004 by the III Additional Chief Judge, City Civil

Court, Hyderabad. He in turn executed two gift settlement deeds in 4 HCJ & NTRJ, WA_505_2022

favour of the respondent on 31.03.2006. Thus the respondent

asserted right and title over the subject land.

3.(e) Per contra, the plea of the appellants is that the subject land

falls in TS No.17 Block G, Ward No.41 of Nampally village and

mandal which was classified as 'Nil Area' without any survey number

as such it is government land.

3.(f) Having regard to these rival claims and considering the issues

whether the entries in Town Survey Land Register (for short 'TSLR')

conclusively establishes the subject land is of the government as

notified under Section 13(1) of the A.P. Survey and Boundaries Act,

1923 (for short 'the Act,1923') and whether the order of 4th

appellant/Tahsildar and the impugned order in appeal passed by the

3rd appellant/RDO and the settled legal position in Hyderabad Potteries

Pvt. Ltd. v. Collector, Hyderabad District and another[1], State of Andhra

Pradesh v. Prameela Modi and others[2], and G.Satyanarayana v. Government

of Andhra Pradesh[3], the learned single Judge in W.P.No.21906 of

2011 held that the entries made in TSLR document

______________________ [1] 2001(3) ALD 600 [2] 2005(3) ALT 379 (D.B.) [3] Laws (APH) 2014(4) 33 5 HCJ & NTRJ, WA_505_2022

itself does not confer any title unless substantiated by other

materials. Thus set aside the impugned order in appeal passed by the

3rd appellant/RDO as illegal and unsustainable under law.

3.(g) The appellants carried the matter in appeal under Letters

Patent vide W.A.No.1363 of 2017. A Division Bench of this Court

in the judgment dated 21.03.2018 held that under the writ

proceedings, this Court would not adjudicate the aspects of title and

at the same time, the government which is claiming subject land

cannot unilaterally and conclusively decide the title. That apart by

observing that the name of respondent's predecessor in interests is

being reflected in TSLR modified the order passed in W.P.No.21906

of 2011 to the extent that the status quo to be maintained for four

months so as to enable the appellants to file a civil suit if they were

advised to do so.

3.(h) In consonance with the order, the appellants filed the suit

bearing No. O.S.No.756 of 2018 on the file of the III Additional

Chief Judge, City Civil Court, Hyderabad seeking declaration of title

and permanent injunction against the respondent, wherein an

application vide I.A.No.2952 of 2018 was filed seeking ad-interim 6 HCJ & NTRJ, WA_505_2022

injunction and the same was dismissed on 19.02.2019. Against the

order, the appellants preferred Civil Miscellaneous Appeal vide

C.M.A.No.322 of 2022 (for short 'the CMA') and the same is

pending on the file of this Court.

3.(i) Meanwhile, the respondent filed the impugned writ, i.e.,

W.P.No.35470 of 2018 seeking delivery of possession of subject land

and for direction to incorporate his name in TSLR. The learned

single Judge, in the impugned order dated 07.04.2022 allowed the

petition and directed the appellants to deliver possession of the

subject land within a period of three weeks from the date of receipt

of a copy of the order. Aggrieved thereby the appellants have

preferred the present appeal.

4. Mr. Harender Pershad, Learned Government Pleader for

Revenue on behalf of the appellants would contend that the learned

single Judge erred in directing to deliver the possession of the

subject land against the settled legal position that a regular suit is the

appropriate legal remedy for settlement of the dispute relating to the

property rights. Further pleaded that admittedly the possession of

the subject land is with the appellants and in the wake of pendency 7 HCJ & NTRJ, WA_505_2022

of comprehensive suit, restoration ought not to have been ordered

in the writ petition, as the suit is the only effective remedy. Further

pleaded that restoration/granting possession of the subject land is in

the nature of a decree, which is not in the scope of the Article 226 of

the Constitution of India and the respondent should have been

directed to pursue his remedies before the civil Court. In addition,

the learned Judge should have observed that the direction of the

Division Bench in W.A.No.1363 of 2017 is that, if the appellants fail

to avail the common law remedy, the order in the writ petition

would become operative. As the appellants had filed the civil suit

giving effect to the order in W.P.No.21906 of 2011 is apparently

improper, thus, prayed for setting aside the impugned order.

5.(a) Mr. B. Prakash Reddy, learned Senior Counsel on behalf of

the respondent would submit that the appellants though filed the

suit within four months but belatedly processed the file and even the

appeal against the dismissal order in I.A.No.2952 of 2018 i.e. CMA,

was filed with delay. These aspects are explaining the conduct of the

appellants in prosecuting the proceedings. However, in spite of the

respondent furnishing a copy of this order of the writ petition and 8 HCJ & NTRJ, WA_505_2022

requested for implementation, the appellants paid deaf ear. That act

of disregard has been carried into action in a contempt case.

5.(b) Be that as it may, it is a settled position that the entry in 'G' of

TSLR would not confer any title in favour of the government. Even

otherwise once the order passed under the Act, 1905 was set aside in

writ petition and the view was affirmed in writ appeal, the appellants

should have restored the possession subject to the suit proceedings,

more so after the dismissal of the application for ad-interim

injunction. That apart, out of a total extent of 3,900 square yards of

disputed area except against the subject land, the appellants are silent

in regard to the remaining extent which is in occupation of private

individuals and even being assessed for taxes as private property.

