Telangana High Court
S. Balwantha Reddy, vs Shri Shekhar Prasad Singh on 7 June, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
W.P.No.30945 of 2016
and
C.C.No.2320 of 2016
COMMON ORDER:
Heard Sri K. G. Krishna Murthy, learned Senior Counsel
appearing for Ms. K. Kiran Mayee, learned counsel for the petitioner,
learned Government Pleader for Panchayat Raj appearing for
respondents No.1 to 3, learned Government Pleader for Home
appearing for respondent No.4 and perused the record.
W.P.No.30945 of 2016
2. This Writ Petition is filed by the petitioner assailing the action
of respondents, in particular respondent No.2, in not adhering to
the statutory duties conferred on them and interfering with the
construction activity of the petitioner over the subject property
bearing House No.2-16-78 admeasuring 290 sq yards situated at
Beerappagadda, Uppal Kalan, Ranga Reddy District, as being bad,
illegal and contrary to the spirit of the provisions of the Statute and
the rights guaranteed under the Constitution of India.
The Case of the petitioner
3. Petitioner contends that he is the absolute owner and
possessor of house bearing No.2-16-78 situated at Beerappagadda,
Uppal Kalan, Ranga Reddy District having purchased the same
under a registered sale deed bearing document No. No.11671/2013,
dt.30.10.2013; that the said house is in existence since over 30
years having constructed in a land admeasuring 290 sq. yards; that
the said house was originally owned by one Sri G.Mallaiah; that the
said G.Mallaiah had deceased on 22.01.1995; and that subsequent
to the death of the original owner, legal heirs of late G.Mallaiah, i.e.,
the daughter-in-law, sons, and grand children of late G.Mallaih, had
sold the said house to the petitioner.
4. Petitioner further contends that the existence of the said
house over 30 years is evident from the fact that the same has been
assessed to property tax in the name of G.Mallaiah; that on the legal
heirs of the late G.Mallaiah executing a registered sale deed in
favour of the petitioner vide document bearing No.11671 of 2013,
the petitioner was put in possession of the same; and that the
petitioner intending to construct a new house therein had
demolished the old house consisting of two rooms purchased by
him, and approached the GHMC authorities and obtained
permission for construction of a residential building consisting of
Ground + 2 upper floors.
5. It is the further case of the petitioner that on obtaining the
building permission from the respondent-authorities for
construction of a new house in the place of the old house, he had
also obtained permission from the revenue authorities for drilling a
bore-well therein vide permission dt.06.06.2016; and that while
drilling the bore-well on the basis of the aforesaid permission
obtained on 27.08.2016, the respondent No.4, at the insistence of
respondent No.2, had forcefully stopped the drilling of the bore-well
claiming the subject land, in respect of which the petitioner had
obtained building permission by demolishing the existing old house,
is a government land belonging to the 2nd respondent.
6. It is the further case of the petitioner that the subject land,
wherein the old house bearing House No.2-16-78 is situated, falls in
survey No.757, and is surrounded by road on the north side and
several houses on other three sides, and that the land in survey
number 757 is a patta land, on which the respondents cannot make
any claim and thus the action of interference by the respondents is
illegal, arbitrary and high handed.
7. In support of the above said contentions, the petitioner has
placed reliance Government of Andhra Pradesh v. Thummala
Krishna Rao & Anr 1, Sagadapu Vijaya Vs. The State of Andhra
Pradesh 2, and Voonna Bangaraju v. Government of Andhra
Pradesh 3.
AIR 1982 Supreme Court 1081
2015(4) ALD 88
2014(3) ALD 443
Case of the respondents:
8. The respondents No.1 to 3 have initially filed a counter on
27.10.2016, deposed to by the 2nd respondent. By the counter-
affidavit filed, the 2nd respondent had pleaded that the subject
house, to which the petitioner is laying a claim on the basis of the
sale deed, forms part of the land that was given to Panchayat Raj
Department, wherein existing offices of the respondents are situated.
9. It is the further case of the 2nd respondent that one poor
family of G.Mallaiah was sheltered with freehold rental in the subject
premises, which forms part of the larger extent of land belonging to
the 2nd respondent; that taking advantage of the shelter provided by
the 2nd respondent to the family of G.Mallaiah during his lifetime,
the executants of the sale deed have unauthorizedly registered a sale
deed in favour of the petitioner vide document No.11671/2013,
dt.30.10.2013; and that in the said sale deed there is no reference of
the link document, under which late Mallaiah had claimed
ownership of the subject premises.
