Allowed

The State Archeological Museums,Hyd.,and Anr. v. Vegasena Venkata Satyanarayana,W.G.Dist.,and 4 Otrs.

Telangana HC21 Mar 2025WA/1661/2017

Case brief

AI extract

What is this about?

State Archaeology appealed against a Single Judge order directing demolition of a compound wall around the Raymond's Obelisk monument at Gaddiannaram. The Division Bench held disputed boundary/title questions could not be decided in writ jurisdiction, found the Single Judge erred on three counts, allowed both appeals and set aside the common order.

What did the court decide?

Impugned common order dated 07.03.2017 in WP Nos.13810 and 16754 of 2008 set aside; both writ appeals allowed without costs; liberty to pursue civil remedies.

The State Archeological Museums,Hyd.,and Anr. Vs… — Property and Title | Telangana HC (2025)

¶1

[³⁴⁴⁶ ]

¶2

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE THE ACTING CHIEF JUSTICE^{SUJOY PAUL} AND THE HONOURABLE SMT JUSTICE RENUKA^YARA

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WRIT APPEAL NOs: 1639 and 1661 ot²⁰¹⁷

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WRIT APPEAL NO: 1639 OF 2017

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Writ Appeal under clause 15 of the Letters^{Patent preferred against the order} dated 07.03.2017^passed in WP No.13810^{of 2008on the file of the High Court.}

¶9

Between:

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1 . The State Archaeological Museums^{Department, representedby its-Director,} Government of Telan"gana,^{(Previously 'shown as State of AndhraPradesh),} Gunfoundry, Hyderabad

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The Commissioner, Survey and^{land Records Settlement, Governmentof} Telangana (Previously shorin as Government^{of A.P.),Hyderabad.}

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...APPE LLANTS/RESPONDENTS

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AND

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V.Swaroopa Rani, Wo^{Damodar Reddy, OccHouse-wife, R/o 1-9-312MA} and B, Vidyanagar.

¶15

Smt. G. Ahalya Devi,^{W/o Sri} G.^{RamachandraReddy,F/o. 3212' RT'} Malakpet, Hyderabad

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V. Prabhakara Reddy, S/o^{late NarayanaReddy, (died) per LR Occ} Agriculture, Rl/o Chowdbor Village,^{Devaruppula fvlandal, WarangalDistrict.}

¶17

Smt. V. Sakuntala Devi,^{W/o Vasudeva Reddy'Occ Housewife,Chinna} Maoor Village, Devaruppula^{Mandal,Warangal District'}

¶18

Smt. K. Bharati Devi,^{WoRajeswaraRao, Occ Housewife,Ri/o 81-90, Chaval} Road, Hyderabad.

¶19

Smt. V. lndra Devi, Wo^{late Prabhakara Reddy, No 16-10-228/3,Old} Malakpet, Hyderabad.

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(RO herein is brought on record^{as LR of deceased R3 herein as per Court} irrder dt. 08.09.2010^{in wPMP.No.3147Ol2O09)}

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...RESPONDENTS

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l.A. NO: 1 OF 2017(WAMP. NO: 3122OF 20171

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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 order dt. 07.03.2017 in W.P.No.13810 of 2008.

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lA NO: 1 OF 2018

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Petition unde" Section 151 CPC praying that in the circu.nstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit the petitioners herein to delete the words " was 3 hectares " from para -9 of the Affidavit filed in support of l.A.No. 1/ 2017(W.A.M.P.No.312212017 in WANo.^'1639 o'f 2017) and read the affidavit without taking into consideration of those words.

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lA NO: 1 OF 2022

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Between:

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'1 . Smt. V. Sakuntala Devi, W/o Vasudeva Reddy, aged about major, Occ Housewife, Chinna Maoor Village, Devaruppula Mandal, Warangal District.

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Smt. K. Bharati Devi, Wo Rajeswara Rao, aged about Bg years, Occ Housewife, R/o Bl-90, Chaval Road, Hyderabad.

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Smt. V. lndra Devi, Wo late Prabhakara Reddy, aged about major, Rl/o^'16-10- 22813, Old Malakpet, Hyderabad.

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...PETITIONERS/RESPONDENT Nos.4 to 6

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AND

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1 The State Archaeological Museums Department, representeC by its Director, Government of Telangana, (Previously shown as State of Andhra Pradesh), Gunfoundry, Hyderabad

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2 The Commissioner, Survey and land Records Settlement, Government of Telangana (Previously shown as Government of A.P.), Hyderabad.

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... RESPONDE NTS/APPE LLANTS

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J V.Swaroopa Rani, W/o Damodar Reddy, aged about major, Occ House-wife, R/o 1-9-31 2^/VA and B, Vidyanagar.

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4 9mt.^{G. Ahalya Devi,-WoSri G. Ramachandra Reddy, aged about major, Occ} House-wife, No. 3212, RT, Malakpet, Hyderabad

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5 V. Prabhakara Reddy, S/o late Narayana Reddy, aged about major, Occ Agriculture, Rto Chowdoor Village, Dev-aruppula Mandal, Warangal Diltrict.

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...RESPONDENTS

¶40

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Petition under Section 151 CPC^praying that^{in the circumstancesstated} in the affidavit filed in support of the^{petition,the High Court may be pleasedto} vacate the interim order Dated 07.03.2018^{in W.A.No. 1639 o'f 2017 granted by} this Hon'ble Court.

