Allowed

Kudmeta Shankar v. The State of Telangana

Telangana HC15 Dec 2020WP/9950/2020

Case brief

AI extract

What is this about?

The High Court set aside an order invoking powers under Section 145 Cr.P.C. to take land into government custody. The Court held the order was passed without jurisdiction as mutation orders apportioning the land had already been passed, and mere pendency of crimes was insufficient grounds for invoking Section 145 Cr.P.C. powers.

What did the court decide?

The order passed by the Agency Divisional Officer under Section 145 Cr.P.C. dated 03.06.2020 was set aside. The writ petition was allowed without costs.

Kudmeta Shankar Vs The State of Telangana — Property and Title | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original J urisdiction)

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TUESDAY, THE FIFTEENTH DAY OF DECEIVBER TWO THOUSAND AND TWENTY

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PRESENT

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THE HON'BLE SRI JUSTICE P. NAVEEN RAO

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WRIT PETITION NO.9950 OF 2O2O

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Betwee n:

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Kudmeta Shankar, S/o. K.Bheem, Aged about 45 years, Occ: Agriculture, R/o. Malangondi village, Asifabad lt/andal, Komuram Bheem, Asifabad District.

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...PETITIONER

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AND1. The State of Telangana, rep. by its Principal Secretary, Revenue Department Secretariat, Hyderabad.

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The Sub Divisional lr,4agistrate and Agency Divisional Officer/Revenue Divisional Off icer, Asifabad.

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The Tahasildar, Asifabad lr/andal, Komuram Bheem, Asifabad District.

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The Sub lnspector of Police, Asifabad Police Station, Komuram Bheem, Asifabad District.

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Smt. Kanaka Ralu Bai, W/o. Rama Rao, R/o. lValangondi village of Asifabad Mandal, Komuram Bheem, Asifabad District.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia^praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue writ order or direction more^particularly one in the nature of writ of mandamus declaring the action of the respondent No.2 in issuing Proc No. D122512020 dated 3.6.2020 u/s 145 of Cr.P.C and directing the respondent No 3 to take the land into government custody in survey No. 13 extent Ac 15.28 gts situated at lt4alangondi village of Asifabad lvlandai, Komurambheem Asifabad District into govt. custody basing on the report of the respondent No. 4 on the ground WP No. 12608/2019 is pending as arbitrary and illegal and contrary to the^provisions of 145 Cr.P.C and without^{jurisdiction,} in violation of the^principles of natural^justice and consequently set aside the same and allow the^petitioner to cultivate the landⁱⁿ survey No. 13/1 extent ac 7.25 gts situated at [,4alangondi village of Asifabad Mandal, Komurambheem Asifabad District.

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lA NO: 1 OF 2020

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Petition under Section 151 CPC^praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be^pleased to suspend the operation of the impugned order^passed by the respondent vide Proc No. D122512020 dated 03.06.2020 to the extent of petitioner pending disposal of the above writ petition.

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Counsel for the Petitioner: SRI GUDI MADHUSUDHAN^REDDY Counsel for the Respondent Nos. 1 to 3: GP FOR^REVENUE Counsel for the Respondent No.4: AGP^{FOR HOME} Counsel for the Respondent No.5: SRI S. CHANDRASHEKHAR

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The Court made the following: ORDER

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

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WRIT PETITION NO.995O of 2O2O

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ORDER:

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Heard learned counsel for the petitioner, learned Assistant Government Pleader for Revenue appearing for respondents i to 3, learned Assistant Government Pleader for Home appearing for respondent No.4 and Sri S.Chandrashekhar, Iearned counsel appearing for rcspondent No.5.

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This w'rit petition is Iiled assailing the decision of SubDivisional Magistratc & Agency Divisional Officer and Revcnue Divisional Officer, Asifabad dated 03.06.2020. By this order, the Agency Divisional Officer in exercise of power vested in him, under Section 145 Cr.P.C., orders taking over the land to an extent of Ac.15.28 guntas in Sy.No.l3 of Malagondi Village, Asifabad Mandal.

