Telangana High Court
Aedla Sudhaker Reddy vs The State Of Telangana on 7 January, 2025
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION No.32087 of 2024
ORDER:
This Writ Petition is filed by the petitioner questioning the
action of the respondent Nos.4 to 6 in interfering with his
possession and digging the land admeasuring Ac.7-00 gts in
Sy.No.563/1 situated at Bagh Amberpet Village, Amberpet Mandal,
Hyderabad District, without following due process of law, as illegal,
arbitrary and violative of Article 300-A of the Constitution of India
and for other appropriate reliefs.
2. The brief facts that are necessary for disposal of the writ
petition are stated as under:
It is the case of the petitioner that he along with his family
members purchased land admeasuring Ac.7.00 gts in Sy.No.563/1
situated at Bagh Amberpet Village, Amberpet Mandal, Hyderabad
District, under an agreement of sale dated 16.01.1986 from Late
Syed Azam S/o. Late Syed Aziz. It is further case of the petitioner
that Late Syed Aziz purchased vast land from Late Pingali Venkatram
Reddy under sale deed bearing document No.49/1356 Fasli (1946)
and after the death of Syed Aziz, his legal heirs i.e, Syed Azam and
others managed the properties. It is stated that the subject land is
dry land and meant for construction of residential houses and the
subject land was never classified as water body. The petitioner
herein placed reliance on the title of his alleged vendor and their
predecessors-in-interest and claims to be in possession of the subject
property. The grievance of the petitioner is that the respondent Nos.4
to 6 are interfering with his possession and digging his land without
following due process of law.
3. A counter affidavit has been filed by the respondents denying
the averments of the writ affidavit and title of the petitioner and
submitted that except relying on the entries made in the revenue
records in the name of his alleged vendor and predecessors-in-
interest, the petitioner has not produced any documents in support
of his case. It is stated that the chequered history over the subject
lands has been elaborately dealt with by a Division Bench of this
Court (to which I was a Member) in District Collector, Hyderabad,
Hyderabad District and others vs. Syed Jahangir, and others 1
and the respondents relied upon the findings recorded therein which
attained finality. It is further stated that as the subject land is
covered with debris, to protect the inhabitants from pollution, the
respondents have executed the work of removal of debris and
cleaned the shrubs and bushes in the notified water body. It is also
2023 (5) ALT 396 (DB)
stated that the petitioner's alleged vendor has failed to establish his
title before the various forums. Therefore, the petitioner is not
having any locus to file the present writ petition and the same is
liable to be dismissed in limine.
4. Considered the submissions of Sri D.V.Sitharam Murthy,
learned Senior Counsel appearing for Sri Kondaparthy Kiran Kumar,
learned counsel for the petitioner, learned Additional Advocate
General appearing for the respondent Nos.1 to 4, Sri K. Ravinder
Reddy, learned Standing Counsel appearing for the respondent
Nos.5 and 6, Sri V. Narasimha Goud, learned Standing Counsel for
HMDA appearing for the respondent No.7 and perused the record.
5. Sri D.V.Sitharam Murthy, learned Senior Counsel appearing
for the petitioner placing much reliance on the entries made in the
revenue records in favour of the alleged vendor of the petitioner has
strenuously contended that in view of the entries made in favour of
the vendor (who executed agreement of sale), a presumption has to
be drawn that the petitioner is in possession of the subject property.
It is further submitted that an application seeking to review the
judgment dated 07.07.2023 passed in Writ Appeal No.484 of 2017
has been filed and the same is pending. The learned Senior Counsel
relied upon the judgment dated 24.08.2023 passed in Writ Appeal
No.697 of 2023 by the Division Bench of this Court (reported in
M/s.Visweswara Infrastructure Pvt. Ltd. and others vs. The
Telangana State Industrial Infrastructure Corporation Ltd. 2)
and submitted that persons in possession cannot be dispossessed,
except in accordance with law.
