Allowed

The District Collector, Hyderabad and 2 Others v. M/S. Kishan Chand Foundation Trust, Hyderabad.

Telangana HC7 Sept 2022WA/1243/2005

Case brief

AI extract

What is this about?

The High Court of Telangana allowed a writ appeal against a Single Judge's order under the Andhra Pradesh Land Encroachment Act. The bench held that the writ court is not a forum to decide serious factual disputes regarding possession or title and quashed the lower court's finding implicating the petitioner's possession.

What did the court decide?

The writ appeal is allowed and the order of the Single Judge is set aside.

The District Collector, Hyderabad and 2 Others Vs M/S… — Land Acquisition | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE SRI JUSTICE C.V. BHASKAR REDDY

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WRIT APPEAL NO: 1243 OF 2OO5

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Writ Appeal under clause 15 of the Letters Patent against Order dated 26.04.2005 in W.P. No. 23OO1 of 2004 and W.P.M.P.No.9726 of 2005 on the file of the High Court.

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Between:

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1 . The District Collector, Hyderabad District, Hyderabad.

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The Revenue Divisional Officer, Hyderabad.

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Mandal Revenue Officer, Himayathnagar Mandal, Hyderabad

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...APPELLANTS (RESPONDENTS)

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AND

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tvl/s. Kishan Chand Foundation Trust, H.No.3-6-292, rep. by its Chairman Mahesh Chand, S/o. late Prof. Kishan Chand, aged 76 years, Occ: Business R/o.3-5-161 Hyderguda, Hyderabad.

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...RESPONDENT (PETTTTONER)

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WAMP. NO:2277 OF 2005

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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 order dated 26.4.2005 in WP.No.23001 of 2004 and W.P.M.P.No. 9726 of 2005, pending disposal of the Writ Appeal.

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Counsel for the Appellants: Mr. P. RADHIVE, GOVERNMENT PLEADER FOR THE ADVOCATE GENERAL

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Counsel for the Respondents: Mr. D. JAGAN MOHAN REDDY

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The Court made the following: JUDGMENT

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THE HON'BLE THE CHIEF JUSTICE UJJAL BHITYAI\ AND

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THE HON'BLD Szu JUSTICE C.V.BHASKAR REDDY

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WRIT APPEAL No. 1243 of 2OO5

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JUDGMENT: (Per the Hon'ble the ChieI Justice Ujjal Bhugon)

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Heard Mr. P.Radhive, learned Government Pleader appearing for the appellants and Mr. D.Jagan Mohan Reddy, learned counsel for the respondent.

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This intra-court appeal has been preferred against the^judgment and order dated 26.Otl.2OO5 passed by the learned Single Judge allowing W.P.No.23OO1 of 2004 Iiled by the respondent as the writ petitioner.

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Respondent had filed the related writ petition assaiiing the legality and validity of the notice dated 26.06.1997 issued by the Manda-l Revenue Officer, Himayatnagar (appellant No.3) under Section 7 of the Andhra Pradesh Land Encroachment Act, 19(15 (as

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made applicable to the State of Telangana) (briefly, the Act'hereinafter) to show cause as to why it should not be evicted from 4678 squa-re meters of land in T.S.No.19 at Gaganmahal. During the pendency of the proceedings, respondent filed a miscellaneous petition for amendment of the prayer portion for declaring the order of appellant No.3 dated 2o.ll.2OO4 passed under Section 6 of the Act as illegal. According to the respondent, it had purchased the subject land in the year 1968 under two registered sale deeds. When appellant No.3 had issued notice under Section 7 of the Act, it ftled O.S.No.2364 of 1997. However, the said suit was dismissed after trial, whereafter it preferred an appeal before the Court of learned Chief Judge, City Civil Court, Hyderabad, being A.S.No.387 of 2OO1, which was a,lso dismissed. Thereafter, questioning the very same notice dated 26.06.1997, the related writ petition came to be Iiled.

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Appellants were arrayed as respondents in the writ petition who contested the same by filing <:ounter affidavit and additional counter affidavit. Stanri taken by the appellants was that the subject limd is Government Abadi. Being Government land, respondent or its predecessors can have no right or interest over the subject land. Respondent having encroached upon the subject land, notice under Section 7 of the Act was issued. After submitting explanation, respondent filed civil suit seeking a decree of perpetual injunction restraining its eviction. After dismissa-I of the suit and the appeal, procr:edings under Section 6 of the Act were initiated, whereafter order was passed on 2O.11.2OO4. As the respondent failed to handover possession, possession cf the subject land was taken over on 23.11.2OO4.

