Syed Ali Hussain vs Smt. Pramila Modi W/O. Late Dr. ...
2023 Latest Caselaw 2859 Tel

     THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
                          AND
     THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR

              WRIT APPEAL No.648 and 1004 of 2007


COMMON JUDGMENT: (Per the Hon'ble Sri Justice N.V. Shravan Kumar)

      Mr. Ravinder Reddy, learned counsel for the appellants in

W.A. No.648 of 2007.


      Mr. V.Raja Manohar, learned counsel for the appellants in

W.A. No.1004 of 2007.


      Mr. C.Hanumantha Rao, learned counsel for the respondent

No.1/writ petitioner.

2. The appellant in W.A. No.648 of 2007 was the 7th respondent in

W.P. No.11411 of 2007 and the appellants No.2 to 8 are brought on

record as the legal representatives of deceased appellant No.1 as per

Court order dated 28.08.2003 vide I.A. No.1 of 2023 in W.A. No.648 of

2007 and the respondent No.1 herein is the writ petitioner in

W.P. No.11411 of 2007.

3. The appellants in W.A. No.1004 of 2007 were not the party

respondents in W.P. No.11411 of 2007. The Registry had numbered

the appeal in compliance with the order dated 05.09.2007 passed in

WAMP. No.1354 of 2007 in W.A. No.1004 of 2007 by this Court and

the status of the appellants were narrated as the appellants/third

party in writ petition, and the respondent No.1 herein is the writ HC, J & NVSK, J

petitioner and the respondents No.9 to 15 herein are brought on

record as legal representatives of the deceased respondent No.8 as per

Court order dated 28.08.2023 vide I.A. No.1 of 2023 in W.A. No.1004

of 2007.

4. Since these two intra Court appeals arise out of the order dated

08.06.2007 passed in W.P. No.11411 of 2007 by the learned Single

Judge, they are being disposed of by this common judgment.

5. For the sake of convenience, the parties would be arrayed as the

appellants and the 1st respondent/writ petitioner. (Hereinafter called

as "respective parties" or parties herein").

6. The 1st respondent/writ petitioner filed the W.P. No.11411 of

2007 seeking direction to the respondent Police authorities to provide

necessary protection to protect the immovable property owned by her

bearing Municipal Nos.8-2-470, 8-2-470/1 to 470/5 in Sy.No.116/3

in T.S. No.3/1/1/B 7 4, Block K, Ward 89, to an extent of Ac.1.06

guntas situated at Khairatabad village at Road No.1, Banjara Hills,

Hyderabad.

7. It is the case of the 1st respondent/writ petitioner that she

purchased the land to an extent of Acs.2.21 guntas and Acs.1.06

guntas in Sy. No.116/2 and 116/3, respectively, total admeasuring to

an extent of Acs.3.27 guntas, situated at Road No.1, Banjara Hills,

Hyderabad, and later she sold the land to an extent of Acs.2.21

guntas in Sy.No.116/2 to various purchasers and she retained the HC, J & NVSK, J

remaining land to an extent of Ac.1.06 guntas situated in

Sy.No.116/3.

8. It is submitted that the then State of Andhra Pradesh had filed a

Land Grabbing Case against the petitioner and the purchasers,

who are respondents No.1 to 8, in LGC. No.10 of 2002 on the file of

the Special Court under the Andhra Pradesh Land Grabbing

(Prohibition) Act, 1982 to declare that the Government is the absolute

owner of the said total extent of Acs.3.27 guntas. In the said case,

the Special Court vide its order dated 30.07.2004, while rejecting the

contentions of the Government, held that the Government failed to

prove that the schedule property belongs to it and whereas,

the 1st respondent/writ petitioner and her purchasers have proved

that they are the owners and pattedars of the lands in Sy.No.116/2

and 116/3 in T.S. No.3/1/A and 3/1/B as mentioned in Exs.B-12

and B-3 respectively, and the Government had recognised the title and

interest of the 1st respondent/petitioner in respect of the said land for

more than 33 years prior to filing the LGC case. Thereafter,

the Government filed W.P. No.20537 of 2004 and the 1st

respondent/writ petitioner and others filed W.P. No.19552 of 2004 on

the file of this Court and the Division Bench of this Court by order

dated 26.04.2005 uphled the order of the Special Court. Aggrieved by

the same, the State carried the matter in appeal to the Hon'ble

Supreme Court in Civil Appeal No.4606 of 2006 and the Hon'ble

Supreme Court by judgment dated 30.10.2006 dismissed the appeal.