¶42

Counsel for the Appellants: Ms.^{DTVYA ADEPU, SPL. GP, REP. FOR} THE ADVOCATE GENERAL

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counserfor the Respondent No.4^- t,

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REiYFBHtJ_i[f]#rt;$ f=orrJl:=.,

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WRIT APPEAL NO: 1661 OF 2017

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Writ Appeal under clause 15 of the^{Lefters Patent againstthe order passed} dated 7 -3-2017 in W.P. No.'167 54 oI^{20OB on the file of the High Court.}

¶47

Between:

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'l . The State Archeological [Vluseums, reo. bv its Director. Government of Goveinment of Andhra Pradesh),

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Telangana, (Previously shown as Gunfoundry, Hyderabad.

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The Commissioner, Survey and Land Records Settlement,^Governmentof own as Government of^{AndhraPradesh),}

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Telangana (Previously sh Hyderabad.

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...APPELLANTS

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AND

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Vegasena Venkata Satyanarayana., -S/9,^{Venkata SomarajuRl/o'} Mahadevapatnam, Bhimavaram Taluk,^{W.G.District.}

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Kalidindi Subba Raju,^{S/o. SuryaNarayanaRaju R/o. MyeepaVillage'} Bhimavaram Taluk, W.G. Diskict.

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Penumetcha Surya Narayana^{Raju, S/o. Lakshmipati Raiu R/o.llanColony,} Nagarjuna Sagar, Nalgonda District.

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Penumathsa Venkata Sathyanarayana^{Raju,S/o. PenumathsaSurya} Narayana Raju.

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FazalAli, S/o. lbrahim Esa^{Rl/o. Kingkoti, Hyderabad.}

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Rep. by their G.P.A. Holder^{Vegesana Murthy.Raju,S/o.Subbaraju,age 31} Yrd, H/o. 40-4-6, J.V.R Street,^{Krishna Nagar,Venkateswarapuram,} Vijayawada, Krishna District.

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...RESPONDENTS

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-4

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l.A. NO: 1 OF 2017(WAMP. NO: 3163 OF 2017

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lA NO: 1 OF 2018

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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 permit the petitioners herein to delete the words "was 3 hectares" from para - g of the Affidavit filed in support of l.A. No. 1l 2017 (WAMP No. 3163/ 2017 in WA. No. 1661 of 2017) and read the affidavit without taking into ,lonsideration of those words.

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lA NO: 6 OF 2018

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Between:

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'1 . Vegasena /enkata Satyanarayana, S/o. Venkata Somaraiu Rl/o. [/ahadevapatnam, Bhimavaram Tdluk, W.G. District.

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Kalidindi Suhba Raju,_ S/o. Surya Narayana Raju R/o. Vlyeepa Village, Bhimavaram^'f aluk, W.G. District.^'

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Penumetcha Surya Narayana Raju, S/o. Lakshmipati Raju R/o.llan Colony, Nagarjuna Sagar, Nalgonda Distriit.

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Penumathsa Venkata Sathyanarayana Raju, S/o. penumathsa Surya Narayana Raju.

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F azal Ali, S/o. lbrahim Esa R/o. Kingkoti, Hyderabad.

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Rep. by their^(i.P.A. Holder Vegesana Murthy Raiu, S/o.Subbaraiu. aoe 3.1 Itr, o, 40-4-6, J_V.R Street, Krishna^'Nagjar, Venkates#aiap"uiam, Vijayawada, h.rishna District.

¶74

...APPELLANTS

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AND

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1 The State Archeolooical Museums, rep. by its Director, Government of Telangana, (Previou-sly shown as Government of Andhra Pradesh), Gunfoundry, Hyderabad.

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2 The^{Commis.sioner,S.urveyand Land Records Setflement, Government} of .lelangana^{(P.eviously shown as Government} of Ariclhra^pradesh), Hyderabad.

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...RESPONDENTS

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Petition under section^{15'l cPCprayingthat in the circumstancesstated} in the affidavit filed in support^{of the petition,the High court may be pleasedto} vacate the interim order dated^{07.03.2018 passed in WA No. 1661 ol 2O17}

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Counsel for the Appellants:^{Ms. DIVYA ADEPU, SPL. GP, REP'FOR} THE ADVOCATE GENERAL

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Counsel for the Respondents:^{SRI VEDULAVENKATA RAMANA, Sr'COUNSEL,} REP. FOR M/s. BHARADWAJ^ASSOCIATES

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The Court delivered the following:^{COMMON JUDGMENT}

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THE HON'BLE THE ACTING CHIEF. JUSTICE SUJOY PAUL AND THE HON'BLE SMT. JUSTICE RENUKA YARA

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WRIT APPEAL Nos.l639 and I 661 of 2Ol7

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COMMON JUDGMENT (Per Hon'ble Smt. Justice Renu.ka Yara):

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Heard Ms. Dirya Adepu, learned Special Government Pleader attac:hed to the ofhce of the learned Advocate (leneral for the State of^'Telangana, appearing for the appellants, Sri Vedula Srinivas, learned Senior Counsel appearing for Mr. l(. pradeep Reddy, learned counsel for respondent Nos.4 :rnd 5 in W.A.No.1639 of 2017, Sri Vedula Venkata Raman,a, learned Senior Counsel appearing for M/s. Bharadwaj Associates for the respondents iir W.A.No. 1661 of 2OlZ . perused the record.

