Telangana High Court
Swatch Telangan Youth vs Prl.Secretary Mch And 8 Others on 23 August, 2024
THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
+ W.P. (PIL) No.74 of 2016 AND W.P.No.17053 of 2016
% Dated 23.08.2024
W.P.(PIL) No.74 of 2016
# Swachh Telangana Youth Association
Regd.No.651/2015 Rep. by its working President
A.Vinod Kumar S/o.A. Manohar,
Age: 33 years, Occ: Private Employee,
H.No.134/SRT, Sanjeev Reddy Nagar, Hyderabad
....Petitioners
VERSUS
$ The State of Telangana
Rep. by Principle Secretary, (Municipal administration)
Secretariat, Hyderabad and eight others.
... Respondents
W.P.No.17053 of 2016
# Ashok Kumar Agarwal
S/o.Hari Kishan Agarwal,
Aged: 58 years, Occ: Business and three others
All are residing at H.No.1-5-6/33,
1st Floor, Sri Krishna Colony, Musheerabad
....Petitioners
VERSUS
$ State of Telangana
Rep. through its District Collector,
Hyderabad District,
Station Road, Nampally, Hyderabad and another
... Respondents
2
W.P.(PIL) No.74 of 2016
! Counsel for Petitioners : M.Vijay Kumar Goud,
^ Counsel for Respondent Nos.1, 2 & 5:
Sri Pottigari Sridhar Reddy,
learned Special Government
Pleader,
Counsel for Respondent No.3. : K.Ravinder Reddy
Counsel for Respondent No.4. : Sri K.Buchi Babu
Counsel for respondent Nos.6 to 9 : J.Venkateshwar Reddy
W.P.No.17053 of 2016
! Counsel for Petitioners : J.Venkateswara Reddy
^ Counsel for Respondent Nos.1 & 2 : Sri Pottigari Sridhar Reddy,
learned Special Government Pleader.
< GIST:
> HEAD NOTE:
? CITATIONS:
1. (2011) 7 SCC 69
2. (2008)12 SCC 481
3
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J. SREENIVAS RAO
W.P.(PIL) No.74 OF 2016
AND
W.P. No. 17053 OF 2016
COMMON ORDER:
(Per the Hon'ble Sri Justice J.Sreenivas Rao)
W.P.(PIL) No.74 OF 2016
The writ petition (PIL) is filed seeking the following relief:
"to issue a writ, order or direction more particularly one in
the nature of Writ of Mandamus, (a) to declare the action of the
Respondent Nos.1 to 5 for not protecting the land of the
playground admeasuring 1537 sq. yards in Sy.No.102/2 and
102/3, Bahloolkhan Guda, Sanjeev Reddy Nagar, Hyderabad by
withdrawing CCCA No.87 of 2013 on 02.09.2013 before this High
Court at Hyderabad preferred by the then A.P. housing Board
against Judgment passed by XIV Addl. Chief Judge, CCC,
Hyderabad, in O.S.No.136 of 2005 on 02.09.2013 without any
valid reasons by colluding with unofficial respondent Nos.6 to 9
and to initiate action against erring officials of the Respondent
Nos.1 to 5, (b) consequently develop the playground land
admeasuring 1537 sq. yards in Sy.No.102/2 and 102/3,
Bahloolkhan Guda, Sanjeev Reddy Nagar, Hyderabad, by
providing all amenities to the residents of the locality, (c) and to
grant such other relief ..."
W.P. No. 17053 OF 2016
The writ petition is filed seeking the following relief:
"to issue appropriate Writ, Order or Direction
particularly a Writ of Mandamus declaring the action of
the Respondents in seeking to interfere with the
possession and enjoyment of the property admeasuring
1537.5 square yards in Sy.No.102/2 and 102/3 situated
at B.K.Guda, Balkampet, S.R.Nagar, Hyderabad as
illegal, arbitrary, violative of principles of natural justice
contrary to Article 19, 21 and 300A of the Constitution of
India and issue a consequential direction directing the
Respondents not to interfere with the peaceful possession
and enjoyment of the Petitioners in and over the property
referred to above."
