Telangana High Court

Shree Manjunatha Constructions vs The State Of Telangana on 18 September, 2024

Author: K. Lakshman

Bench: K. Lakshman

              HON'BLE SRI JUSTICE K. LAKSHMAN

                 WRIT PETITION No.23052 OF 2024
ORDER:

Heard Mr. N. Sreedhar Reddy, learned counsel for the petitioner

and Mr. L. Ravinder, learned Assistant Government Pleader for Revenue

appearing on behalf of the respondents.

2. This writ petition is filed challenging the order dated

09.08.2024 passed by respondent No.2 vide proceedings

No.D/1422/2024.

3. FACTS:

i) Mohammed Abdul Mannan Khan, Mr. Mohammed Farrukh

Azam Khan and Dr. Mohammed Abdul Rahman Khan, sons of Mr. M.A.

Sami Khan, are the absolute owners and possessors of the land

admeasuring Ac.1.00 guntas out of Acs.2.00 guntas in Survey No.41/7,

situated at Khanamet Village, Seri Lingampally Mandal, Rangareddy

District having purchased the same under a registered sale deed bearing

document No.144 of 1995, dated 04.01.1995 from Mr. D. Ramesh and

Mr. T. Sai Prakash, represented by their GPP Holders, Mr. K. Chenna

Kesava Rao and Mr. G. Krishna vide registered GPA bearing document

No.1507 of 1994.

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ii) Originally, Mr. D. Ramesh and Mr. T. Sai Prakash, the

Vendors of Mr. Mohammed Abdul Mannan Khan and 2 others, had fled

a suit vide O.S. No.82 of 1984 against one Mr. W. Gandaiah, for

insertion of their names in the Record of Rights in respect of the land

admeasuring Acs.2.00 guntas in Survey No.41/7 of Khanamet Village.

Vide judgment and decree, dated 09.04.1984, learned Subordinate Judge,

Ranga Reddy District, decreed the said suit. Thus, the Vendors of Mr.

Mohammed Abdul Mannan Khan and 2 others became the absolute

owners of the land admeasuring Acs.2.00 guntas in Survey No.41/7. Out

of the said Acs.2.00 guntas, Mr. Mohammed Abdul Mannan Khan and 2

others purchased an extent of Ac.1.00 guntas under the aforesaid sale

deed which is hereinafter recalled as 'subject land'. Thus, they are the

absolute owners and possessors of the subject land.

iii) While so, the said Mr. Mohammed Abdul Mannan Khan and 2

others have entered into four different Development Agreements with i)

M/s. Shree Manjunath Constructions; ii) Mr. M. Suresh Babu and iii)

Mr. Goturi Amarnath Reddy, for developing the land by executing

registered Development Agreement-cum-General Power of Attorneys

(DAGPA) registered at the office of the Joint Sub-Registrar, Ranga

Reddy, the details of which are as under:

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S.No. DGPA No. Date House No. Built up Area PTI No. Extent

01. 17609/22 25.08.22 2-41/41/7/2 100 sq.feet 1219992191 500 sq. yds.

02. 17610/22 25.08.22 2-41/41/7/4 100 sq.feet 1219992193 1180 sq.yds.

03. 17611/22 25.08.22 2-41/41/7/3 100 sq. feet 1219992192 1180 sq.yds.

04. 17612/22 25.08.22 2-41/41/7/1 100 sq.feet 1219992190 1100 sq.yds.

iv) Thereafter, Mr. Mohammed Abdul Mannan Khan and 2 others

have also obtained building permit orders for construction of Stilt + 5

Upper Floors, the details of which are shown in the below tabular form:

S.No Permit No. Date House No. PTI No. Extent No. of Floors

01. 5801/GHMC/ 03.06.23 2-41/41/7/2 1219992191 500 sq. yds. 1 Stilt + 5 SLP/2023-BP Upper Floors

02. 1702/ -do- 01.06.23 2-41/41/7/4 1219992193 1180 sq.yds. -do-

03. 5802/ -do- 01.06.23 2-41/41/7/3 1219992192 1180 sq.yds. -do-

04. -- -- 2-41/41/7/1 1219992190 1100 sq.yds. --

4. CASE OF THE PETITIOENR:

i) According to the petitioner, it started construction pursuant to

the aforesaid building permit orders. While the work was in progress,

respondent No.3 came to the site and directed the petitioner firm to

forthwith stop the construction work on the ground that the subject

property is government land and that he has instructions from the District

Collector to stop the construction. Therefore, the petitioner has filed writ

petitions vide W.P. Nos.15112, 15097 and 15297 of 2023, questioning

the said illegal action of respondent No.3 in directing the petitioner to

stop the construction work. This Court granted interim orders.