6. Earlier, the petitioner's vendor i.e, Syed Azam filed
W.P.Nos.12358 of 2003 and 9039 of 2004 on the file of this Court
seeking to declare the action of the respondents therein in
interfering with lands to an extent of Ac.7-15 gts in Sy.No.563/1
situated at Amberpet Village, Hyderabad, as illegal and for other
appropriate reliefs. The said Writ Petitions were dismissed for non-
prosecution on 21.10.2022.
7. Sri Syed Jahangir, S/o. Late Naseeruddin and two others filed
W.P.No.26405 of 2012 on the file of this Court seeking to declare the
action of the respondents therein in seeking to interfere with the
possession of the petitioners therein in respect of the land
admeasuring 988.49 sq.mtrs 983.70 sq.mtrs 1025.98 sq.mtrs
respectively covered by Sy.No.563/1 situated at Bagh Amberpet
Hyderabad as illegal arbitrary and without jurisdiction and the same
was allowed by the learned Single Judge vide order dated
17.08.2016. Aggrieved by the same, the State has filed Writ Appeal
No.484 of 2017, wherein the Hon'ble Division Bench of this Court,
2023 (5) ALD 316 = 2023 (5) ALT 209
taking into consideration of the submission of both sides, allowed
the appeal vide judgment dated 07.07.2023 and set aside the order
dated 17.08.2016 passed by the learned Single Judge in
W.P.No.26405 of 2012. In the said judgment, the Hon'ble Division
Bench of this Court observed as under:
"29. Considered the submissions made by the learned counsel for
the respective parties and perused the record.
30. It is the case of the petitioners that one Syed Aziz acquired an
extent of Acs.299.11 guntas under the registered sale deed bearing
document No.49/1946 from late Pingili Venkat Rami Reddy. The said
Syed Aziz died in the year 1960 and the petitioners succeeded to the
said property. It is the claim of the petitioners that the subject land was
purchased by their predecessors-in-interest is located in survey
No.563/1 correlating to town survey No.71/1. It is the further contention
that as per the Sethwar of Amberpet village land in survey No.563/1 to
an extent of Acs.9.11 guntas is originally recorded in the name of
Bolepally Venkat Reddy as khatadar and subsequently the said survey
number has been sub-divided into survey No.563/1 correlating to town
survey No. 71/1 and 70/2. Further case of the petitioners is that their
mother also filed a declaration under the provisions of the ULC Act and
the competent authority has conducted enquiry and final orders have
been passed under Section 8(4) of the ULC Act. The ceiling proceedings
have not been concluded and the State has not taken possession of the
excess land by following due process of law contemplated under the ULC
Act by issuing notification under Sections 10(5) and 10(6) of the ULC Act,
during the pendency of the proceedings, the Repeal Act came into force
and as such, proceedings initiated under the ULC Act stood abated.
32. Learned Government Pleader has vehemently argued that the
subject land claimed by the petitioners forms part of survey No.563/1
wherein there is an existing tank (water body) commonly called as
Bathukammakunta. As per Section 24 of the Land Revenue Act, all
public roads, lanes, rivers, streams, tanks etc., are the property of the
Government except those belonging to the persons capable of holding
property. In the event of dispute with regard to the nature and its
classification of the subject land, the petitioners have to approach the
competent civil court and establish their title. In the absence of any
declaratory decree from the competent civil court, the petitioners' claim
as owners of the subject land cannot be countenanced and the writ
petition filed is liable to be dismissed.
35. To examine the case in detail, it is necessary to examine certain
provisions of the Land Revenue Act, particularly Section 24 of the said
Act which reads as under:
24. All lands etc., are property of Government: All
public roads, lanes, paths, bridges, ditches, dikes, rivers,
streams, tanks, ponds, canals, lakes and flowing water and all
lands, wherever situated, together with all rights appertaining
thereto are the property of the Government excepting:-
(a) those belonging to persons or class legally capable of
holding property and to the extent so far as their such rights are
established;
(b) those in respect of which any other order under any law
may have been given.
It shall be lawful for the Collector or other officer appointed
by the Government for this purpose subject to rules sanctioned
by the Government and contained in notification and the order of
the Board of Revenue, to dispose of them in his discretion; but
the right of way or other rights legally vesting in any person or
the public shall subsist.