3. The subject property involved in both the cases is one and
the same and therefore, both the cases are clubbed together and
are being disposed of by this common order.
4. Heard Sri M.Vijay Kumar Goud, learned counsel for the writ
petitioner in W.P. (PIL) No.74 of 2016, Sri B.Mohan, learned
Counsel, representing Sri J.Venkateshwar Reddy, learned counsel
for the respondent Nos.6 to 9 who are the writ petitioners in
W.P.No.17053 of 2016, Sri Pottigari Sridhar Reddy, learned Special
Government Pleader, representing learned Advocate General,
appearing on behalf of respondent Nos.1 and 2 in both cases and
respondent No.5 in W.P(PIL).No.74 of 2016, Sri Ch.Jaya Krishna,
learned counsel representing Sri K.Ravinder Reddy, learned
Standing Counsel appearing on behalf of respondent No.3
Corporation and Sri K.Buchi Babu, learned Standing Counsel
appearing on behalf of respondent No.4 in W.P(PIL).No.74 of 2016.
5. Brief facts of the case:
5.1 Unofficial respondent Nos.6 to 9 in W.P.(PIL) No.74 of 2016
are the writ petitioners in W.P.No.17053 of 2016 and are claiming
that they are owners and possessors of open land admeasuring
2,000 square yards in Sy.Nos.102/2 and 102/3 situated at Bahlool
Khan Guda, Balkampet, Sanjeevareddy Nagar, Hyderabad. It is
further stated that originally one B.Kanakaiah owned the entire
property in Sy.No.102. Subsequently, it was divided into parts and
given sub-division numbers at the time of acquisition and their
mother Shanthi Agarwal had purchased the above said property
from Kanakaiah through registered sale deed vide document
bearing No.30 of 1963, dated 07.01.1963 and since then she has
been in possession and enjoyment of the subject property.
5.2 It is further stated that Andhra Pradesh Housing Board
(hereinafter called as 'APHB' for short) acquired a portion of the
property i.e., 17,240 square yards out of 30,855 square yards in
Sy.No.102. The said portion of acquired land was assigned
Sy.No.102/2 and unacquired land was given Sy.Nos.102/3 and
102/4. The land claimed by respondent Nos.6 to 9 in an extent of
1537 square yards falls in Sy.No.102/3 and the rest in
Sy.No.102/2. When the APHB as well as Municipal Corporation,
Hyderabad and the revenue officials are trying to dispossess them,
they have filed suit in O.S.No.136 of 2005 on the file of XIV
Additional Chief Judge (FTC), City Civil Court, Hyderabad, seeking
mandatory injunction and recovery of damages in respect of the
suit schedule property, against the Municipal Corporation of
Hyderabad, District Collector, Hyderabad, APHB and others. The
said suit vide judgement and decree dated 05.11.2012, after full-
fledged trial was decreed in their favour.
5.3 Aggrieved by the above said judgment and decree, APHB has
filed C.C.C.A.No.87 of 2013 before the erstwhile High Court of
Andhra Pradesh, Hyderabad and the said appeal was dismissed as
withdrawn, at the instance of APHB on 02.09.2013. They further
stated that during pendency of the suit in O.S.No.136 of 2005,
respondent Nos.6 to 9 have filed another suit in O.S.No.148 of
2005 on the file of III Additional Chief Judge, City Civil Court,
Hyderabad, seeking delivery of possession of the remaining land to
an extent of 462.5 square yards (out of 2000 square yards) or
payment of compensation of an amount of Rs. 62,90,000/-
together with future interest and costs and the said suit was
dismissed by its judgment and decree dated 03.07.2008.