10. The respondents further contend that when the petitioner
sought to obtain building permission, the Assistant City Planner,
Circle-2, had addressed a letter, dt.02.09.2015, to the respondents-
authorities, as to whether the building permission sought for by the
petitioner can be granted or not, since the three sides boundaries is
shown as belonging to the 2nd respondent and no link document
having been submitted.
11. The 2nd respondent further contends that on receiving the
aforesaid letter from the Assistant City Planner, Circle-2, the
2nd respondent authority had by letter 05.09.2015, replied to the
said authority informing that the claim of the petitioner to the
subject land is by way of encroachment and the title being claimed
is not a valid title.
12. The 2nd respondent thereafter filed additional counter affidavit
on 09.06.2018 (1st additional counter affidavit), opposing the
interlocutory application filed by the petitioner to receive additional
material papers.
13. By the said additional counter affidavit, the 2nd respondent
had contended that the petitioner is claiming the subject property to
be situated in survey No.757 of Uppal Kalan village, while the sale
deed does not refer to any survey number wherein the subject
property is situated.
14. The 2nd respondent by the additional counter affidavit would
further contend that the subject property is situated in survey
No.737/1of Uppal Kalan village; that the land in said survey number
is a government land; and that the subject property is situated in
survey No.737/1 as per survey report, dt.15.12.2016.
15. The 2nd respondent further contends that the petitioner for the
first time had sought to contend by the additional material papers
filed on 25.01.2018 that his vendor purchased the subject property
under sada sale deed, dt.04.03.1979; and that the property, which is
said to have been purchased by the legal heirs of late G.Mallaiah, as
executants of the sale deed in favour of the petitioner, is in respect
of house bearing No.14-161 in Survey No.737/5, and thus, the two
properties are different properties, and as such no reliance can be
placed on the sada sale deed.
16. It is also further contended by the respondents that the said
sada sale deed cannot be considered as a link document in respect
of the subject property, in as much as the sale deed executed by the
legal heirs of G.Mallaiah does not make a reference to the said sada
sale deed, by which late G.Mallaiah had become owner of the subject
property, for it to be considered as a link document.
17. The 2nd respondent further contends that the pahanies, which
are sought to be filed as additional material papers, also do not
pertain to the property in question, and that the claim of the
petitioner that the subject property as forming part of survey
No.757, is falsified by the sada sale deed, that is sought to be
brought on record by way of additional material papers, since the
same mentions the property being shown there under being house
bearing No.14-161 situated in survey No.737/5 of Uppal Kalan
village and not in survey No.757 of Uppal Kalan Village as being
claimed by the petitioner.
18. The respondents further contend that since the survey report,
dt.15.12.2016, clearly shows the subject property to be located in
survey No.737/1, which is a Government Land as per the Gazette
Notification, dt.26.09.2013, the petitioner is to be considered as an
encroacher on to the subject property, which is handed over to the
2nd respondent-authority for its activities.
19. The 2nd respondent had filed another additional counter-
affidavit on 27.10.2019 (2nd additional counter affidavit) opposing
the additional material papers sought to be filed by the petitioner on
08.03.2019, whereby the petitioner had claimed that once again a
survey was conducted on 18.06.2018, wherein the subject property
has been shown as falling in survey No.757 of Uppal Kalan Village.
20. The 2nd respondent by the second additional counter affidavit
had contended that the survey conducted on 18.06.2018 was for
fixing boundaries of survey No.1 and was not undertaken for fixing
of boundaries in respect of survey Nos.737 and 757; that the
mentioning of survey No.737 and 757 in the said report relating to
survey conducted on 18.06.2018 was only for fixing the contours of
land in survey No.1 and as such the same cannot form a basis for
the petitioner to claim the subject property to be forming part of
survey No.757.
21. The 2nd respondent further contends even assuming that the
subject property purchased by the petitioner is situated in survey
No.757, though the sale deed does not mention the survey number
in which the subject property purchased by him is located, the said
survey No.757 is situated far away from the land of the 2nd
respondent, which farms part of survey Nos.737/1 and 737/5 of
Uppal Kalan Village as per Ranga Reddy District Gazette,
dt.26.09.2013.
22. The 2nd respondent further contends that since the petitioner
had commenced drilling of bore-well by engaging machinery by
encroaching on to the land belonging to the 2nd respondent, on
noticing the same, the 2nd respondent-authority had approached the
4th respondent-authority and lodged a complaint and took steps to
protect the land belonging to the government vesting with the
2nd respondent-authority.