36. As per the above provision, all the tanks including the public
roads, lanes, bridges etc., are the properties of the Government and they
are vested in the State free from all encumbrances. The Land Revenue
Act is a comprehensive enactment which classifies the nature of lands,
right of the Government or the private individuals vis-à-vis the
regularization of the lands. This comprehensive enactment confers power
on the State to claim all the lands and tanks are belonging to the State
except certain exceptions carved out. State while exercising power has
even made a provision for prohibition of granting pattas to the tanks or
the tank bed lands or any public nalas. As per the Master Plan
sanctioned in G.O.Ms.No.363, dated 21.08.2010, the land in survey
No.563/1 is earmarked as water body and Government also issued
G.O.Ms.No.120 dated 02.12.2010 transferring 399 tanks/lakes/water
bodies from the control of the Irrigation and Command Area Development
to Municipal Administration and Urban Development Department. The
said tank known as 'Bathkammakunta' stood at Sl.No.1. In the Master
Plan the said tank was shown as earmarked as water body. Relying on
the aforesaid GOs, the Irrigation Department as well as the Municipal
Corporation requested the Government not to entertain any applications
for regularization of the encroachment or conversion of the lands from
residential use zone to the extent Acs.6.09 guntas in survey No.563/1 to
recreational/conservation use. The records enclosed by the Government
also depict different entries in the revenue records with regard to the
ownership and possession. As per pahani for the year 1972-73, the
word denotes specifically 'errakunta' in column No.2 in relation to survey
No.563/1. The pahani for the year 1967-68 also shows in column 11, the
name of the accountholder as B.Venkat Reddy, whereas the names of
the petitioners' predecessors-in-interest were shown as possessors.
37. The main contention of the petitioners is that Syed Aziz
acquired the property to an extent of Acs.299.11 guntas at Bagh
Amberpet, Hyderabad under registered sale deed vide document
No.49/1946 from Pingili Venkat Reddy. This document was not placed
on record to know the contents of the document to examine the nature of
the lands, extent and its classification and the area involved in the
litigation. As per the revenue records, the name of one Bolepally Venkat
Reddy was shown as pattadar. There is a variation in the name
mentioned as pattadar in the registered sale deed relied upon by the
petitioners in document No.49/1946 and the name entered in the
revenue records as pattadar. Therefore, unless and until this issue has
been examined after considering the evidence, we are of the view that
this Court exercising jurisdiction under Article 226 of the Constitution of
India cannot give a finding with regard to the nature of the land and its
classification. When a title disputes are seriously adjudicated in a
summary jurisdiction under Article 226 of the Constitution of India, much
pain and strain has to be taken which requires examination of the
original documents and its authenticity and correlation of the survey
numbers in the registered sale deeds.
38. The Apex Court in the case of Intellectual Forum (supra) held
that natural resources are the properties of the State and the State will
act as the trustee of the public. The Apex Court further observed in
paragraph 91 that it is true that the tank is a communal property and the
State authorities are trustees to hold and manage such properties for the
benefits of the community and they cannot be allowed to commit any act
or omission which will infringe the right of the Community and alienate
the property to any other person or body.
43. In R.Hanumaiah v. Secretary to Government of
Karnataka, Revenue Department ((2010) 5 SCC 203) the Supreme
Court while deciding whether the tank is a private tank or a public tank
as per the entries made in Mysore Revenue Manual, observed as under:
10. A careful reading of Para 376 of the Manual shows that a
private tank can be constructed by a private individual, either in
his own land or on government unoccupied land. It also shows
that private individuals may restore government tanks.
Therefore it follows that when a tank is described as "private" in
the tank register, that by itself will not establish that the land
where the tank is situated is private land. To put it differently,
when a tank enumerated in the tank register maintained by the
Government, adds to the description of the tank, by the word
"private", it merely shows that the tank in question had been
constructed by a private individual but it does not lead to the
inference that the land on which the tank is constructed
belonged to a private individual.