Thereafter, respondent No.3 has issued a notice dated 28.03.2004 under

Section - 7 of the Telangana Land Encroachment Act, 1905 (for short

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'Act, 1905'), alleging that the land in question is a government land, the

petitioner is in illegal occupation of the same and directed it to forthwith

file its explanation. Vide letter dated 04.04.2024, the petitioner sought

three (03) weeks time for submitting explanation effectively to the said

notice dated 28.03.2024. On 07.05.2024, the petitioner approached

respondent No.3 along with explanation. But, due to election to Lok

Sabha, respondent No.3 was not available and his office informed the

petitioner that respondentNo.3 is busy on Lok Sabha Elections and

directed the petitioner to approach the office only after 04.06.2024.

ii) To the utter shock and surprise of the petitioner, respondent

No.3 has issued order dated 27.05.2024 under Section - 6 of the Act,

1905 along with consequential eviction notice dated 27.05.2024 which

was received by the petitioner on 29.05.2024 directing the petitioner and

its principals to evict from the subject property.

iii) Feeling aggrieved by the said order, the petitioner preferred an

appeal vide Appeal No.D/1422/2024 under Section - 10 of the Act, 1905

before respondent No.2 along with an Interlocutory Application seeking

stay of further proceedings pursuant to the order dated 27.05.2024 of

respondent No.3. The said appeal was filed on 01.06.2024 and it was

numbered and taken on file on 03.06.2024.

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iv) Thereafter, respondent No.2 issued a notice dated 10.06.2024

to the petitioner to appear on 18.06.2024 at 11.00 A.M. for hearing along

with documentary evidence in respect of its claim. According to the

petitioner, it has received the said notice and appeared on 18.06.2024, on

which date, respondent No.2 sought remarks from respondent No.3. No

date was given. The petitioner was informed that the date would be

given on receipt of report from respondent No.3. The petitioner was

waiting for notice from respondent No.2. In the meanwhile, the

petitioner received the impugned order dated 09.08.2024 dismissing the

appeal filed by the petitioner before respondent No.2. Therefore,

according to the petitioner, the impugned order is in violation of

principles of natural justice and also the procedure laid down under the

Act, 1905.

5. CONTENTIONS ON BEHALF OF THE PETITIONER:

i) Mr. N. Sreedhar Reddy, learned counsel for the petitioner,

would contend that the petitioner has raised a specific ground in the

appeal that its Principals are in long standing possession of the subject

property and, therefore, initiation of the proceedings under the Act, 1905

seeking eviction of the petitioner and its Principals summarily is

impermissible.

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ii) In support of his contention, learned counsel also placed

reliance on the decision rendered by the Hon'ble Supreme Court in

Government of Andhra Pradesh v. Thummala Krishna Rao 1.

iii) He would further contend that there is serious dispute with

regard to the title of the subject property. Therefore, initiation of

proceedings/action against the petitioner under the Act, 1905 is

impermissible. The Authorities under the Act, 1905 cannot decide title

of the subject property, and it is for the Civil Court to decide the same.

Despite raising the said contentions specifically in the appeal, respondent

No.2 did not consider the same. Therefore, the impugned order is in

violation of the principles of natural justice and the procedure laid down

under the Act, 1905 and is not a reasoned order. Therefore, he sought to

set aside the same.

6. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

Whereas, learned Assistant Government Pleader for Revenue has

produced written instructions of respondent No.3, wherein it is stated

that the both the orders dated 27.05.2024 and 09.08.2024 passed by

respondent Nos.3 and 2 respectively, are on consideration of entire

record and affording an opportunity to the petitioner herein. Notice was

. (1982) 2 SCC 134

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served on the petitioner by respondent No.2 fixing the date as

18.06.2024. The orders dated 09.08.2024 were passed by respondent

No.2 by following the procedure laid down under law. Therefore, there

is no error in it.

7. ANALYSIS AND FINDING OF THE COURT:

i) Since there is no answer with regard to the contention raised by

learned counsel for the petitioner that respondent No.2 sought for report

from respondent No.3 in the inquiry held on 18.06.2024 and informed

the petitioner that they will inform the next date of hearing on receipt of

report from respondentNo.3, this Court vide order dated 05.09.2024

directed learned Assistant Government Pleader for Revenue to produce

the original record in respect of the impugned order from respondent

No.2. He has produced the report from respondent No.2.

ii) Perusal of record would reveal that the petitioner filed the

appeal on 03.06.2024. The same was put up before respondent No.2 on

10.06.2024, who issued notice dated 10.06.2024 fixing enquiry on

18.06.2024. In the original file of respondent No.2, the following

proceedings are mentioned:

"Ref:- 1) The DC & Tah., S-pally Lr.No.B/935/2024, dt:15/7/2024 xxx

Submitted:-

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Kindly peruse the ref., cited wherein the DC & Tah., S-pally (M) have forwarded the original No.B/225/2024.