HC, J & NVSK, J

Thus, the right, title and possession over an extent of Ac.1.06 guntas

in Sy.No.116/3 was upheld by the Supreme Court and the same is

binding on all the authorities. It is further submitted that some

antisocial elements and land grabbers started interfering with 1st

respondent/writ petitioner's possession and enjoyment over the said

land.

9. The learned Government Pleader for Home would submit that

the 1st respondent/writ petitioner made a representation on

24.05.2007 stating that some unknown persons have come to her site

on 23.05.2007 at H.No.8-2-470, 8-2-470/1 to 470/5, Road No.1,

Banjara Hills in Sy.No.116/3 and attempted to trespass into her land

with an evil intention to grab the property and threatened her servant

to vacate the land and used filthy abusive language. Therefore,

the Police registered a case in Cr.No.458 of 2007 for the offence under

Sections 447 and 506 of the Indian Penal Code, 1860 of Police Station

Banjara Hills. It is further stated that the 7th respondent also made a

complaint on 24.05.2007 stating that the land in Sy.Nos.115/3 and

115/2 of Khairatabad village belongs to late Rabia Begum and was

succeeded by her three brothers and subsequently succeeded by their

children. The 7th respondent, Syed Ali Hussain and other children of

the brothers of Rabia Begum are in possession of the said land and

the 1st respondent/writ petitioner with anti social elements trespassed

into the property on 21.05.2007 and threatened the workers of the

pattedar's family and tried to send them away. Therefore, a case in HC, J & NVSK, J

Cr.No.457 of 2007 under Sections 447 and 506 IPC was registered by

the Police Station, Banjara Hills. It is further submitted that the

property mentioned by the 7th respondent falls under Sy.Nos.115/2

and 115/3 whereas the same property as mentioned by the

1st respondent/writ petitioner falls under Sy.No.116/3, therefore,

a requisition was made to Tahsildar, Khairatabad for furnishing the

factual report.

10. The learned Single Judge having considered the above, held at

paras 7 and 8 as under:

"7. There is no dispute, insofar as the title of the petitioner is concerned, as the right, title and possession of the petitioner has been upheld by the Supreme Court, therefore, the right of the petitioner has been crystallised without any doubt whatsoever. Thus, it is the duty of the police to protect the immovable property of the petitioner from all the concerned.

8. Having regard to the facts and circumstances of the case, the respondents 3 to 6 are directed to provide necessary police protection to the petitioner to protect her property. However, if there is any dispute with regard to the boundaries, it is open for the respondents to take the assistance of the Tahsildar, Khairatabad keeping in view the order of the Special Court in L.G.C. No.10 of 2002, the orders of the High Court and the Supreme Court."

11. Assailing the same, the appellants preferred the present

appeals.

HC, J & NVSK, J

12. In the Memorandum of Grounds of Appeal in W.A. No.648 of

2007, it is submitted that the learned Single Judge ought not to have

allowed the writ petition by directing the Police to provide protection to

the writ petitioner having observed that there exists boundary dispute

with regards to the properties claimed by the appellants and the 1st

respondent/writ petitioner. It is further submitted that the learned

Single Judge ought to have seen that the 1st respondent/writ

petitioner has sold the land to extent of Acs.4.25 guntas to various

persons as such, the 1st respondent/writ petitioner is left with no land

in Sy.No.116/2 and 116/3 of Khairatabad village. The learned Single

Judge ought to have seen that the original Pattedar Smt.Rabia Begum,

the predecessor-in-interest of the appellant and other legal heirs, had

ever sold any land in Sy.No.115/3 of Khairatabad village but the writ

petitioner is claiming entire land of the late Rabia Begum illegally.

Eventually, it is submitted that by virtue of orders in the writ petition,

the respondent No.6, Assistant Commissioner of Police, is not taking

any action in Crime No.457 of 2007 lodged by the appellant and

sought to pass appropriate orders.