5.4 Aggrieved by the same, respondent Nos.6 to 9 filed appeal in
C.C.C.A. No.258 of 2008 before the erstwhile High Court of Andhra
Pradesh, Hyderabad and they have withdrawn the same on 02-09-
2013. When the revenue officials, i.e., District Collector,
Hyderabad and Tahsildar, Ameerpet Mandal are trying to interfere
with the subject property to an extent of 1537 square yards in
Sy.Nos.102/2 and 102/3, respondent Nos.6 to 9 filed
W.P.No.17053 of 2016. They further stated that they have filed
suit in O.S.No.1026 of 2016 against Greater Hyderabad Municipal
Corporation seeking perpetual injunction wherein the Court below
granted 'status quo'.
5.5 Petitioner namely Swachh Telangana Youth Association filed
W.P.(PIL) No.74 of 2016 questioning the action of respondent Nos.1
to 5 in not protecting the land of playground admeasuring 1,537
square yards in Sy.Nos.102/2 and 102/3, Bahloolkhanguda,
Balkampet, Sanjeev Reddy Nagar, Hyderabad by withdrawing the
C.C.C.A.No.87 of 2013 on 02.09.2013 by the APHB without any
valid reasons by colluding with unofficial respondent Nos.6 to 9
and to initiate the action against the official respondents and
consequently, sought relief to develop the playground in the
subject property by providing all amenities to the residents of the
locality.
6. Submissions of the learned counsel for the petitioner in
W.P.(PIL) No.74 of 2016:
6.1. Learned counsel contended that APHB had constructed the
houses for economically weaker section people and allotted the
same to the individuals on EMI basis in the year 1977 over the
land admeasuring around Acs.6-00 in Sy.Nos.102 and 103 of
Bahloolkhanguda, Ameerpet Mandal, Hyderabad and subject
property i.e. an extent of 1,537 square yards is kept open for the
purpose of playground. He further contended that when
respondent Nos.6 to 9 without having any right trying to encroach
the said property, the members of Petitioner Association prevented
them. At that time, respondent Nos.6 to 9 have placed the copy of
order in E.P.No.215 of 2014 in O.S.No.136 of 2005 and copy of the
Judgment and Decree in O.S.No.136 of 2005 passed by the learned
XIV Additional Chief Judge (FTC), City Civil Court, Hyderabad,
dated 05.11.2012 before them.
6.2 He further contended that the subject property is an evacuee
property and the Civil Court is not having jurisdiction to entertain
the suit O.S.No.136 of 2005 and pass the decree on 05.11.2012.
He also contended that APHB filed appeal in C.C.C.A.No.87 of 2013
before this Court and they have withdrawn said appeal on
02.09.2013 in collusion with respondent Nos.6 to 9. He further
contended that respondent No.2 in his counter specifically stated
that the subject property is an evacuee property and respondent
Nos.6 to 9 are not having any right to claim the same.
7. Submissions of the learned Special Government Pleader:
7.1 Learned Special Government Pleader contended that as per
Sethwar 1953, the land in Sy.No.102 of Bahloolkhanguda Village
admeasuring Acs.6-15 guntas is recorded in the name of Miss
Mariyam Kareem and as per the pahani of 1955-58, the name of
Miss Mariam Kareem is recorded as pattedar and one Goundla
Kanakaiah as possessor for an extent of Ac.6-04 guntas and one
Narsingam as possessor over an extent of Ac.0-11 guntas. He
further submits that the land was originally held by Miss Mariyam
Kareem who migrated to Pakistan and various correspondence
available in the concerned file reveal that the said land was
declared as evacuee property. The subject property is recorded in
Town Survey Land Records (for short 'TSLR') as part of TS.No.42,
Block-J, Ward-4, correlated to old Sy.No.102/p of
Bahloolkhanguda Village. T.S.No.42 admeasuring to total extent of
7888.50 square meters recorded as Miss. Mariyam Kareem in
column No.10 and Manikya Rao and four others in column No.20
of TSLR.