       If agreed the case may be RFO.,

  Sd/                       RDO                       Sd/ 9/8/2024.


  Ref:- T/o prodgs. even dated 09/8/2024
                                       xxx
  Submitted:-

As per the instructions draft letter to DC & Tah S-pally is prepared & placed below.

  Sd/                       DAO                        Sd/-
  14/8                                         RDO 14/8/24"

iii) Thus, respondent No.2 called for report from respondent No.3,

who in turn submitted his report on 15.07.2024. There is no mention

about the dates of hearing of respondent No.2 in respect of the said

appeal either on 15.07.2024 or 09.08.2024. Note file does not reflect

anything. However, respondent No.2 received the report from

respondent No.3 on 15.07.2024. On receipt of the said report,

respondent No.2 has to give a date requesting the petitioner to appear on

such date. The said note file would also reveal that on 18.06.2024, the

petitioner was present and that enquiry was adjourned. In the impugned

order, there is reference with regard to the report dated 15.07.2024 of

respondent No.3. In the impugned order dated 09.08.2024, there is no

reference with regard to the service of notice dated 10.06.2024 on the

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petitioner and its presence on 18.06.2024 and that on 09.08.2024, the

petitioner was present. There is no reference to the said proceedings.

iv) It is relevant to note that Section - 10 of the Act, 1905 deals

with appeals against the order passed by respondent No.3 under Section -

6 of the Act, 1905. Therefore, respondent No.2 while dealing with the

appeal being a quasi-judicial authority has to conduct proceedings by

following the procedure laid down under the Act, 1905 and also the

principles of natural justice. In the present case, respondent No.2 did not

conduct the proceedings by following the principles of natural justice.

Therefore, on the said ground alone, the impugned order is liable to be

set aside.

v) Perusal of appeal filed by the petitioner would reveal that the

petitioner has specifically contended that its Principals are in long

standing possession of the subject property. They have also placed

reliance on the principle laid down by the Apex Court in Thummala

Krishna Rao1.

vi) Perusal of record would reveal that originally Mr. W. Gandiah

was the absolute owner and possessor of the land admeasuring Acs.2.00

guntas in Survey No.41/7 of Khanamet Village. Mr. D. Ramesh and

Mr.T. Sai Prakash had filed the aforesaid suit O.S.No.82 of 1984 against

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the said Mr. W. Gandaiah for insertion of their names in the Record of

Rights. The said suit was decreed on 09.04.1984. On the strength of the

said decree, Mr. D. Ramesh and Mr. T. Sai Prakash are claiming the

right over the said property. They have executed a GPA in favour of Mr.

G. Krishna and Mr. K.Chenna Kesava Rao vide registered GPA bearing

document No.1507 of 1994, who in turn executed the aforesaid

registered sale deed bearing document No.144 of 1995, dated 04.01.1995

in favour of Mr. Mohammed Abdul Mannan Khan and 2 others for sale

an extent of Ac.1.00 guntas in Survey No.41/7 of Khanamet Village.

The said Mr. Mohammed Abdul Mannan Khan and 2 others have

executed the aforesaid four (04) DAGPAs in favour of the petitioner

herein and 2 others.

vii) The petitioner herein has specifically contended before

respondent No.2 that its Principals are in long standing possession of the

subject property. Though there is specific contention, respondent No.2

did not consider the said aspect in the impugned order.

viii) It is relevant to note that Section - 7 of the Act, 1905 deals

with 'prior notice to person in occupation', and it says that before taking

proceedings under Section - 5 or Section - 6, the Collector or Tahsildar,

or Deputy Tahsildar, as the case may be, shall cause to be served on the

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person reputed to be in unauthorized occupation of land being the

property of Government, a notice specifying the land so occupied and

calling on him to show cause before a certain date why he should not be

proceeded against under Section - 5 or Section - 6. Therefore,

respondent No.3 has issued a notice dated 28.03.2024 and, thereafter,

passed an order dated 27.05.2024. Challenging the said order, the

petitioner preferred an appeal in terms of Section - 10 of the Act, 1905

before respondent No.2.

ix) It is the specific contention of the petitioner that on receipt of

the said notice dated 28.03.2024 from respondent No.3 under Section - 7

of the Act, 1905, it has submitted a representation dated 04.04.2024

seeking three (03) weeks time. Therefore, on 07.05.2024, they went to

the office of respondent No.3 along with its explanation, but they were

informed that respondent No.3 was not available and he is busy with Lok

Sabha Elections and they have requested the petitioner to come after

elections. Therefore, the petitioner was waiting for notice form

respondent No.3. In the meanwhile, respondent No.3 has passed an

order dated 27.05.2024. Therefore, according to the petitioners, the

order dated 27.05.2024 of respondent No.3 is contrary to the Notification

issued by the Election Commission of India directing all the quasi-

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judicial officers not to conduct any proceedings and pass orders during