However, in absence of any legal basis for the appellants to continue

in possession, restitution of the subject land as directed by this Court

in the impugned order is perfectly justified. Thus, the appeal has no

merit.

6. On the basis of rival pleadings and submissions, the question which arises for determination is:

                                        9                                 HCJ & NTRJ,
                                                                        WA_505_2022

"Whether the learned single Judge is justified in ordering restoration of subject land to the respondent during the pendency of the suit for declaration of title and the admitted possession of the appellants?"

7. We have gone through the materials on record and gave

thoughtful consideration to the pleadings and submissions made by

the learned counsel.

8. The facts narrated herein above are not in dispute.

Admittedly, till the appellants had taken over possession of the

subject land, on the strength of order in the Appeal passed by the 3rd

respondent/RDO, the respondent and his predecessors in interest

were in possession. This Court, by order dated 01.12.2015 in

W.P.No.21906 of 2011 had set aside the order passed in the Appeal

by the 3rd appellant/RDO and the Division Bench in W.A.No.1363

of 2017 by the order dated 21.03.2018, granted four months of status

quo to the appellants to avail their remedy under civil law jurisdiction

with a rider that, thereafter the order in the writ petition passed by

the learned single Judge, shall become operative.

9. Meaning thereby, the order passed in the writ petition i.e.,

setting aside the order of the 3rd appellant/RDO in appeal was kept

in abeyance for four months. This position is further indicating that 10 HCJ & NTRJ, WA_505_2022

the appellants, if proceeds to file suit, may secure their interests from

the Civil Court, as per law. In this course the application filed by the

appellants for ad-interim injunction against the respondent was

rejected by the trial Court vide order, dated 19.02.2014.

10. This factual position is explicating that, as on 19.02.2014,

neither the orders of the 3rd appellant/RDO dated 27.07.2011 in

Appeal nor any direction of the Civil Court are in existence

protecting the possession of the appellants over the subject land.

The appellants acquired the possession over the subject land from

the respondent basing on the conclusions in the legal proceedings

and as the foundational order became defunct, the legal stance of the

Appellants to be in possession of the subject land has no substance.

Nonetheless, the claim of the appellants is contingent on the result

of the suit for declaration of title which is pending consideration on

the file of Civil Court. Despite that, as the claim has been

preliminarily negated by the Civil Court, the appellants being

representatives of the State in rumination and fairness should have

provisionally restored the possession of the respondent contingent

on the adjudication of the suit proceedings. In contrast, insisting 11 HCJ & NTRJ, WA_505_2022

the respondent to initiate separate legal proceedings for restoration

of possession and contending that restoration cannot be directed in

the writ proceedings is found to be preposterous and unreasonable

for the reason that, when the statutory authority has not acted in

accordance with the provisions of law or acted in defiance of the

fundamental principles of judicial procedure, this Court can exercise

discretionary jurisdiction under Article 226 of the Constitution of

India. Further, the order of restitution of subject land is in

consequence of the prevailing positions of the parties in the

litigation, more particularly in the nature of restoring status-quo ante,

subject to the pending suit proceedings before the Civil Court, but

not in determination of the rights and interests.

11. In addition, on a holistic consideration of the facts and

circumstances of the case especially in the light of the claim of

continuous possession of the property by the respondent till the date

of taking over possession by the appellants and the justification

forwarded by the appellants to revoke the subject land from the

possession of the respondent is still under legal process, we are of

the considered opinion that the comparative mischief and hardship 12 HCJ & NTRJ, WA_505_2022

that would be caused to the respondent would be ampler than the

appellants, if the possession is declined. For that reason, in the

peculiar facts of the present case, no impropriety is found in the

impugned order much-less any tenable ground to interfere with it.

12. Nonetheless, it is over and again made clear that the order of

restitution of possession of the subject land to the respondent is to

restore the state of affairs prior to taking of possession by the

Appellants based on the order of the 3rd appellant/RDO but is not

an expression on merits. This direction of reinstatement neither

substantiates nor refutes the claim of the respondent or the

appellants/State. The rights and liabilities of the parties in regard to

the subject land shall be contingent upon adjudication of the

pending civil suit filed by the appellants uninfluenced by any

observation made in the writ proceedings. On account of this, the

appellants shall deliver the possession of the subject land to the

respondent, within four weeks from the date of this order.

13. For the aforesaid, in absence of merit, this Writ Appeal is

dismissed. No costs.

                                    13                      HCJ & NTRJ,
                                                          WA_505_2022

As a sequel, miscellaneous petitions pending if any, in this

Writ Appeal, shall stand closed.

___________________ UJJAL BHUYAN, CJ

_________________ N. TUKARAMJI, J Date :27.01.2023 CCM 14 HCJ & NTRJ, WA_505_2022

THE HON'BLE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE SRI JUSTICE N. TUKARAMJI

WRIT APPEAL No.505 of 2022 (Judgment of the Division Bench delivered by Hon'ble Sri Justice N.Tukaramji)

DATE:27-01-2023 CCM