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In the course of hearing before the learned Single Judge, learned Government Pleader appearing lor the appeilants urged as follows:

"lt is his contention that the conduct of the petitioner in filing O.S.No.2364 of 1997 on 07 -O7 - 1997, immediately after giving its explanation on O3-O7-1997, and its filing an appeal in A.S.No.387 of 2O01 against the decree of dismissal of the suit, and allowing the same to be dismissed for default, and lrling this petition, on 70.12.2OO4 suppressing the order dated 20-11-2004 passed under Section 6 of the Act by the 3'd respondent and the 3'd respondent taking over possession as long back as on 23.10.2004 and its failure to disclose its filing a petition to restore A.S.No.387 of 2001 show that petitioner is trying to sail on two boats, and contended that these facts establish the mala fides on the part of the petitioner. It is his contention that on the basis of the telephone bills and electricity bills, possession of a person cannot be determined because it is well known that even after the change of ownership or change of tenant, telephone bills and the electricity bills would be sent in the old name and address for a considerablv long period. He relied on MAIIAVIR PERSHAD v. CoLLECTOR, TTYDERABAD DTSTRTCT (2004 (6) ALD 708) and S.LINGAMAIAH v. STATE OF A.P.(2004 (2) ALD 837) in support of his contention that this petition, without availing the remedy of appeal, is not maintainable. Relying on KARAKA CHINA RAMAYAMMA v. STATE GO\rERNMENT OF A.P.(2OO4 (2) ALD 139) he contended that the remedy of the

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petitioner, if any, is to l'ile a suit for declaration of his title and seek recovery of possession, as final notification under Section 7 of the A.P. Survey and Boundaries Act, 1923, was published in A.P. Gazette dated 22-04-1976 in respect of the survey conducted between 1965 to 1974, and since that notihcation became Iinal as it was not challenged within 3 years. It is his contention that since question of title of the petitioner cannot be decided in a writ petition as held in MEHERNOSH H. cHENoY v. STATE or A.P.(2005 (2) ALT 365), the petition is liable to be dismissed."

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Learned Single Judge on consideration of the documents arrived at a prima facie conclusion that respondent and its predecessors in title were in possession of the subject land. Except the notice under Section 7 of the Act and the Gazette dated 22.04.1976, appellants did not produce any other documents to assert title.

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Learned Single Judge went ahead and further I I held that registered documents produced bl, the respondent showed that respondent and its

predecessors in title were in occupation of the subject iand for more than fifty years and also observed that third parties can acquire title even over government property by being in adverse possession for over thirty vears.

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B. Before concluding, learned Single Judge observed

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as under:

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"21. Petitioner's prayer in this petition cannot be rejected merely because it failed to disclose its filing a petition for restoration of the appeal A.S.No.387 of 2001 dismissed for default because, in the facts and circumstalces of this case, it is clear that respondents are anxious to some how evict the petitioner from the suit land. Petitioner, who hled a suit under wrong advice, came to this Court questioning the notice under Section 7 of the Act. When Officers of the State act arbitrarily and against principles of natural^justice the only remedy open to a citizen is by way of filing a petition under Article 226 of the Constitution. Since respondents issued the proceedings under Sections 7 and 6 of the Act without applying their mind and in vioiation of the principles of natural^justice, the lack of bona hdes, if any, are on the part of the respondents, but not on the^part of the petitioner,

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who is fighting the mighty state to protect its right. When it is not the case of respondents that any interim order is passed in the application fcrr restoration of the A.S.No.387 of 200 1, it cannot be said that petitioner by invoking the^jurisdiction of this Court under Article 226 ol the Constitution :s sailing on two boats."

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Finally, learned Single Judge concluded as under

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"23. Th.e contention of respondents is that they took delivery of the suit land on 23llI l2OO4 i.e. within 3 days from the order dated 2O- 1 l-2OO4. When th.e order granted three days time for delivery of possession, taking over possession even before th.e expiry of the time granted is improper. For that reason, and for the reason that documenl-s produced by the petitioner, like the telephone bills, electricity bills, etc., show that the suit land with servant quarters is still in possession of tbe petitioner, there is force in the contention of the learned senior counsel for the petitioner that taking over possession by respondents is only a paper transaction, and a make believe affair. Since some persons i.e. watchman and his family are living in the structure in the suit land, how they were evicted is not mentioned in the panchanama. That the structure in the suit land has the facilities of telephone and electricit5r is also evident from the documents produced by the petitioner. If the

petitioner is not in possession they would not pay those bills. So, I deem that possession of the suit land is still with the petitioner. Even assuming that possession of the suit land was taken over, since I held that invocation of proceedings under the Act is improper, respondents are bound to put back the petitioner in possession of the suit land, illegally taken from it.

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Before parting with the case, it should be stated that the observations made by me in this order are made only for the purpose of deciding the question whether respondents are right in taking recourse to the provisions of the Act for seeking eviction of the petitioner. Those observations are not to be treated as an expression of my opinion on the question of title of the petitioner over the suit land. If and when, any of the parties institute a suit for declaration of their title to the suit land, that suit has to be decided on the basis of the evidence to be adduced and not on the basis of any of the observations made by me in this order."

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We are unable to accept the observations and findings of the learned Single Judge. When there are serl0us disputes as to possession of the respondent over the subject land with the appellants contending \ the same to be Government land, it was not at all

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justified on the part o[ the iearned Single Judge to have recorded a hnding of possession in favour of the respondent. A writ Court under Article 226 ol the Constitution of India is not a forum for declaration of possession or title of a person, that too, when th:re are serious factua-l disputes.

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1 1. At this stage, we may point out tha1. after dismissa-l of the suit and filing of the writ pr:tition, respondent filed a petition for restoration of A.S.l\o.387 ol 200 1. This fact was not informed to the Court below. That apart, the Act provides for remedy of appeal against an order passed under Section 6 of the Act and further remedv of revision before the revisiona-l authority.

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L2. On thorough consideration of all aspects of the matter, we find that the order passed by the learned Single Judge is wholly unsustainable in law. Th,: same is hereby set aside. --".4