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This order is challenged primarily on the ground that the order is passed by referring to an interlocutory order passed by this Court in I.A.No.01 of 2019 in W.P.No. 12608 of 2019, u,hereas, it has no rclevance and therc \,as no dircction issued in the said writ petition directing the authoritv to invoke po\l,ers under Section 145 Cr.P.C. It is further assailed that rhe said order is rr.ithout application of mind and liablc to bc sct aside on that ground alone.

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Per contra, according to learncd Counsel appearing for the 5d respondent, several crimes are registered against the petitioner and petitioner was creating law and order problem and forcibly taking possession of the entire extent of land. The Agency Divisional Ofhcer has validly exercised power vested in him under

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Section 145 Cr.P.C., and the issue is yet to be resolved and granting posscssion at this stage may create further problems. Therefore, the order is sustainable and the same should be continued until peace is restored or issue is resolved amicably.

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From the respective averments, it appears that land to an extent of Ac.15.28 guntas in Sy.No. 13 of Malagondi Village, originally belong to'a person by name Kudmetha Jangu. He had two children by namc Kudmetha Bheemu and Kudmetha Maru. Kudmetha Bheemu did not have children and he and his wife died long ago. In other words, according to the 5th respondent, only Kudmetha Maru succccdcd to the entire propetty belonged to Kudmetha Jangu. On thc contrary petitioner claims that he is the adopted son of Iiudn'rctha Bheemu and therefore, he succeeds to hall of the sharc of Kudmetha Jangu.

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From thc material on record, it is seen that on 13.05.2019 the Tahsildar, Asifabad passed orders mutating the names of Kudmetha Shankar to an extent of Ac.7.64 guntas in Sy.No.13 and Smt Kanaka Raju Bai to an extent of Ac.7.64 guntas in Sy.No.13 respectively, i.e., petitioner and 5fr respondent respectively.

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According to learned counsel for the Sfr respondent, aggrieved by the said order, Sth respondent preferred appeal before the Revenue Divisional Officer, Asilabad and the said appeal is pcnding.

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Lezlrned counscl lor thc petitioner denies the factLlm of preferring appeal. Hou,cver, learned counsel for the petitioner fairll' submits that as of nor.r,, petitioner is confining his claim to the extcnt of 50'/o of the land in Sy.No. 13 and he is fully satisfied u'ith the orders of Tahsildar date-d 13.05.2019. On this aspect, the

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Court is not expressing any opinion and leaves it to^{parties to} work out remedies as available in law.

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ln the order invoking power under Section 145 Cr.P.C., the Agency Divisional Officer takes note of the information furnished to him about pending writ petition and assumes that the said u'rit petition is pending, on the inter se disputes. He therefcrrc, invokes the power under Section 145 Cr.P.C., and seeks to continue lhe orders taking custody of the land till W.P.No.12608 of 2019 (r,r,rongly mentioned as W.P.No.121608) is disposed of.

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In W.P.No. 12608 of 2}lg it was complained that even though the Joint Collector, by his order dated 30.04.2009 directed the Tahsildar, Asifabad to conduct De nouo enquiry and inspite of several representations, reminders and notices, so far the proceedings are not concluded. Taking note of the said submission, in I.A.No.01 of 2Ol9 by order dated 01.07.2019, this Court directed the Tahsildar to complete the De nouo enquiry by conducting proceedings on day-to-day basis by affording due opportunity to both parties and to pass orders.

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1 1. It is thus, scen from the ordcr of this Court in W.P.No.12608 of 2019 that the Court was not dealing u,ith any law and order situation. Court was only taking note of the complaint of the petitioner that inspite of directions issued by the Joint Collector for conducting De nouo enquiry, in the year 2009, so far enquiry is not taken up by the Tahsildar, with reference to the claim of petitioner for his share of property originally belonging to Kudmetha Jangu and issued directions on that aspect.