7.2 He further submits that respondent Nos.6 to 9 have filed suit
in O.S.No.136 of 2005 on the file of XIV Additional Chief Judge
(FTC), City Civil Court, Hyderabad seeking declaration and other
reliefs to an extent of 1537 square yards in Sy.Nos.102/2 and
102/3 without impleading the Union of India or the State
Government as party defendants and obtained the decree on
05.11.2012. He also contended that the subject property is an
evacuee property and as per the provisions of Section 46 of
Administration of Evacuee Property Act, 1950, Civil Court or
Revenue Court has no jurisdiction to deal with the evacuee
property. Hence the judgment and decree passed in O.S.No.136 of
2005 dated 05.11.2012 is without jurisdiction, null and void and
basing on the said decree, respondent Nos.6 to 9 are not entitled to
claim any rights over the subject property.
8. Submissions of Learned Standing Counsel for GHMC:
8.1 Learned Standing Counsel submits that on 18.06.2016
APHB addressed a letter No.3324/J2/LAO/APHB/2007 to the
respondent No.3 Corporation stating that aggrieved by the
judgment and decree passed in O.S.No.136 of 2005, APHB
preferred an appeal in C.C.C.A.No.87 of 2013 before the erstwhile
High Court and also stated that respondent Nos.6 to 9 have also
filed C.C.C.A.No.258 of 2008 aggrieved by the judgment and decree
passed in O.S.No.148 of 2005 claiming compensation and damages
from APHB for the land utilized for laying approach road in the
subject property. The then V.C and other officials have taken a
decision to withdraw C.C.C.A. No.258 of 2008 on the ground that
the open space was already transferred to Municipal Corporation,
Hyderabad including the suit schedule property and vested with
the Municipal Corporation, Hyderabad and further informed the
respondent No.3 to file an appeal in High Court as the land is
vested with GHMC. Immediately, after receipt of the said letter,
respondent No.3 Corporation addressed a letter dated 15.11.2016
vide bearing No.6607/C-10A/CZ/TPS/GHMC/2015-16 requesting
respondent No.4 to furnish copy of layout and the relevant records
regarding handing over the subject property to respondent No.3 for
taking further legal action. Subsequently, issued reminder on
16.02.2017 but respondent No.4 has not provided the requisite
documents. Respondent No.3 has prevented respondent Nos.6 to 9
from erecting temporary shed in the schedule property. Aggrieved
by the same, respondent Nos.6 to 9 have filed suit in O.S.No.1026
of 2016 against the respondent No.3 Corporation and obtained
'status quo' order.
9. Submissions of the Learned Standing Counsel for
Respondent No.4:
9.1 Learned Standing counsel for respondent No.4 submits that
the respondent No.4 has contested the suit in O.S.No.136 of 2005
and also filed appeal C.C.C.A.No.87 of 2013 questioning the
judgment and decree dated 05-11-2012 passed in O.S.No.136 of
2005 and after following due procedure, on being satisfied that the
suit schedule property is situated outside the acquired land of
APHB and also with a view to put an end to the litigation and to
protect the APHB from the risk of paying compensation of
Rs.62,90,000/- with future interest in C.C.C.A.No.258 of 2008,
respondent No.4 has taken a decision to accept the proposals made
by respondent Nos.6 to 9 to withdraw C.C.C.A.No.87 of 2013
subject to withdrawal of C.C.C.A.No.258 of 2008 filed by them and
accordingly they withdrawn the said appeal and respondent No.4
also withdrawn the CCCA.No.87 of 2013 on 02.09.2013.
9.2 He further submits that respondent No.4 had utilized the
entire acquired land for construction of the housing scheme and
there is no left over land in 1537 square yards and further stated
that the subject property was already handed over to respondent
No.3 Corporation and they have to protect the said property and
respondent No.4 is no way concerned.
10. Submissions of learned counsel appearing for
respondents 6 to 9.