23. The 2nd respondent by the counter-affidavit would further
contend that the dispute being civil in nature, involving title and
identification of the property in question, the same cannot be gone
into under Article 226 of the Constitution of India, and that the
petitioner has to work out his remedies by establishing his case that
the subject property forms part of 757 and is not forming part of
survey No.737/1 and 737/5 of Uppal Kalan village, and thus sought
for dismissal of the Writ Petition.
24. In support of the aforesaid contentions, learned Government
Pleader for Panchayat Raj appearing on behalf of respondents No.1
to 3 had placed reliance on Swati Ferro Alloys Private Limited V.
Orissa Industrial Infrastructure Development Corporation
(IDCO) & Ors. 4, K.K. Saksena V. International Commission on
Irrigation and Drainage and Others 5, Sathya Pal Anand V.
State Of M.P. And Others 6 and M/S Real Estate Agencies vs
Govt.Of Goa & Ors 7.
25. Counter affidavit on behalf of respondent No.4 is filed on
21.12.2016, wherein the 4th respondent had stated that on receiving
a complaint from one Sri A. Dhananjaya Reddy, Deputy Executive
Engineer, RWS&S Sub-Division, Opposite Survey of India,
Prashanth Nagar, Hyderabad, on 29.08.2016 stating that the office
of the 2nd respondent is situated in house No.2-16-79, Prashant
Nagar, Uppal, Hyderabad, is spread in an area of Acs.3.00 guntas
and that the petitioner intending to construct a building in a portion
of land in admeasuring 290 sq. yards belonging to the 2nd
respondent and is also trying to drill a bore well, and requested the
4th respondent to take necessary action as per law, the authorities
have registered a case vide Crime No.646 of 2016, under Sections
2015(4) SCC 204
2015(4) SCC 670
2016(10) SCC 767
2012(12) SCC 170
447, and 427 IPC on the file of the 4th respondent and took up
investigation in the matter.
26. By the counter affidavit it is also stated that for the purpose of
investigation in to the case, the authorities have visited the subject
property and got the matter thoroughly enquired and that the
investigation is under progress.
27. By the counter affidavit it is also stated while the investigation
is under progress, the petitioner, who is arrayed as accused in above
mentioned crime, to divert the attention of the investigating agency
not to conduct the investigation of the case in a fair and proper
manner, had filed the present writ petition with untenable
allegations.
28. The 4th respondent, by the counter affidavit, further contends
that the allegation of the petitioner that on 27.08.2016 while drilling
bore-well, the 2nd respondent with the help of 4th respondent
forcefully stop the digging alleging that the proposed construction is
in government land, is a false claim, and that the petitioner taking
advantage of the interim order passed by this Court on 14.09.2016
is not cooperating with the investigation.
29. I have taken note of the contentions urged by the learned
counsel appearing on behalf of the respective parties.
Consideration by the Court:
30. The issue which arises for consideration of the Court in the
present Writ Petition is to the localization of the property bearing
House No.2-16-78 situated at Prashanth Nagar, Uppal Kalan,
Hyderabad.
31. While it is not in dispute that the petitioner had purchased the
subject property bearing H.No.2-16-78 from the executants of the
sale deed, who had claimed themselves to be the legal heirs of late
G.Mallaiah, admittedly, does not mention the survey number
wherein the subject property is situated. Further, in the said
document executed in favour of the petitioner, the executants had
claimed the subject property as ancestral property, and there is no
reference to the sada sale deed, under which, late G.Mallaiah had
purchased the subject property from its previous owner.
32. Further, it is also to be noted that in the sale deed executed in
favour of the petitioner, the words "ancestral property" have been
inserted in hand writing without the initials of the parties.
33. It is also on record that the sada sale deed, dt.04.03.1979, is
executed on a Rs.5/- stamp paper dt.02.03.1979, and the deficit
stamp duty under Indian Stamp Act, 1899, was paid on 09.02.2015,
after the petitioner had purchased the subject property on
30.10.2013 from the executants, claiming as the legal heirs of late
G.Mallaiah.
34. Further it is also to be seen that the sada sale deed, through
which late G. Mallaiah claims to have purchased house with door
No.14-161 consisting of two rooms from one B. Rangaiah, S/o
Ramaiah, though mentions the same having purchased by B.