13. In the memorandum of grounds of Appeal in W.A. No.1004 of

2007, it is submitted that the learned Single Judge did not consider

the case of the respondent No.8, who is respondent No.7 in the writ

petition, who succeeded to the property in dispute measuring Acs.3.27

guntas from the original owner and possessor one Smt. Rabiya

Begum, which is situated in Sy. No.115/2 and 115/3 and the same HC, J & NVSK, J

are adjacent to the land in possession and enjoyment of the

appellants. Whereas, the 1st respondent/writ petitioner had

completely sold away the land to various purchasers and as such she

could not claim over any land situated either in Sy.No.116/2 and

116/3 or in Sy.No.115/2 and 115/3 and as there is no land

remaining in Sy.No.116/2 and 116/3 to substantiate the claim of the

1st respondent/writ petitioner. It is further submitted that the

appellants along with other successors are in possession and

enjoyment of the said land by constructing a compound wall and he

has also put up a notice board stating that the land belongs to him

and others and is situated in Sy.No.115/2 and 115/3. Thus,

the contentions raised in the writ petition are not considered at all by

the learned Single Judge and ordered Police protection for the

1st respondent/writ petitioner. Hence, the learned Single Judge has

failed to consider that the lands in question are private lands and

when two parties are contesting for the same, the learned Single

Judge ought to have dismissed the writ petition directing the 1st

respondent/writ petitioner to approach the competent civil Court for

the purpose of declaration of title and possession. It is further

submitted that in view of the directions given by the learned Single

Judge, the appellants cannot approach the civil Court for establishing

their right and possession as long as the protection is given by the

learned Single Judge in this case.

HC, J & NVSK, J

14. Upon a perusal of the proceedings of this Court, during the

course of admitting the appeal, this Court made certain prima facie

observations and passed the following interim order on 07.09.2007,

which reads as under:

"Sri A. Ravinder Reddy for the appellant.

Sri Ch. Hanumantha Rao for respondent No.1.

Assistant Government Pleader for Home for respondent Nos.2 to 6.

This appeal is directed against order dated 8-6-2007 passed by the learned Single Judge in Writ Petition No.11411 of 2007, whereby he ordained respondent Nos.3 to 6 (respondent Nos.4 to 6 herein) to provide necessary police protection to the petitioner's property with the rider that if there is any dispute with regard to the boundaries, it is open to the respondents to take the assistance of Tahsildar, Khairatabad keeping in view the order of the Special Court in L.G.C.No.10 of 2002, the orders of the High Court and the Supreme Court.

We have heard learned counsel for the parties and perused the record.

Prima facie, we are of the opinion that the direction given by the learned Single Judge for providing police protection to the property of the writ petitioner (respondent No.1 herein) is legally unsustainable. It is true that in the land grabbing case filed by the State, the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short, 'the 1982 Act) recorded a finding that respondent No. 1 does not fall within the definition of HC, J & NVSK, J

'land grabber and the said finding has been confirmed by the Division Bench of this Court in Writ Petition Nos.20537 and 19552 of 2004, decided on 26-4-2005 and by the Supreme Court in Civil Appeal No.4604 of 2006, decided on 30-10-2006. It is also true that while dismissing the appeal filed by the State, the Hon'ble Supreme Court observed that the State of Andhra Pradesh and its instrumentalities cannot be permitted to interfere with the peaceful enjoyment of the land by the respondents (including respondent No.1 herein), but we are prima facie of the view that Writ Petition No.11411 of 2007 filed by respondent No.1 for issue of a mandamus to the official respondents to extend police protection by deputing three Constables at her cost for the avowed object of implementing the order passed by the Supreme Court was clearly misconceived and the learned Single Judge committed a serious error by entertaining the same. Respondent No.7 in the writ petition (the appellant herein), who was impleaded as party vide order dated 8-6-2007 passed in WPMP.No.16683 of 2007, was not a party to L.G.C.No. 10 of 2002, Writ Petition No.20537 of 2004, Writ Petition No.19552 of 2004 and Civil Appeal No.5604 of 2006 and the dispute between him and the writ petitioner has nothing to do with the proceedings instituted by the State under the 1982 Act. Their Lordships of the Supreme Court did not give any direction for extending police protection to the writ petitioner in the matter of private dispute between the two parties. If respondent No.1 felt aggrieved by the so- called inaction of the concerned police authorities to register the complaint, the remedy available to her was to initiate the process envisaged under Section 200 of the Code of Criminal Procedure. For this purpose, reference can appropriately be made to the recent HC, J & NVSK, J

judgment of the Supreme Court in Aleque Padamsee v. Union of India [(2007) 6 SCC 171].