10.1 Learned counsel contended that the subject property i.e.,
1537 square yards out of an extent of 2,000 square yards was
purchased by Shanthi Agarwal, who is none other than the mother
of the respondent Nos.6 to 9 through registered sale deed dated
07.1.1963 from its original owner by paying valuable sale
consideration and since then she has been in possession and
enjoyment of the same with absolute rights and they acquired the
same from their mother as successors and they are in possession
and enjoyment of the said property.
10.2 He further submits that when respondent No.4 in collusion
with respondent No.3 illegally laid road towards eastern side of the
land to an extent of 462.5 square yards out of 2000 square yards,
without acquiring and without paying compensation under law and
also trying to interfere with the remaining extent of 1537 square
yards, respondent Nos.6 to 9 have filed suit in O.S.No.136 of
2005 seeking declaration, mandatory injunction, recovery of
damages and other reliefs in respect of 1537 square yards on the
file of XIV Additional Chief Judge (FTC), City Civil Court,
Hyderabad. Similarly they filed another suit in O.S.No.148 of 2005
on the file of III Additional Chief Judge, City Civil Court, Hyderabad
claiming recovery of possession against respondent Nos.3 and 4 to
an extent of 462.5 square yards or alternative for payment of
compensation of Rs.62,90,000/- and the said suit was dismissed
on 03.07.2008. Aggrieved by the same they have filed
CCCA.No.258 of 2008 before this Court and subsequently they had
withdrawn the said appeal on 02.09.2013.
10.3 He further submits that in O.S.No.136 of 2005, the Court
below after taking into consideration the oral and documentary
evidence on record and after considering the contentions of
respective parties, decreed the suit in part on 05.11.2012 by giving
specific findings holding that the subject property is not an
evacuee property and declared that respondent Nos.6 to 9 are
owners of the suit schedule property and also granted mandatory
injunction against the respondent No.3 to remove the dust bins
from the suit scheduled property within a period of three months
from the date of judgment and in so far as the relief of mandatory
injunction and recovery of damages is concerned, the suit was
rejected. Pursuant to the said decree, respondent Nos.6 to 9 have
filed E.P.No.215 of 2014 for execution of the decree against
respondent No.3. Accordingly, respondent No.3 has removed the
garbage. Aggrieved by the judgment and decree passed in
O.S.No.136 of 2005 dated 05.11.2012, respondent No.4 filed
appeal in C.C.C.A.No.87 of 2013 and they have withdrawn the said
appeal on 02.09.2013.
10.4 Learned Counsel vehemently contended that the contentions
raised by the writ petitioner as well as respondent Nos.1, 2 and 5
that the subject property is evacuee property and the Civil Court is
not having jurisdiction to pass the decree and judgment in
O.S.No.136 of 2005 dated 05.11.2012 and the same is not binding
upon them is absolutely not true and correct. The Court below
while decreeing the suit has given specific finding that the suit
schedule property is not evacuee property and also held that said
Court is having jurisdiction and the findings given by the Court
below has become final and binding upon the official respondents
and the WP (PIL) filed by the petitioner is liable to be dismissed
with costs and the relief sought by the respondent Nos.6 to 9 in
W.P.No.17053 of 2016 to be allowed.
10.5 Learned counsel further submits that during the pendency of
the suit, learned XIV Additional Chief Judge, City Civil Court,
Hyderabad appointed Advocate Commissioner in I.A.No.601 of
2007. The Advocate Commissioner with the help of Deputy
Inspector of Survey and Settlements Department, Revenue
Divisional Officer, Secunderabad demarcated the land and
submitted report on 07.10.2010 and the defendants therein have
not filed any objections to the said report and the same has
become final. He further contended that prior to filing of the
W.P(PIL) No.74 of 2016, similar W.P.No.14085 of 2016 is filed by
Economic Weaker Section and Private Houses Welfare Association
represented by Sri S.L.N. Prasad with same relief and the said writ
petition was dismissed as withdrawn on 25.04.2016. The said Sri
S.L.N. Prasad is also a member of petitioner association and the
petitioner association filed W.P.(PIL) No.74 of 2016 without
disclosing the above said facts and the same is liable to be
dismissed.