¶88

The altpcals are preferred by the appellants/ respondents aggrieved bv the impugned common order dated 07 .O3.2O17 passed by a lt:arned Single Judge in W.p.Nos.13g10 zmd 16754 of 2O08. In tl-re said order, the appellants were direc tecl to pay costs of Rs.20,000/ to the respondents in each lr,rit petition; declared the zrction of writ appellant No. 1 in constrrrcting the compound vrrlil covering the land of the resportdents in Sy.No.318/ 1, situated in Gaddiannaram Village, Asmangadh, Malakpet, Hyderabad, as illegal, violative of Article 3OO-A of the

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2 WA.Nos.1639 &¹⁶⁶¹ of²⁰¹⁷

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Constitution of India,^{contrary to the orders passed by the P'A'} No'821392178, to Collector, Hyderabad^{District in} dt. 14.08.1980 as confirmed^{in Commissioner, Survey Settlement} Land Records, Andhra^{Pradesh, Hyderabad,in Revision Petition} Case No.R.O.R. ll2golaO^{dt.14.09.1981 and the judgment of the} VII Junior Civil Uudge,^{City CivilCourt, Hyderabad,} dt. 14.10.1998 in^{O.S.No.39O3of1986 aldconfirmed in} judgment dt. 12.O9.2000 in A.S.No.176 of^{7999 on the file of the} Chief Judge, City Civil^{Court,Hyderabad and consequently} directed writ appeliant^{No.1 to demoiishthe compoundwall} constructed by appellant^{No.1 over and above the landof} Ac.3.OO gts. covered^{by the Monument Mons, Raymonds Obelisk} (for short 'the subject land')^{and further directedthe appellants} not to encroach upon^{the land of the respondentsin} Sy.No.3 18/ 1,^{GaddiannaramVillage, Asmangadh,Malakpet,} Hyderabad.

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.) The respondents^{frledthe writ petitionswith the following}

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prayers:

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" to direct the^{Commissioner SurveyandLandRecords(2"d} respondent) to^{survey the land of theState Archaeological} Museums Department^{(l't respondent) arld fix the boundariesas} per the orders of the^{PA to the Collector, HyderabadDistnct in} his order dt.14.08.1980^{inE21392/7a as conhrmed by the}

¶95

\XrA.Nos.1639 & 1661of 2017

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Cornmissioner, Survey Settlement Land Records in ltis order dt.14.09.1981 in Revision Petition No.RORll29O/80 and^.urther to direr thc 1"t respondent herein to demolish the compound rvail cc,rrstructed in deviation from the orders of the aforesaid aulhor ties".

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Brief facts

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The rt:spondents in both the writ petitions are ()laiming to be owners^()1' land admeasuring Ac.3.OO gts. in S1'.No.318/ 1 Gaddi Annarilm Village which was originally o\rned by H.E.H The Nizam the VII (for short 'the Nizam') and u.as pul-chased by Naseem Fatima and Saleema Fatima on 03.1O. 1964 ald O2.O9.1963 r,ispectively. The respondents in W.A.No.1639 of 2Ol7 purchased Ac. 1.0O cts from Naseem Fatima on 20.08.1966, the said lald was divided into six plots ald five plots were sold. Similarly, the respondents in W.A.No. 1661 of 2077 are clairning different extent of land through their vendor Saleema Fatinta.

¶100

There is a history of proceedings before the revenue authorities frl' rectification of entries to reflect the name of the H.E.H. Nizanr as the owner and possessor of land in Sy.No.31B/ 1 try deleting the term 'sarkari'. The said pr.oceedings are orders of rhe PA to the Collector, Hyderabad District in his order dt. 14.08.1980 in 82/392178 as conhrmecl by the

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WdNos.1639 &¹⁶⁶¹ of²⁰¹⁷

¶102

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Commissioner, Survey^{Settlement LandRecords in his order} dt.14.09.1981 in Revision^{Petition No.ROR/1290/80. The said} proceedings before the revenue^{authoritiesended in favourof} the respondents in both^{the writ appeals. Consequently,the} name of the H.E.H. Nizam is^{reflected as ownerof the land in} Sy.No.318/¹

¶104

Apart from the^{proceedings before therevenue} authorities, the respondents^{in W'A.No'1639 of 201'7have frled} O.S.No.39O3 of 1986^{seeking perpetualinjunctionagainst the} writ appellant No.1 with^{respectto land to an extent of Ac' 1'0O} gts. consisting of six house^{plots inSy'No'318/ 1of} Gaddialnaram Village and^{said suit was decreed by judgment} and decree dated^{14. 1O. 1998. Further,the appeal hled by writ} appellant No.1 challenging^{the judgment and decree passed by} the Civil Court in^{A'S.No.176of 1999has been dismissedby the} learned Chief Judge,^{City Civil Court, Hyderabad uide judgment} d.ated, 12.O9.2OOO^{and said judgmentbecame final as the writ} appellant No.1 did^{not challengethe same by frling Second} Appeal.

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7 Lastly, there was^{an attemptmade to acquire the land in} question by the A.P.trlectricity^{Board ald the same was}

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WA.Nos.1639 & 7661 of 2O17

¶107

¶108

challenged trefore the High Court in W.p.Nos.4950 and 5322 of 1986 and the respondents were granted with stay from dispossession. In view of the culmination of a1l the proceedings before various forums in their favour, the responderrts in both the writ appeals filed writ petitions seeking reliefs prayed for i.e. survey of subject land to declare the construction of compound wall around the subject land as illegal and to dernolish the same.