Rangaiah, the date of purchase by him is left blank. However, the
said sada sale deed, through which late G. Mallaiah claims to have
purchased the subject property, clearly mentions the subject
property purchased by late G. Mallaiah from B. Rangaiah to be
located in survey No.737/5 without mentioning as to in which
village the said property is located.
35. Further it is also to be noted that the sada sale deed, which is
sought to be relied upon by the petitioner to claim that late G.
Mallaiah having purchased the subject property on 04.03.1979, the
plan annexed thereto, shows some interpolations with regard to the
measurements on the northern boundary of the subject property
and also with regard to the extent of land that is being claimed to
have been purchased by late G.Mallaiah.
36. Further it is also to be noted that though the sale deed in
favour of the petitioner does not mention the subject property having
been located in survey No.757, and on the contrary, the sada sale
deed, which is now sought to be relied upon by the petitioner as a
link document shows the subject property as being located in survey
No.737/5, the claim of the petitioner that the subject property
purchased by him duly located in survey No.757 of Uppal Kalan
Village and is a patta land, on the face of it appears to be a
contradictory claim, and for the said reason, the reliance placed by
the petitioner on the pahanies to show that the land in survey
No.757 as patta land is of no assistance nor would advance the case
of the petitioner.
37. As noted above, while the petitioner is claiming the subject
property purchased by him to be situated in survey No.757, the sale
deed, on the basis of which the petitioner is claiming the subject
land, records the boundaries of the subject property on three sides
to be that of the land belonging to a Boring Company. Even in the
plan annexed to the sada sale deed filed by the petitioner as
additional material papers vide IA.No.2 of 2019, claiming the same
as link document, shows that the subject property is bounded on
three sides by the land belonging to the Boring Company, while the
north boundary shown as road.
38. It is not shown to this Court that the Boring Company, whose
land is shown as boundary on three sides of the petitioner's
property, had land in Survey No.757, thereby disproving the claim of
the respondents that the subject property forms part of survey
No.737 being the government land.
39. It is trite law that boundaries mentioned in a document would
take precedence over the survey numbers in the event of dispute.
[See Subba Rao Vs. Azizunnisa Begum 8, Rukmini Bai Vs. K.
Mohanlal 9, Subhaga and Ors. Vs. Shobha and Ors 10,]
40. Further, since there are contradicting survey reports with
respect to localization of the subject property; and since both the
petitioner and the respondent herein are placing reliance on the
report favoring them, it is evident that the issue involves the
disputed questions of fact about identification and localization of the
subject property. Such issues cannot be gone into by this Court, as
has been observed by the Hon'ble Supreme Court in the case of
Swati Ferro Alloys Pvt. Limited's case (4 supra) wherein the
Hon'ble Supreme Court while dismissing the Civil Appeal affirming
the order of the High Court has observed as under:
"18. We agree with the observation of the High Court that
this matter involves disputed question of fact. Despite the
same, prima facie it appears that neither original borrower
nor the present appellant does any business in the land in
question, except for taking loan against the land. In this
background while we upheld the impugned judgment dated
18th April, 2012 passed by the Division Bench of High Court
of Orissa at Cuttack in WP(C) No.16790 of 2008, we are of
the opinion that the respondent-IDCO should inquire into
the matter to find out as to whether the land is properly
MANU/AP/0273/1983 : (1985) 2 APLJ (HC) 149
MANU/AP/0275/2011 : 2011 (106) AIC 294
(2006) 5 SCC 466
used by one or other party for the purpose it was open or by
opening different firms or companies in different names in
same premises, they are availing loan mortgaging the same
very land. For such inquiry the respondent-IDCO will issue
notice to the 2nd respondent-Orissa State Financial
Corporation, appellant-M/s Swati Ferro Alloys Pvt. Ltd., M/s
Eastern Fan and any other party who may be interested. On
such enquiry it will be open for the competent authority to
pass an appropriate order."
41. The aforesaid position of law has also been reiterated by a
Division Bench of this Court in M/s.Visweswara Infrastructure
Pvt. Ltd. And others Vs. The Telangana State Industrial
Infrastructure Corporation and others 11, that civil disputes
cannot be gone into in a Writ Petition.