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From the record, it is also seen that even by the time interim directions were issued, the Tahsildar passed orders on 13.05.2019

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apportioning the land equally betr,veen petitioner and Srh rcspondent and mutated their names accordingly in the revenue records. Further the Agency Divisional Officer, ought to have seen that by the time he passed orders on 03.06.2020 exercising powers under Section 145 Cr.P.C., the Tahsildar passed orders apportioning the land equally between two rival claimants and it can not be said any more that there was a serious law and order problem on extent of land respectively claimed. The order of the Tahsildar is required to be complied by the revenue authorities, until and unless the same is reversed by the appellate authority or contest results in decision by the competent Court otherwise. It is thus clear from reading of the order dated 03.06.2020 and the material on record that there $,as total non application ol mincl and issuc was dccidcd mcchanrcally affccting thc rights of individual claims to a landed property.

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From the material on record it also appears that pouer under Section 145 Cr.P.C rvas resorted on the ground that certain crimes are pending. Mere pcndency of crimcs is no ground to exercise this power. Such power can be exercised only in extraordinary circumstances, warranting initiation of proceedings to ensure that there should not be any disturbance to public peace or public safety or maintenance of public order. The provisions of law are very clear, that the authority has to give importance to breach of public order and not routine law and order which can be handled by the police.

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Further Section 145 Cr.P.C., also requires the Executive Magistrate to undertake further exercise i.e., place the rival^parties on notice, vcrift, u,ho is in possession prior to taking^over

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possession; and vest possession in the person found to be in possession, The exercise of pou,cr under Section 145 Cr.P.C., is to avert a property dispute escalating into a breach ol public order. It is like a fire fighting measure and can not be continued for long. The Executive Magistrate, must also be reminded that he can not keep custody of private property and can not indulge in settling private disputes.

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From the submissions of learned counsels and the material on record it appears no further exercise was undertaken and matter stands as it was when the order was passed on 03.06.2020. This, in my considered opinion, amounts to abdication of power by the competent authority.

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For all the aforesaid reasons, the order impugned is not sustainable and accordingly, it is set aside .

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It is made clear that if the 51h respondent has alrcady preferred appeal, she is entitled to prosccute the saiid appeal. lt is made clear that there is no expression of opinion on inter se civil disputcs. The issue considered ir-r this r.l'rit pctition is on11, u,ith refercnce ro validitv ol ordcr passed by the Agency Divisional Olficer under Section 145 Cr.P.C. It is open to thc parties to work out their remedies as available in law.

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Accordingly, the Writ Petition is allowed. Pending miscellaneous petitions, if any, shall stand closed.

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SD/-B.SATYA VATHI ASSISTdN TR IS //TRUE COPY// c'h SECTION OFFICER To, 1 The Principal Secretary, Revenue Department, state of rerangana, Secretariat, Hyderabad. 2 Th-e Officer. Sub Divisional Magistrate And Agency Divisional Asifabaci^' officer/ Revenue Divisional

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The Tahasildar, Asifabad Mandal, Komuram Bheem Asifabad District. 4. The Sub lnspector of Police, Asifabad Police station, Komuram Bheem Asifabad District.

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One CC to Sri Gudi Madhusudhan Reddy, Advocate [OPUC] 6. Two CCs to GP for Revenue, High Court for the State of Telangana at Hyderabad. [OUT]

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Two CCs to GP for Home, High Court for the State of Telangana at Hyderabad. louTl

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One CC to Sri S Chandrasekhar Advocate IOPUC] 9. Two CD Copies.

HIGH COURT

DATED:1 511212020

ORDER

WP.No.9950 of 2020

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ALLOWING THE WRIT PETITION WITHOUT COSTS

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Kudmeta Shankar v. The State of Telangana

Case brief

What is this about?

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Kudmeta Shankar v. The State of Telangana

Case brief

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