44. It is a settled law that the power of judicial review is
exercisable under Article 226 of the Constitution of India only on the
grounds of perversity, patent illegality, irrationality, power to take a
decision and procedural irregularity. Admittedly, on reading of the entire
affidavit filed in support of the writ petition and the grounds urged
therein, it does not disclose any patent illegality or lack of power of
Government to notify the subject tank as water body. Further, the
petitioners have not chosen to question the notification issued by the
Government notifying the water tank (Bathkammakunta) and transfer of
the said tank from the control of the Irrigation and Command Area
Development Department to the control of the Municipal Administration
and Urban Development Department.
8. In the aforesaid judgment, the Hon'ble Division Bench of this
Court duly taking into consideration the rival contentions and
documents filed therein (same documents have been filed in this
writ petition) has observed that the issues whether the petitioners
are in possession of the property and the respondents are interfering
with their possession are the material questions which require to be
decided on examination of evidence and documents and the same
cannot be decided in a writ petition under Article 226 of the
Constitution of India and placing reliance on the judgments of
Hon'ble Apex Court in Dwarka Prasad Agarwal v. B.D.Agarwal 3
Mohan Pandey vs. Usha Rani Rajgaria 4, the writ petitioners
therein were relegated to approach the competent Civil Court.
9. Surprisingly, the petitioner herein filed the present writ
petition relying on the alleged agreement of sale dated 16.01.1986
said to have been executed by Late Syed Azam S/o. Late Syed Aziz,
whose writ petitions have been dismissed by this Court on
21.10.2022 on the very same subject property. The petitioner herein
claiming to be an agreement holder is re-agitating the claims
agitated by his alleged vendor without there being any registered
document in his favour. It is also settled principle of law that an
(2003) 6 SCC 230
(1992) 4 SCC 61
agreement holder is never considered to be a transferee of the title
as per the provisions of Transfer of Property Act and he is not
entitled to institute any writ petition claiming any rights under the
alleged agreement of sale.
10. The grievance of the petitioner in this writ petition is that the
respondents are forcefully making efforts to dispossess him.
Possession is always a disputed question of fact. When there are
serious disputes with regard to possession and title and validity of
the documents and its genuineness, the writ petition is not a
remedy to resolve the title disputes qua possession of the property.
11. On the contrary, the respondents are claiming rights over the
subject property as per the provisions of the Telangana Land
Revenue Act, 1317 Fasli that all the tanks and ponds are vested in
the State. As per the findings recorded by the Hon'ble Division
Bench of this Court in Para 36, the entries in the revenue records,
with regard to ownership and possession as per the pahani for the
year 1972-73 recorded as 'errakunta', in column No.2 in relation to
Sy.No.563/1. The word errakunta denotes as a tank/pond, as per
the contentions of the respondents. The Hon'ble Apex Court in
R.Hanumaiah and another vs. Secretary to Government of
Karnataka, Revenue Department 5, while deciding the nature of
the land whether it is a private tank or public tank has observed
that when a tank is described as "private" in the tank register, that
by itself will not establish that the land where the tank is situated is
private land. As per the Master Plan sanctioned in G.O.Ms.No.363,
dated 21.08.2010, the land in Survey No.563/1 is earmarked as
water body and Government also issued G.O.Ms.No.120 dated
02.12.2010 transferring 399 tanks/lakes/water bodies from the
control of the Irrigation and Command Area Development to
Municipal Administration and Urban Development Department. The
subject tank was notified as water body.
12. A careful reading of Section 47 of the Telangana Irrigation Act,
1357 Fasli, states that no patta for any bed area of the tanks shall
be granted or the existing Occupancy Rights continue where such
tanks are utilized as reservoirs, along a canal or a channel. Further,
Section 49 of the Act, states that if any person voluntarily without
proper authority does or attempts to cause damage to irrigation
work is liable for prosecution. In addition to the above, Section 156
of the Telangana Land Revenue Act, 1317 Fasli also confers the
power on the Revenue Officer, to enter upon land or premises
(2010) 5 SCC 203
whenever necessary for fixing boundary marks and classification of
land.