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Contentions of the Appellants:

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The czrse of the writ appellants is that the land in question is arL ancient monument existing in 3.73 he<:tares and 36 square meters of land as per extract of Tor.r.n Survey Larrd Register and said monument is risted in Gazette Notiiication No.49/1111 lTArchaeolog,/S1, dated 12.01.1953 issued by the Education De partment (Archaeolory) . In said notific ation, the monument is referred as^,Mons Raymonds Obelisk,, ,N4usa-Ram Bagh (H) Sr-rburb)' 'resting place of Michel Joachim Marie Raymond, a lrrench Offrcer who was originally in Tipu Sultan.s service but surbsequently joined the Nizam,s service, and that 'monument isr u,ell protected and maintained,. On thr: basis of aforementioned documents, the writ appellants claim that the land in question belongs to an ancient monument which is

¶111

WANos.1639 &¹⁶⁶⁷ of 2017

¶112

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notified as early as 1953^{and has been well protectedarrd} maintained ever since.^{According to the writ appellants,3'73} hectares arrd 36 square^{metersapproximatelyequalsto Ac'7 '28} gts. and the same is surrounded^{bY comPoundwall protecting} the resting^place of^{RaymondsObelisk', Ann Janettrlizabelh} Jenkin, two dogs and^{a horse. Upon examiningthe case of the} rival parties, the learned^{SingleJudgeon the basis of the} frndings given by the^{revenue authorities and the Civil Courts} allowed the writ^{petitionsleading to hling of the presentappeals'}

¶114

g. The learned counsel for^{the writ appellants argued that} the prayer of the^{respondents is entirely civil in natureseeking} locaTizationlidentihcation^{of the respondents'land and that sale} deeds produced by the^{respondents do notshow an} archaeological monument^{as one of theboundary'} Consequently, it is^{argued that the land of the respondents is} not within conhnes^{of the ancient momrmentwhose wallswere} in existence for more^{than 40 years ald .therefore, the} respondents are not^{entitledto the relief sought'}

¶115

Referring to the^{judgment of the learned Single Judge,} reference is made to the observation^{that the boundarywall} "appears" to have been constmcted^{inviolationof the Civil}

¶116

7 WA.Nos.1639 & 1667 oI 2017

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; l I

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Court's jud,lment of permanent injunction in fav<>ur of the respondents

¶119

A refe.rence is made to three sale deeds dated ).7.06.1967 executed b1. .:espondent No.l in favour of responderrt Nos.2, 4 and 5 in W.A..No.1639 of 2Ol7 coupled with rough s;ketch and Deed of Re.lease dated 24.06. 1967 executed in favour of respondent No.l coupled with rough sketch. It is a:gued that the sale deeds of the respondents in both writ appeals do not disclose existr:nce of any monument ald therefore, there is no cause of ac:ion for hling a writ petition. A perusal of said documents, more particularly, Deed of Release, dated 24 .06.1967 shou,s the northern boundary as ,Moosaram plot form and M<l-rument'. The sale deeds dated 27 .06 .7967 show the northern troundary as Tomb of Mosaremo, and Tornb area,.

¶120

The iearned counsel for the writ appellalts refer.red to the definition of a.n ancient monument as referred in Sectic,n 3 of the Telangana Ancient and Historical Monumerrts and Archaeological Sites and Remains Act, 196O, which reads as under:

¶121

'A1l ;mcient and historical monuments ancl all archzreological sites and remains which have }>een

¶122

WA.Nos.1639 & 1661 of 2017

¶123

¶124

declared by the 8 [Ancient^{MonumcntsPreservation Act,} 1904 (Central Act 7 of 1904),^{or the Hyderabad Ancient} Monuments Preservation Act^{(Hyderabad Act VIII of} 1337 F.), to be protected monuments^{but which have} not been declared by or under^{law madeby Parliament} to be of national importance,^{shall be deemed to be} ancient and historical monuments^{orarchaeologlcal} sites and remains declared^{to be protected monuments} or areas for the purposes of this^Act"-

¶125

The learned counsel^{for the appellantssought to negate} the findings of the revenue authorities^{alleging that the said} orders do not throw light on^{the boundariesof the land of the} respondents and also do^{not disclose the location of landowned} by them. Further, the^{judgment and decree of the civil Courts in} O.S.No.39O3 of 1986 and A.S.No.176^{of 7999 are soughtto be} negated on the ground that^{said suit was frled seeking perpetual} injunction with respect to^{1 Acre of land only, that too by the} respondents in W.A.No.1639^{of 2Ol7 only and that the writ} appellants in W.A.No.166l^{of 2Ol7 are not parties tothe} proceedings before the civil Courts.^{Lastly, it is ernphasized that} the entries in Telangana Survey^{Land Records (TSLR) and} Gazette notifrcation of the vear 1953^{are completely ignored'}

¶126

The learned counsel for the appellants^{referred to the} judgments of the Hon'ble Supreme Court of India in^{State of}

¶127

\YA.Nos.1639 & t661 of 2017

¶128

¶129

A.P. vs. Hyderabad Potteries Pvt. Ltd. and anotherl, Palem Chandra Shekar and others vs. Palem Bikshpathy and othersz, E. Achuthan Nair vs. P. Narayanan Nair and another3, Mohan Pandey and another vs. Usha Rani Rajgaria (Smtf and othersa and Roshina T vs. Abdril Azeez K.T. and, otherss referring to contentions of various parties without referring to lindings of the Court. Therefore, said citations cannot be of assistance to the writ appellalts.