We are further of the view that in the absence of any constitutional mandate or legislative provision making it obligatory for the State to provide police protection to the private property only on the ground that there is dispute, tangible or not so tangible, between two private parties regarding title and/or possession of the property, the power conferred upon the High Court under Article 226 of the Constitution cannot be used for ordaining the State to provide police protection to the property of one or other individual.

Hence, the appeal is admitted for hearing.

WAMP.No.1298 of 2007 Sri A. Ravinder Reddy for the applicant-

appellant.

Sri Ch. Hanumantha Rao for non applicant/respondent No.1.

Assistant Government Pleader for Home for non- applicant/respondent Nos.2 to 6.

While issuing notice of the writ appeal on 23-8- 2007, the Court directed the parties to maintain status quo regarding the property in dispute without the intervention of the police at the behest of respondent No.1.

We have heard learned counsel for the parties.

Sri Ch. Hanumantha Rao, learned counsel for respondent No.1 made strenuous efforts to persuade us to hold that the direction given by the learned Single Judge does not call for interference, but we have not felt convinced.

HC, J & NVSK, J

By a separate detailed order passed today, we have admitted the appeal because we felt prima facie satisfied that the direction given by the learned Single Judge is legally unsustainable.

We are further of the view that the direction like the one impugned in this appeal is bound to put unwarranted strain on the police force and is likely to endanger the law and order situation and safety of the public. We can take judicial notice of the fact that due to acute shortage of manpower in the police department, the State and its functionaries are finding it extremely difficult to protect the people against violence by terrorists, militants and other criminals. Almost all cities in the country including the twin cities of Hyderabad and Secunderabad are facing grave problem of traffic. The manpower of 8,000 available in the twin cities is not able to regulate even the traffic, what to say of effectively investigating the criminal cases registered at various police stations. They are also not able to provide adequate support to the prosecuting agencies and, on that account, criminal justice system is adversely affected. The people of the State of Andhra Pradesh are also regularly facing threats from militant groups and a substantial number of police personnel are required to protect the lives of the people against the threats held out by militant outfits.

We have taken note of the above factors because we are prima facie convinced that the direction given by the courts to depute men in uniform (members of the police force) for providing protection to the properties of the individual will greatly erode the capability of the State apparatus, which has to work for maintaining law and order, prevention and investigation of crimes and HC, J & NVSK, J

assisting the judicial system in punishing the criminals.

For the reasons stated above, the WAMP is allowed. The operation of order dated 8-6-2007 passed by the learned Single Judge in Writ Petition No.11411 of 2007 is stayed till the disposal of the appeal.

However, keeping in view the nature of the issues raised in the appeal, we direct that the main case be listed for final hearing on September 24, 2007.

In the meanwhile, the State shall furnish the entire information sought for by the Court on 23-8- 2007.

At this stage, Sri Ch. Hanumantha Rao, learned counsel for respondent No.1 made a request that the case may be taken up on 25-9-2007 instead of 24-9- 2007. His request is accepted."

15. In the case of Aleque Padamsee, the Hon'ble Supreme Court

disposed of the writ petitions finally with the following directions,

which are considered relevant for the purpose of these Appeals:

"(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and (2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions."

16. The learned counsel Mr. C.Hanumantha Rao, appearing for the

respondent No.1/writ petitioner placed reliance on the order passed in

W.A. No.330 of 1982 on 14.06.1982 in the case of Satyanarayana HC, J & NVSK, J

Tiwari Vs. S.H.O. P.S. Santhoshnagar, Hyderabad and others 1

wherein at paras 6 and 7 held as under:

"6. Mr. Jagannadha Rao, learned counsel, however, contended that the said decision is an authority for the position that the civil courts can under inherent powers, grant such directions under Section 151 C.P.C. but a writ of mandamus, does not lie. We are unable to agree with this contention. Section 151 CPC reserves the inherent power of the Court. Articles 226 of the Constitution goes a step further and vests extraordinary jurisdiction in the High Court of a State to issue not only a writ of mandamus but also appropriate writs, directions or orders for the enforcement of any of the right conferred by part III and for any other purpose. As held by the Supreme Court in Calcutta Gas Company (Prop) Ltd. V. State of W.B. (AIR 1962 SC 1044) 'any other purpose' means 'the enforcement of any legal right, of course, means any legally enforceable right. Nothing more can be a higher purpose than the enforcement of the orders of the civil court and that of the High Court which confirms or recognises the rights of a party. By any interpretation of the provisions of C. P. C. the power of the High Court under Article 226 of the Constitution of India to enforce its own orders or the orders of the Civil Court cannot be curtailed. As observed by the Supreme Court in T.C.