13. The petitioner being the alleged agreement holder is not
having any right to maintain the writ petition as nowhere in the
revenue records the name of the petitioner is recorded or any
documents is filed in support of his possession of the subject
property except relying upon the entries made in favour of his
alleged vendor. Admittedly, the petitioner's alleged vendor has filed
W.P.Nos.12358 of 2023 and 9039 of 2004 seeking similar relief as
prayed in this writ petition and the same were dismissed for non-
prosecution on 21.10.2022. In addition to the above, the
petitioner's alleged vendors and their predecessors-in-interest
claiming very same subject property i.e, land in Sy.No.563/1
situated at Amberpet, Hyderabad, instituted W.P.No.26405/2012 on
the file of this Court relying on the very same subject documents in
respect of part of the land and the same was allowed by the learned
Single Judge vide order dated 17.08.2016. Aggrieved by the same,
the State has filed Writ Appeal No.484 of 2017, wherein the Division
Bench of this Court vide judgment dated 07.07.2023 allowed the
appeal by setting aside the order of the learned Single Judge and the
orders of the Division Bench has attained finality. If the contention
of the petitioner is accepted, it amounts to opening of pandora's box
for vexatious claims.
14. It may be noted that challenging the judgment dated
24.08.2023 passed in Writ Appeal No.697 of 2023 by the Division
Bench of this Court, a Special Leave Petition (Civil) No.1866/2024
was filed on the file of Hon'ble Supreme Court, wherein the Hon'ble
Supreme Court vide order dated 25.01.2024, granted stay of
operation and implementation of the judgment dated 24.08.2023
passed in Writ Appeal No.697 of 2023 by the Division Bench of this
Court and the same was extended from time to time. Even otherwise
also, the facts of the said decision are not applicable to the case on
hand, for the reason that while in the said case, the petitioner
therein was in a position to place the record to establish that he was
in possession and the respondents therein without following due
procedure have made efforts to dispossess, whereas in the instant
case, no scrap of paper or the stray entries in revenue records
support the claim of the petitioner that he is in possession of the
subject property and the petitioner cannot derive any interest under
the agreement of sale. Facts giving rise in this case would draw an
inference that neither the petitioner herein nor his alleged vendor
are in possession of the subject property (tank) which according to
the respondents, Full Tank Level (FTL) and buffer zone has been
fixed by the Irrigation Department as per the cadastral map in full-
shape and a preliminary notification was issued on 04.12.2021 vide
Lake ID No.5100/EEN/01. In the contentions raised in the Writ
Appeal No.484/2017, it was specifically asserted that even the map
prepared by the Survey of India, confirms the existence of water
body i.e, tank. Whether the subject property is a notified tank or
not, or whether the tank is in existence or not, or whether the land
in Sy.No.563/1 is correlating to Town Survey Nos.71/1 and 70/2,
are the issues that are required to be dealt with by the competent
Civil Court as observed by the Hon'ble Division Bench in Syed
Jahangir's case (supra).
15. A culmination of above facts reveals that the present writ
petition is instituted by the agreement holder relying on the material
which was already considered by the Hon'ble Division Bench in
Syed Jahangir's case (supra). The petitioner is making efforts to
prevent the State from undertaking the renovation/rejuvenation of
tanks in accordance with the guidelines issued by the Hon'ble Apex
Court in Sarvepalli Ramaiah vs. District Collector, Chittoor
District 6 and Jagpal Singh vs. State of Punjab 7 and inviting this
Court to decide the very same issues that have already attained
finality in Syed Jahangir's case (supra).
(2019) 4 SCC 500
(2011) 11 SCC 396
16. For the aforesaid reasons, this Court does not find any merits
in the writ petition warranting interference under Article 226 of the
Constitution of India and the writ petition is liable to be dismissed.
17. Accordingly, this Writ Petition is dismissed.
As a sequel, miscellaneous applications if any pending shall
stand closed. No costs.
}
__________________________
C.V. BHASKAR REDDY, J
Date: 07.01.2025
Note: Issue C.C tomorrow.
(b/o)
scs