42. Thus, as the dispute involves factual controversies with
respect to localization of the property being claimed by the petitioner
whether is located in survey No.757 of Uppal Kalan village as being
claimed by the petitioner or forms part of survey Nos.737/1 and
737/5 belonging to the respondents being the successors in interest
of the Boring Company belonging to the Government, this Court is of
the view that the said dispute cannot be gone into in a Writ Petition
filed under Article 226 of the Constitution of India which is a
summary proceeding, Therefore, this Court is of the view that it
would be appropriate for the petitioner to approach a competent
Judgment dated 24.08.2023 in W.A. No. 697 of 2023
Court of Civil jurisdiction to work out his remedies, where the issue
can be resolved satisfactorily after conducting regular trial and
adducing evidence.
43. Insofar as the action of the respondents in trying to evict the
petitioner from the subject land claiming the petitioner to be an
encroacher is concerned, it is to be noted that if the respondents
claim the subject property to be forming part of their land in survey
Nos.737 and being a public premises, the authorities are required to
initiate action to evict the petitioner under the provisions of
Telangana Public Premises (Eviction of Unauthorized Occupants)
Act, 1968, which provides for eviction by way of summary
proceedings, since it is settled position of law that even for evicting
an encroacher, due process of law has to be followed [See Yeshwant
Singh v. Jagdish Singh 12].
44. In the light of the aforesaid analysis, this Court is of
considered view that the claim of the petitioner that the respondent-
authorities are interfering with his proposed construction on the
basis of the building permission obtained from the GHMC
authorities in respect of the land admeasuring 290 sq. yards forming
party of survey No.757, cannot be gone into in the present Writ
AIR 1968 SC 620
Petition, and for the said purpose the petitioner is required to
approach and avail the civil remedy.
45. It is made clear that any opinion or view expressed in
considering the present writ petition are only for the purpose of
adjudication of the present writ petition and cannot be used as
expression of opinion by this Court in the event of the petitioner
availing remedies otherwise open to him in law.
46. So far as the Contempt Case registered as C.C.No. 2320 of
2016 is concerned, it is filed to punish the respondents for willful
disobedience of the order of this Court dt.14.09.2016 in
WP.No.30945 of 2016, whereby this Court had passed interim order
in favour of the petitioner restraining the respondents from
interfering with the possession of the petitioner over the subject
property by constructing a wall to the subject property on the
northern boundary, thereby blocking/preventing petitioner's access
to the subject property,
47. Since the Writ Petition involves disputed questions of fact, at
the request of the counsel for petitioner, a Coordinate Bench of this
Court, vide order, dt.10.11.2017, directed the contempt case to be
tagged along with the Writ Petition, and pursuant to the aforesaid
direction, this Contempt Case is tagged along with the Writ Petition.
48. When the matter is taken up for hearing, Sri K.G.Krishna
Murthy, learned Senior Counsel appearing on behalf of Ms.K.Kiran
Mayee, learned counsel for the petitioner, contended that despite
this Court restraining the respondents from interfering with the
petitioner's property, by order dt.14.09.2016, in utter disregard of
the aforesaid order, the respondents have undertaken construction
of a compound wall on the northern boundary of the subject
property and are thus liable to be punished for contempt.
49. The 2nd respondent, upon being served with a notice in this
contempt case, had filed counter affidavit. By the counter-affidavit,
it is contended that as per the survey conducted by the Assistant
Director/Inspector of Survey, Survey and Land Records, Medchal-
Malkajgiri District, in the presence of the petitioner, he had
identified the place of the subject building to be falling in survey
No.737/1 which is government land situated in Uppal Kalan village
of Uppal Mandal, and that the authority in order to protect the
property from further encroachment had constructed a compound
wall on 29.08.2016, i.e., much before this Court passing the interim
order on 14.09.2016.
50. By the counter-affidavit it is further stated that the petitioner
is misleading this Court by making false allegations; that the
compound wall was constructed was much prior to the order of this
Court; and that the respondent-authorities have not undertaken any
further action against the petitioner on this Court passing the
interim order dt.14.09.2016.
51. Having regard to the submissions made by the 2nd respondent
by the counter affidavit filed in this case, and also having regard to
the conclusion arrived at by this Court in the Writ Petition No.30945
of 2016 as indicated above, this Court is of the view that no case is
made out to proceed further with the present contempt case.
Conclusion:
52. Subject to the observations made as above, W.P.No.30945 of
2016 is disposed of; and C.C. No. 2320 of 2016 is closed. No order
as to costs.
54. Consequently, miscellaneous petitions, if any, pending shall
stand closed.
_____________________
T. VINOD KUMAR, J
Date: .06. 2024.
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THE HON'BLE SRI JUSTICE T. VINOD KUMAR
and
Dt. .06.2024
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