Election Code. The said aspect was not considered by respondent No.2

in the impugned order though there is specific contention raised by the

petitioner.

x) In Thummala Krishna Rao1, the Apex Court considered that

where there is bona fide dispute of title between the Government and

occupant of the land, the same must be adjudicated upon by the Ordinary

Courts of law and the summary procedure is ill-suited.

xi) Relying on the said principle, in B.N. Manga Devi v. State of

Andhra Pradesh2, the High Court of Andhra Pradesh at Hyderabad held

that under Sections - 6 and 7 of the Act, 1905, the following conditions

and steps of procedure have to be fulfilled and followed before a person

could be legally evicted from the occupation of Government land.

(a) The land must be shown to be Government property in which

Government have a subsisting right on the date of the proposed

eviction;

(b) a notice should issue under Section 7 and should be served on the

person concerned to show cause before a date to be fixed why he

should not be proceeded against under Section 6 of the Act;

. 2011 SCC OnLine AP 442

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serving a notice requiring him within such time as the Collector

may deem reasonable to vacate the land;

(d) if such notice is not obeyed directing removal of the person from

the land; and

(e) if such person in occupation resists or obstructs, a summary

enquiry by the Collector shall be held and only after the Collector

is satisfied that the resistance or obstruction is without any just

cause, he could issue a warrant for his arrest and on his

appearance commit him to close custody.

xii) In the said case, the petitioners therein claimed possession

over the land for nearly 30 years before initiating proceedings under the

Act, 1905. Therefore, it was held leaving it open to the State to initiate

appropriate legal proceedings for having its title declared and possession

restored and until that is done, the petitioners therein cannot be evicted

from the lands in question pursuant to the summary procedure followed

under the Act. The said principle was also reiterated in Telangana

NGO's Co-operative House Building Society Ltd., Hyderabad v.

State of Andhra Pradesh3.

. 2012 SCC OnLine AP 538

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xiii) In the light of the aforesaid legal principles, coming to the

case on hand, the impugned order of respondent No.2 is liable to be set

aside on the following two (02) grounds:

(a) Though notice dated 10.06.2024 was served on the petitioner

fixing date of enquiry on 18.06.2024, there is no reference in the

note file with regard to the details of enquiry on 18.06.2024 i.e.,

presence of the petitioner, calling for report from respondent

No.3. In the note file, there is reference to submission of report

dated 15.07.2024 by respondent No.3. Therefore, the impugned

order is without affording an opportunity to the petitioner by

serving notice after 18.06.2024. Thus, the impugned order is in

violation of principles of natural justice;

(b) The petitioner specifically contended about the order dated

27.05.2024 passed by respondent No.3 when Election Code is in

operation.

possession over the subject property. Therefore, they cannot be

evicted by initiating summary procedure under the Act, 1905.

(d) There is no consideration of the said aspects by respondent No.2

in the impugned order.

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8. CONCLUSION:

i) Viewed from any angle, the impugned order dated 09.08.2024

passed by respondent No.2 in file No.D/1422/2024 is liable to be set

aside and accordingly the same is set aside.

ii) The matter is remanded back to respondent No.2 with a

direction to decide the appeal filed by the petitioner under Section - 10 of

the Act, 1905 afresh and pass orders strictly in accordance with law and

by putting the petitioner on notice and affording it an opportunity and

also by considering the following aspects:

a) The aforesaid four (04) DAGPAs were executed in favour of

the petitioner and 2 others by the land owners, Mr. Mohammed

Abdul Mannan Khan & 2 others, and the petitioner and 2

others are only Developers-cum-General Power of Attorney

Holders, but not the land owners. Therefore, respondent No.2

has to serve notices on the land owners;

b) Though there are there (03) General Power of Attorney

Holders, notice under Section - 7 of the Act, 1905 was served

only on the petitioner. The petitioner is claiming that its

Principals are long standing possession over the subject

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property. Therefore, summary proceedings cannot be initiated;

and

c) Respondent No.3 passed the impugned order dated 27.05.2024

when Election Code was in operation.

iii) Respondent No.2 shall consider the aid aspects and decide the

appeal as expeditiously as possible, preferably within a period of two

(02) months from the date of receipt of copy of this order.

iv) Till then, respondent Nos.2 and 3 are directed not to proceed

against the petitioner pursuant to the order dated 27.05.2024 of

respondent No.3.

9. With the aforesaid observations and directions, this writ

petition is allowed. In the circumstances of the case, there shall be no

order as to costs.