Analysis of the case:
11. Having considered the rival submissions made by the
respective parties and after perusal of the material available on
record, the following points arise for consideration:
(i) Whether this Court is having jurisdiction to set
aside the judgment and decree passed in O.S.No.136 of
2005 dated 05.11.2012 on the file of XIV Additional Chief
Judge, City Civil Courts, Hyderabad, by holding that the
subject property to an extent of 1537.50 square yards in
Sy.Nos.102/2 and 102/3 is an Evacuee property, while
exercising the powers conferred under Article 226 of the
Constitution of India ?
(ii) Whether this Court is having jurisdiction to
declare that learned XIV Additional Chief Judge, City
Civil Courts, Hyderabad is not having jurisdiction to
entertain the suit vide O.S.No.136 of 2005 and pass
judgment and decree dated 5.11.2012?
(iii) Whether respondent No.2 is entitled to contend
that the judgment and decree passed in O.S.No.136 of
2005 is not binding upon him, especially when
respondent No.2 is a party defendant in O.S.No.136 of
2005?
(iv). Whether the petitioner or respondents 1 to 3
are entitled to the relief sought in the Writ Petition (PIL)
in the absence of questioning the decree and judgment
passed in O.S.No.136 of 2005 dated 05.11.2012 under
law ?
(v) Whether the respondent Nos.6 to 9 who are the
Petitioners in W.P.No.17053 of 2016 are entitled the relief
sought in the Writ Petition ?
Point Nos.(i) to (v)
12. Admittedly, respondent Nos.6 to 9 are claiming rights over
the property to an extent of 1537 square yards in Sy.Nos.102/2
and 102/3 through their mother namely Shanthi Agarwal, who had
purchased the open land admeasuring 2,000 square yards
through registered sale deed bearing document No.30 of 1963
dated 07.01.1963. Out of the said property, when respondent
Nos.3 and 4 illegally laid a road in an extent of 462.05 square
yards (out of 2,000 Sq.yds) without acquiring the land and without
paying compensation and also trying to interfere with the
remaining extent of land i.e. 1537 square yards, they have filed
suit in O.S.No.136 of 2005 on the file of XIV Additional Chief
Judge, City Civil Court, Hyderabad claiming declaration of title,
mandatory injunction against respondent No.3 to remove the
dustbins from the property and also for recovery of damages and
other reliefs. Respondent Nos.6 to 9 have also filed another suit in
O.S.No.148 of 2005 on the file of III Additional Chief Judge, City
Civil Court, Hyderabad seeking recovery of possession in respect of
462.05 square yards or alternative payment of compensation and
the said suit was dismissed on 03.7.2008. Aggrieved by the same,
they filed C.C.C.A.No.258 of 2008 before the erstwhile High Court
of Andhra Pradesh, Hyderabad.
13. In so far as other suit in O.S.No.136 of 2005, the learned
XIV Additional Chief Judge, City Civil Courts, Hyderabad after
considering the oral and documentary evidence on record i.e. PW1
to PW3 on behalf of plaintiff and DW1 to DW4 on behalf of
defendants and Ex.A-1 to A-71 and Ex.B-1 to B-15 decreed the
suit declaring that respondent Nos.6 to 9 are the title holders of the
schedule property i.e. 1537 square yards and also granted
mandatory injunction against respondent No.3 for removal of dust
bins from the suit schedule property within a period of three
months from the date of decree and rest of the reliefs were
dismissed by its judgment and decree dated 05.11.2012. Aggrieved
by the same, respondent No.4 had filed appeal vide C.C.C.A.No.87
of 2013 and the same was withdrawn on 02.09.2013. Similarly
respondent Nos.6 to 9 also have withdrawn their appeal
C.C.C.A.No.258 of 2008 on 02.09.2013. It further reveals that
pursuant to the decree passed in O.S.No.136 of 2005, respondent
Nos.6 to 9 have filed E.P. No.215 of 2014 and respondent No.3
removed the garbage in the schedule property.