Basappa v. T. Nagappa (AIR 1954 SC 440) the High Court, in issuing directions, orders and writs under Art. 226 can travel beyond the contents of the writs which are normally issued as writs of habeas corpus, Mandamus, prohibition, quo warranto and certiorari, provided the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law , are

AIR 1982 A.P. 394 HC, J & NVSK, J

not transgressed. The Supreme Court also observed that the very language of Art 226 makes it clear that in the exercise of power under Article 226, our High Courts need not feel oppressed by the procedural technicalities of the English Writ. The article empowers the High Court to grant appropriate relief and also to modify the form of relief according to the exigencies of each case without being obsessed by the limitation of the prerogative writs.

7. In Satyanarayan v. Mallikarjun (AIR 1960 SC 137) the Supreme Court reiterated this principle and went a step further that for doing justice between the parties, the High Court has absolute jurisdiction to issue such directions and orders as it may deem fit to do justice between the parties and enforce the law of the land. The only limitations on the wide powers conferred on the wide powers conferred on the High Court and exercisable by it in the matter of issuing writs are (1) that the power is to be exercised throughout the territories in relation to which it exercises jurisdiction and (2) that the person or authority to whom the writ is issued, is within the territories over which the respective High Court exercise jurisdiction. None of these limitations come in the way of the High Court issuing appropriate direction to further secure the right determined and recognised by the civil Court. The power which a civil court has under Section 151 C.P.C., the High Court has in much larger measure under Article 226 of the Constitution. We have, therefore, no hesitation in concluding that this court has ample jurisdiction, to issue a writ or direction to all the authorities including the police within the State to enforce the civil court as confirmed by the High Court in a civil revision petition and maintain the rule of law. The police authorities are therefore bound to give all HC, J & NVSK, J

assistance to the appellant to enforce and see that the orders of this court as confirmed in C.R.P. No.3258/81 are implemented and my enquiry or report of any other authority, revenue or police cannot be pit as an excuse for not rendering the required help to the appellant to maintain his possession. This order will be subject only to the final orders of the Civil Court in O. S. 3770/80.

17. The learned counsel appearing for the appellants submitted that

this Court on 07.09.2007 vide orders in WAMP. No.1298 of 2007

stayed the operation of the order dated 08.06.2007 passed by the

learned Single Judge in W.P. No.11411 of 2007 till the disposal of the

appeal. Subsequent to the said order, there was no intervention of the

Police and nothing happened on the subject property all these years.

18. It is pertinent to note here that based on the complaints of the

parties, the Police have already registered Cr.Nos.458 and 457 of 2007

at Police Station Banjara Hills and acted in accordance with law and a

requisition stated to have already been made to Tahsildar for

furnishing the factual report. Taking into consideration the

observation made by the Hon'ble Supreme Court in the case of

Satyanarayana Tiwari that this Court has ample jurisdiction to issue

a writ or direction to all the authorities including the Police to enforce

and maintain rule of law and also taking into consideration the

observations made by this Court while passing the interim order on

07.09.2007, these writ appeals are disposed of leaving it open to the

respective parties to make an appropriate application to the official

respondent authorities ventilating their grievance as and when such HC, J & NVSK, J

situation arises and upon making such an application, the official

respondent authorities thereafter are directed to enforce and maintain

rule of law. However, it is needless to mention that if there is any civil

dispute between the parties on the subject property, the parties are at

liberty to pursue their remedies as available under law.

19. In the result, the appeals are accordingly disposed of. There

shall be no order as to costs.

As a sequel, miscellaneous applications, if any pending, shall

stand closed.

                                             ___________________________
                                                   ALOK ARADHE, CJ


                                             ___________________________
                                               N.V. SHRAVAN KUMAR, J
Date:     -10-2023
LSK