¶130

The respondents while hling the writ petit.ons have sought re sut'r/ey of the land covered by the monuments which is within the cc,nfines of a compound wall for r.l,hich the writ appellants h ave consented in their counter. Hou.ever, the learned SingLe Judge without ascertaining the location of the land of the respondents has passed the order of demolition of the compound wall in order to deliver possession of the land to the responderLts. In that context, the learnecl counsel for the appellants referred to the judgment of the Hon,ble Supreme Court of Indi,t in the case between Union of India and others

¶131

AIR 2010 SC 2 /r;0

¶132

2019 SCC OnL re TS 3,184 (r987) 4 SCC 71

¶133

(1992) 4 S(la (,1

¶134

r)[rqi: s,'c ii,,

¶135

WA.Nos.1639 & 1661of²⁰⁷⁷

¶136

¶137

vs. Dinesh Prasad6,^{wherein,it is held that no reliefto a party} can be granted on^{the grounds not taken in the writ petition and} it is not^possible to^{grant relief beyond pleadings'Further,} learned counsel for^{the appellants referred to judgment of the} Hon'ble Supreme Court^{of India inthe matterof Rajeev} Mankotia vs. Secretary^{to the President of India aad othersT'} wherein, it is held that^{it is the duty of the Union of Indiaarld} the State Governments^{toprotect and preserveancient} monuments. Said matter^{related to the ViceregalLodgeas a} protected monument^{included the land appurfenant to it' It is} argued that contrary to^{the finding given by the Hon'ble} Supreme Court of India^{in Rajeew Mankotia (7 supraf'the} learned Single Judge^{directed to demolish the boundarywall} without enquiry and^{without survey. Lastly, the iearned counsel} for the appellants^{reliedupon the judgment of this Court in} W.A.No.484 of 2017, in^{the matter between the District}

¶138

Collector, Hyderabad^{and SyedJahangir, wherein, it is held as} follows:

¶139

"4a. The issues involved^{in this appeal are the material}

¶140

\ \ questions which require to be^{decidedon exarninationof} evidence and on materia-I documents^{and the same cannot be}

¶141

6 (20r2) 12 scc 63

¶142

'^{1997( to) scc 441}

¶143

WA.Nos.1639 & 1661 of 2017

¶144

¶145

decided in the writ petition. These questions in our view were pure questions of facts and could be answered one wa1. or the other b]. the competent civil court in properly constitut,rd civil suit on the basis of the evidence adduced by the parttes but not on -he documents frled in the writ jurisdiction. Fr_rrther, thc veracity of the said documents has to be examined as per the prorisions of the Evidence Act.

¶146

Further, the remedy under Article 226 tff tine ConstitrLtion of India shall not be available except where there is infringement of right of the persons by the action of the staturtory authorities and this Court exercising power under l tLe writ jurisdiction cannot decide the di:;puted questior s, as there is availability of remedy under the general law. In catena of judgments Supreme Court held th at the pou,er urder Article 226 of the Constitution of India is not intendec to replace the remedy available to the person aggrier-e,l by hling a civil suit. (see Mohan pandey v. Usha Rani Rajgariae and Dwarka prasad Agarwa.I v. B.D.Agarwale)".

¶147

Contentions of Respondents in W.A.No .1661 of2OI-7:

¶148

Sri Ve.rlula Venkata Ramana, learned Senior Counsel appearing for the respondents in W.A.No.166l of 2OlZ referred to the Telangana Ancient and Historical Monum,:nts and Archaeological Sites and Remains Act, 1960 to emphasize that the sections therein show that the State Government lLas power to protect the monuments, declare certain structures as ancient

¶149

' 119921^{4 sr.c r,} w ' (zoo3) 6 s<tc:-rn

¶150

WA.Nos.1639 & 1661of^2Ol7

¶151

¶152

, I

¶153

monuments, to^{acquire the monumentsand their maintenance,} protection, etc., but does^{not give any scope for claiming} ownership. Learned^{Senior Counselreferred to the judgmentof} the Hon'ble Supreme^{court of India in the matter of Roma} Sonkar vs. Mahdya^{PradeshState PublicService}

¶154

Commission and anotherlo,^{wherein,it is held as follows:}

¶155

"We have very serious^{reservations whetherthe Division} Bench in an intra court^{appealcould have remitted a writ} petition in the matter of^{moulding the relief lt is the} exercise of^{jurisdictionof the High Courtrrnder Article} 226 of ttre Constitution^{of India- The learnedSingieJudge} as well as the^{Division Bench exercised thesame} jurisdiction. Only to avoid inconvenience^{to the litigants'} anottrer tier of screening^{by the Division Bench is provided} in terms of the^{powerof the High Court but that does not} meal that the Single^{Judge is subordinateto the Division} Bench. Being a writ^{proceeding, the Division Bench was} called upon, in the^{intra courtappeal, primarilyand mostly} to consider the^{correctnessor otherwise of the view taken by} the leamed^{Single Judge.Hence,in our view, the Division} Bench needs^{to consider the appeal(s) on merits by deciding} on the correctness^{of the judgmentof the learnedSrnglc} Judge, instead^{or remitting the lnatterto the learnedSingle} Judge".