14. The main contention raised by the learned counsel for the
writ petitioner and the learned Special Government Pleader is that
the subject property is evacuee property and the XIV Additional
Chief Judge (FTC), City Civil Court, Hyderabad is not having
jurisdiction to entertain the suit and pass the decree and judgment
dated 05.11.2012, hence the judgment and decree passed in the
above suit is without jurisdiction and the same is nullity and
respondent Nos.6 to 9 without impleading the Union of India and
the State Government as party defendants, obtained the decree
and the same is not binding upon the respondent Nos.1, 2, 4 and 5
is not tenable under law, on the ground that, respondent No.2 is a
party defendant in O.S.No.136 of 2005 and he filed written
statement denying the averments made in the plaint including
aspect of jurisdiction to adjudicate the dispute between the parties,
stating that the suit schedule property is an evacuee property and
basing upon the pleadings of the respective parties, the learned
XIV Additional Chief Judge (FTC), City Civil Court, Hyderabad has
framed nine (9) issues. It is relevant to extract the issue Nos.3
and 4 which reads as follows:
"(3) Whether the plaint scheduled property is evacuee
property?
(4) Whether the Court has jurisdiction to try the suit?"
15. That the learned XIV Additional Chief Judge (FTC), after
considering the oral evidence of PW1 to PW3 on behalf of plaintiff
and DW1 to DW4 on behalf of defendants and Ex.A-1 to A-71 and
Ex.B-1 to B-15, passed the judgment and decree dated 05.11.2012
in favour of respondent Nos.6 to 9, partly, by giving specific
findings in respect of issue Nos.3 and 4 holding that suit schedule
property is not an evacuee property and the said Court is having
jurisdiction to try the suit. Hence the stand taken by the
respondent No.2 in the counter affidavit that the judgment and
decree passed in O.S.No.136 of 2005 is not binding upon him and
the said Court is not having jurisdiction to pass the decree dated
05.11.2012 is not permissible under law, on the ground that the
respondent No.2 had contested the suit proceedings and has not
taken any steps to question the above said decree and judgment.
16. It further reveals that respondent No.3 Corporation, after
receiving summons has not chosen to contest the suit O.S.No.136
of 2005 and they were set ex parte. Respondent No.4, though filed
appeal C.C.C.A. No.87 of 2013 before the erstwhile High Court of
Andhra Pradesh, Hyderabad, they have withdrawn the said appeal
on 02.09.2013.
17. It is pertinent to mention here that respondent Nos.2 and 3
come within the meaning of 'State' as enshrined under Article 12 of
the Constitution of India and they are simply throwing the blame
against respondent No.4 only, stating that they have not taken
proper steps to protect the subject property and also not taken
steps to question the decree passed in O.S.No.136 of 2005 dated
05.11.2012, hence, the stand taken by the respondent No.3 that
due to non-furnishing of the information and documents by
respondent No.4 only, respondent No.3 has not taken steps to file
appeal, is not tenable under law, unless and until the judgment
and decree passed in O.S.No.136 of 2005, was set aside, reviewed
or modified through appropriate proceedings, this Court while
adjudicating the proceedings under Article 226 of the Constitution
of India is not having jurisdiction to declare the subject property as
an evacuee property and the Court below is not having jurisdiction
to entertain the suit O.S.No.136 of 2005 and pass the judgment
and decree dated 5.11.2012 and also to grant the relief as in
W.P.(PIL) No.74 of 2016.