¶156

17 . on the basis of above^{frnding of the Hon'bleSupreme} Court of India, the learned^{Senior Counsel appearingfor the}

¶157

'o^{(2018) l7 scc106}

¶158

WANos.1639 & 1661 ot 2017

¶159

¶160

i I I i I I i i I t I ii I

¶161

respondents :n W.A.No.1661 of 2Ol7 argued that 1.his Court does not havt: jurisdiction to look into the merits of the order passed by th,: learned Single Judge.

¶162

Contentions of Respondents in W.A.No.1639 of 2017

¶163

Sri Vedula Srinivas, learned Senior Cor-insel apltearing for the respondents in W.A.No.1639 of .2017 argued that the documents rr:Jied upon by the writ appellants do not prove their title and are also not of assistance in proving the extent of lald covered bv tlir-- monument. It is argued that besides the Tombs of Raymonds^()belisk, Ann Janet Elizabeth Jenkin, twc, dogs and horse, there is al open land and said land belongs to the responden ts.

¶164

Learnr'<l counsel for respondents in W.A.No. 7639 of 2Ol7 while relying upon the arguments forwarded by the learned senior counsel for the respondents in W.A.No. 16 6 j of 2017 argued that 1.tre writ appelialts have failed to prove^.:heir case before the rrl'renue authorities as well as Civil Cc,urts and therefore, car,not claim any relief in the present q/rit a.ppeals. It is argued thar the order of the learned Single Judge is based on findings of the revenue authorities as well as Civi1 Courts which .-\gve categorically given hndings in favour of the respondents

¶165

WA.Nos.1639 & 1561ot^2Ol7

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d.eclaring them as^{ownersof the land in Sy'No'318/ 1 on the} basis of entries in^{pahaniesas well as registered sale deeds'} About the genuineness of^{entries in TSLR, the learned Senior} Counsel relied upon^{judgment of the High Court of Judicature,} Andhra Pradesh at^{Hyderabadinthe matter of Hyderabad} Potteries Pvt. Ltd.^{Vs. Collector'Hyderabad District and} anothern, wherein, it^{is held as follows:}

¶168

"A bare reading of scheme^{ofthe A PSurvey and} Boundaries Act,^{1923 would makeit clear that the survey} made under the said Act^{ismainlyintendedforthe} purposes of identifrcation of^{tJle landsar.rd fixation of} boundaries. There is no^{provisionunder the Actintendingto} make any detail enquiries^{wrth regardto the right, titleand} interest of the^{persons in the lands.It is neither the object} nor the scheme of the^{said Act. There is no presumption} that every entry made^{in the TSLR shall be prcsumed to be} true until contrary is^{proved as in the case of entriesmade} in me record of rights^{under the provisionsof A P' Record of} Rights in Land Act,^lg7 l.^{It is not a recordof rightThereis} no such^provision in^{the Andhra PradeshSur-veya:rd} Boundaries Act,^1923".

¶169

Findines of the^Court:

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2C.. Having^{perusedthe record, the oral arguments,written} arguments and the^{citations relied by the respective counsel for}

¶171

"^{2ool(3) ALT 2oo}

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WA.Nos.1639 & 1661 of 2Ol7

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I I i I

¶175

the writ apl)ellants and the respondents in botlL the writ appeals, ther,: zu'e certain predominant points to be noted. The frrst and foremost is that the subject property c:onsists of structures srtrrounded by a compound wall which is cleclared as ancient ntonument. The Gazette notification- dated I 2.01. 1953 shows the subject property as an ancient monument at Serial No.23. When relief is sought by private parties for lald housing an ancient rlonument and for demolition of walls strrrounding the monumer..t, the sarne requires certain amount of caution as contended b.i the learned counsel for the writ appellants on the basis of judgrnent in Rajeev Mankotia (7 supra), wtrerein it is held that the State and Central Governments have a duty to protect ancie'nt monument. Accordingly, the State anci Central Governments, are maintaining the same by constructing a compouncl u'a1l around the monuments. The photographs filed by the u,nt appellants show that the ancient morrument is indeed u,ell rrLaintained with compound wall and flooring. The photographs shor,,' the distinct structllres being o d as the architecture r: learly does not belong to present day construction parlance.

¶176

WA.Nos-1639 & 1661 ot 2017

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¶178

The writ appellants^{resisted theattempts ofthe} respondents in both the writ^{petitionsbefore the civil courts ald} revenue authorities, but^{were unsuccessful in proving their case} on the basis of record.^{The revenue authoritiesgave hnding in} favour of the HEH^{Nizam. The respondents in both the writ} petitions are tracing their title^{through their vendorsNaseem} Fatima and Saleema^{Fatima. The sale deeds dated27 06 '1967} and Deed of Release^{d,ated24.06-1967 clearlyreflect that the} northern boundary of^{the allegedplots is the platform of a Tomb} or platform of ancient^{monument.The very descriptionof} northern boundary^{shows that the ancient monument is on a} platform which is the northern^{boundary' The docurnents} produced by the respondents^{themselvesshow that thereis} certain demarcation of the^{ancient monument in the form of a} platform. When the respondents^{inW.A'No'1639 of 2OI7} approached civii Court^{uideO.S.No.3903 of 1986, the burden of} proof is on them to^prove that^{the writ appellants have} encroached into their^{land by exceedingthe northernboundary} platform. There are no such^{pleadingsor frndings'Merely on the} &sis of ownership allegedly^{proven through the registered sale} \ deeds emanating from the^{HtrH Nizamand the subseqrrent} vendors, the Civil Court^{granted perpetual injunctionin favour}

¶179

WA.\os.1639 & 1667 ot 2077

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¶181

of respondents in W.A.No. 1639 of 2OlZ. The suit was fi1ed way back in the vear 1986 seeking perpetual injunction arleging that the u,rit ap1;,,-llant No.l is attempting to dig trenches in the propertJ* of the respondents without title and they di1 not heed to the resistance of the respondents and sintte the s ame is not denied, perpetual injunction was granted.

¶182

According to the writ appellants, the compounC wall had been in existence for more than 40 years. While so, ac:cording to the responderLts in W.A.No.1639 of 2OlT, the writ appellant No.1 made atteml; ts to dig trenches in the year 19g6. When the respondents cpposed digging of trenches in the vear 1986 when there was no wal1, a question arises as to whv the re spondents did not seek r,:lief to prevent the construction of u,all l.ry the writ appellants aftr:r obtaining the decree of perpetual injunction. In this regard, i.e. construction of compound wall ar.ound the monumenr, the learned Single Judge in his order at paragraph No.38 has helcl as follows:

¶183

"38. .-he contention in the counter afhdavit filc.d on f7.O4 2072 in W.p.No.138tO of 2OO8 that compounct wail was constructed 40 years back, is a false cont€ntion because , if so, it should have been constructed bv t972 Hor.r'er e:', in the written statement hled by thr: 1"t respondent in O.S.No.39O3 of 19g6, no such pleadingl was

¶184

WA.Nos.1639^{& 1661of2O'17}

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raised. It was only^{stated. that it was lookinga'fter t-lle suit} area with the^{help of servantsby erectingboundarystones} and by putting^{sigr boards-If the compoundwall hadbeen} in existence sitce^{1972, the 1s respondent as defendantin} the suit O.S.No.39O3^{of 1986,would not have omitted to} mention it in the^{wdttenstatement'In fact in the said suit'} it was clearly^{held that the "Raymond;sOtrelisk" was not} located in the^{landclaimed by the petitioners/plaintiffs} therein. Thus it^{is clear that after the decision of the Civil} court, the l"t^{respondent built the compound wall in gross} violation of the^{perpetualinjunction grantedby the Court} and the land^{belongrngto the petitionerswasgrabbed} highhandedly^{by it. Such conduct of the l"t respondent'a} Government^{Department,is to be stronglydeprecated and} cannot be countenanced".

¶189

The above^{frn<lingshows that the learned Single Judge} heldthatthecontentionofthewritappellantsthatthe compound wall^{was constructed 40 years back is afalse} contention on^{the premisethat the written statementfrled by} respondent^{No.1 in O.S.No.3903 of 1986has no such pleadings'} In this context,^{it is pertinent to note that existence or non-} existenceofawallhastobeprovenbytherespondentsin W.A.No. 1639 of^{2Ol7 who have approachedthe Civil Court vide} O.S.No.39O3 of^{1986, but not writ appellants' There isan} erroneous^{presumptionthat in case, the vvall existed' the same} would have been^{mentioned in the written statement'Further' it}

¶190

WA.\os.1639 & 1667 of 2O17

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¶192

is held that t1e monument^,,Raymond,s Obelisk,, was not located in the land (r aimed by the respondents. In case, th€ salne was true, the respondents herein would have no ground to seek demoiitiorr o' the compound wall.

¶193

There is a hnding to the effect that the r.r.rit appellant No.1 has bu:lt the compound wall in gross violatjon of the perpetual irjunction granted by the Court and the land belonging to the respondents was highhardedly gr.abbed by appeilant No . The said frnding does not stand to sc:rutiny for the simple reason that when the respondents in W.A.No.1639 of 2Ol7 approa,:hed the civii Court for remedy in the vear 1986 when trenchr:s were dug, nothing prevented them from approaching rt civil Court or the writ Court seeking appropriate relief, in case, lhe compound wall was highhandedlv constructed at any point of time, in the interim bet\4,een 1986 and 2008.

¶194

25 There is a hnding given by the learned Single Judge with respect to ext.?nt of the land covered by the monr,rment as follows at parzqJraph No.39 of the impugned order :

¶195

"39. Also in the suit, the 1st respondent had claimed that only Ac ll-OO cents had been given to the Archaeolcgical Department for protection of the satd monument. But now, it is contending in the counter affidavits that Ac 7_2g

¶196

WA.Nos.1539 & 1661^{oI 2Ol7}

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¶198

guntas is covered by^{compoundwall Neither for the Ac3-OO} guntas nor fot Ac^{7 -28 guntas,is any scrap of paper frled by} the 1st respondent^{to showthat it was allottedto it by any} authority. Thus^{itis not actingbonafrde' It's actionis} highhanded ald^{amountsto land grabbing without any} right, title or^{interesttherein".}