18. It is also pertinent to mention here that the prior to filing of
the present writ petition one Economic Weaker Section Private
Housing Welfare Association filed W.P.No.14085 of 2016 against
respondent Nos.1 to 4 questioning the inaction of respondents
Nos.2 to 4 therein in not preventing the respondent Nos.5 to 8
therein from encroaching the land about 1,550 square yards in
Survey Nos.102, 103, 102/2 and 102/3 as illegal, arbitrary and
the said writ petition was dismissed as withdrawn on 25.04.2016.
The present W.P.(PIL) No.74 of 2016, is filed by the petitioner
association, without disclosing the factum of filing earlier writ
petition including dismissal of the said writ petition and the
petitioner association had not approached the Court with clean
hands.
19. It is very much relevant to place on record that in Amar
Singh v. Union of India and others1, the Hon'ble Apex Court
held that litigant, who comes to Court and invokes writ
jurisdiction, must come with clean hands and he cannot
prevaricate and take inconsistent stands, because law is not a
game of chess and equitable nature of remedy must be governed by
1 (2011) 7 SCC 69
principle of uberrima fides. The Court highlighted that such
suppression of material facts undermines the integrity of the
judicial process, emphasizing the importance of transparency and
truthfulness in all interactions with the Court.
20. In K.D. Sharma v. Steel Authority of India Limited and
ors, 2 the Hon'ble Apex Court held that the jurisdiction of the
Supreme Court under Article 32 and of the High Court under
Article 226 of the Constitution is extraordinary, equitable and
discretionary. Prerogative writs mentioned therein are issued for
doing substantial justice. It is, therefore, of utmost necessity that
the petitioner approaching the writ Court must come with clean
hands, put forward all the facts before the Court without
concealing or suppressing anything and seek an appropriate relief.
If there is no candid disclosure of relevant and material facts or the
petitioner is guilty of misleading the Court, his petition may be
dismissed at the threshold without considering the merits of the
claim.
21. In so far as the relief sought by respondent Nos.6 to 9 in
W.P.No.17053 of 2016 seeking direction declaring the action of
respondent Nos.1 and 2 therein from interfering with the
possession and enjoyment of the subject property is concerned,
2 (2008)12 SCC 481
this Court is not inclined to grant the said relief, while exercising
the powers conferred under Article 226 of Constitution of India.
Whether the respondent Nos.6 to 9 are in physical possession of
the subject property or official respondents or any other persons
are in possession of the subject property is disputed question of
fact and the same cannot be adjudicated in the Writ Petition and
they are having remedy to approach the competent Civil Court.
The record discloses that the respondent Nos.6 to 9 have filed suit
in O.S.No.1026 of 2016 against the respondent No.3 for grant of
perpetual injunction, subsequently they withdrawn the said suit.
Hence, this Court is of the considered view that respondent Nos.6
to 9 are entitled to avail the common law remedy by approaching
the competent Civil Court seeking appropriate relief, if so they are
aggrieved.
22. It is already stated supra that unless and until the judgment
and decree dated 05.11.2012, passed in O.S.No.136 of 2005, was
set aside, reviewed or modified through appropriate proceedings,
this Court while adjudicating the proceedings under Article 226 of
the Constitution of India is not having jurisdiction to declare that
the subject property as evacuee/ Government property and the
respondent Nos.6 to 9 are not entitled to claim any rights over the
said property. Hence this Court does not find any grounds to grant
the relief sought in the Writ Petition (PIL) No.74 of 2016. Point Nos
(i) to (v) are answered accordingly.
23. In the result, both the writ petitions, (i) W.P. (PIL) No.74 of
2016 and (ii) W.P.No.17053 of 2016 are dismissed without costs.
However, it is left open to the parties to take appropriate steps to
ascertain their claims over the subject property by availing the
remedies as available under law, if so they are aggrieved.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
__________________________________
ALOK ARADHE, CJ
_______________________________
J. SREENIVAS RAO, J
23rd August, 2024
L.R. Copy to be marked: 'Yes'
PSW/PGP