¶199

The learned^{Single Judge erroneouslyheld that the} appellant No.1^{claimed Ac'3-OO cents was given toit} (Archaeological^{Department) for protection of the monument'} but is claimin^{g Ac.7 28 gts. as being covered by compoundwall} while {iling counter^{in the writ petitions' The Town Survey Land} Records (TSLR)^{shows that the land belongingto the monument} is to al extent^{of 3.73 hectares and 36 sqlrare meters' Said} extent when^{convertedinto acres would be Ac'7 -28 gts'} approximately.^{Therefore, we are of the consideredopinionthat} the learned.^{SingleJudge erred in his assessmentof extent of} landwithintheconfinesofthecompoundwallsurroundingthe monument^{for the past 40 years due to error in readingthe} extent of monument^{as mentionedin TSLR'}

¶200

Learned^{senior counsel for therespondentsin} W.A.No.1639 of 2Ol7^{has placed relianceon Hyderabad} Potteries hft. Ltd.^{(11 supra)to contend that entriesmade in} TSLR cannot^{be presumed to be true' Assumingfor a moment}

¶201

\ I

¶202

¶203

2l WA.Nos.1639 & 7667 of 2017

¶204

that the entries in TSLR are not true, the fact remains that Ac.728 gts. of 1anrl is covered by a compound wa11.

¶205

The curden of proof is clearly on the pa.rty which approaches -he Court seeking relief either before the Civil Court or the Writ^(irurt. The respondents in the writ appeals ought to have filed a civil suit for identification of their property arld demolition ol the compound wa,ll. Alternatively, rvhen they approached the Writ Court seeking to demolish the compound wall of an ancient monument, the respondents ouglrt to have fi1ed conclusi.,re documentary proof as to when the compound wa-ll came into existence and that their lancl is encroached. Instead, the lr:spondents have sought relief of Writ of {andamus to direct the writ appellant No.2 to survey the land and fix boundaries €rs; per orders of the p.A. to Collector, ilyderabad District in llo.B2/392/78, dt. 14.08.198O as conhrmed in Commissioner, Survey Settlement Land Records. Andhra Pradesh, t yderabad, in Revision petition Case No.R.O.R./12!)0/80 dt. 14.O9.1981. The prayer sought by the respondents squarely attracts the legal ratio laid dou.n by this Court in W..A.No.484 of 2Ol7 i.e. material cluestions which

¶206

WA.Nos.1539 &^1661of2017

¶207

¶208

require examination^{of evidence and documentscannot be} decided in a writ Petltlon

¶209

The very^{fact that the respondents in the writ petition} have sought survey^{of the lar,d for the purpose of hxing} boundaries shows^{that they do not have any poof as to location} of their land on^{ground, more particularly, within confrnes of the} compound wall^{of the ancient momrment' In this context' it is} also pertinent to^{note that the learned Single Judge exceeded} the prayer of the^{respondents who have sought survey of land} for the^{purposeof hxing boundaries and consequentlysought} demolition of compound^{wall- Wtrile so, the learnedSingleJudge} without ordering^{surveyhas given a direction to demolish the} compound^{wa1l.The learned SingleJudge failed to consider the} fact that the^{respondents in both the writ appeals did not} produce any documentary^{proofas to the locationof their plots} within compound^{wall of the monumentto seek demolition'In} the absence^{of documentaryevidenceto show the exact location} of the plots of^{the respondents, it is not possibleto take up} demolition of^{compound wall as there are no details as to the} direction and location^{of the plots covered by the monument'}

¶210

WA.\os.1639 & 1661 of 2017

¶211

¶212

For tre foregoing reasons, as per legal ratio ie.id clown iri Roma Sonkar, when the correctness or otherwise of the order passed bv the learned Single Judge is examined, we are of the considered opinion that the order passed by the lear.ned Single Judge is erroneous on three counts of non_existence of compound u all for 4O years, its construction in violation of the judgment passed by the Civil Court in O.S.No.39O3 ot- 1986 and order to demc,iish the compound wall by exceeding the prayer of survev soughl by the respondents in both the u.rit appeals.

¶213

Thus, both the Writ Appea_ls are allou,ed and the impugned c,l mmon order of the learned Single Judge in W.P.Nos.138t,l alld 16T54 of 2OO8, dated 07.03.2()17 is set aside. Howevr:r, this judgment will not come in tl re rvay of respondents -o avail the remedy available under the civ raw, if iaw so permits. There sha1l be no order as to costs.

¶214

As a sequel, Miscelianeous petitions, pendir rg if any,

¶215

stand disposec of.

¶216

SD/-K. SRINIVASA RAO OINT REGISTRAR

//TRUE COPY//

ECTION OFFICER

To,

1 The Director, State Archeological^{Museums, Governmentof Telangana, (Previously} shown as Goven.nent of^{Andhra Pradesh), Gunfoundry, Hyderabad.}

¶221

2 i6e Commissioner, Survey^{and Land Recirrds Settlemi:nt, Government of Telangana} (Previouslv shown as Govi;rnment of Andhra Pradesh), Hyderabad

¶222

J ine Secti'on Offirer, Posting Section,^{High Court ior the State} ')f^{Telangana at} Hyderabad.

¶223

4 Tlie Section Officer, Writ Non-service^{Section, High Court for theState of Telangana} at Hvderabad.

¶224

5 One'CC to SRI K PRADEEP^{REDDY, Advocate} [OPUC] b One CC to M/s. BHARADWAJ ASSOCIATES,^Advocate [OPUC] 7 Two CCs to ADVOCATE GENERAL, High Court for^{the State rf Telangana at} Hyderabad [OU!

¶225