WP/17409/2004 of Kunduru Ramakrishna Reddy Vs The State of A.P.represented by its District Collector on 31 December 2008

* THE HON’BLE SRI JUSTICE V.ESWARAIAHANDTHE HON’BLE SRI JUSTICE K.C.BHANU

<+ WRIT PETITION NOs. 15316 and 17409 of 2004

% 31-12-2008

<+ WRIT PETITION NO. 15316 of 2004

A.Diwakar

...Petitioner.

Versus

$ 1. The State of A.P., rep. by the District Collector, Hyderabad. 2. Kunduri Ramakrishna Reddy. 2. Kunduri Ramakrishna Reddy.

...Respondents.

! Counsel for the Petitioner: Mr Syed Shareef Ahmed ^ Counsel for the Respondents: G.P. for Revenue <+ WRIT PETITION NO. 17409 of 2004

Kunduru Ramakrishna Reddy

...Petitioner.

Versus

$ 1. The State of A.P., rep. by the District Collector, Hyderabad. 2. A.Diwakar. 2. A.Diwakar.

...Respondents.

! Counsel for the Petitioner: Mr A.Ravinder ^ Counsel for the Respondents: G.P. for Revenue < Gist:

Head Note:

? Cases referred:

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)

WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENTTHE HON'BLE MR JUSTICE V.ESWARAIAHand THE HON'BLE MR JUSTICE K.C. BHANU

WRIT PETITION No.15316 of 2004

Between:

A. Diwakar S/o. Late Lakshminarayana R/o. Door No. 8-2-310/A, Road No. 14, Banjara Hills, Hyderabad.

..... PETITIONER

AND

1 The State of A.P., rep. by the District Collector, Hyderabad.

2 Kunduri Ramakrishna Reddy S/o. Sri K. Gopal Reddy R/o. at C/o. Dr. C.S. Reddy, Road No.12, Banjara Hills, Hyd.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court maybe pleased to Issue rule nisi calling for the records, leading upto andinclusive of the judgment and decree made in L.G.C.No. 157 of 1996 onthe file of the Special Court, constituted under the A.P. Land Grabbing (Prohibition) Act at B.R.K.R. Bhavan Buildings, Hyd, and quash the saidorder and decree made in L.G.C.No.157 of 1996 dt. 22.6.2004 in respectof the directions issued to the respondents 1 and 2 therein i.e., in L.G.C.declaring that the respondents therein are not legally entitled for theapplication schedule land in the above L.G.C. by issuing an appropriatewrit, order or direction, particularly one in the nature of Certiorari.

Counsel for the Petitioner:MRSYED SHAREEF AHMED

Counsel for the Respondents: GP FOR REVENUE

The Court made the following :

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)

WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENT

THE HON'BLE MR JUSTICE V.ESWARAIAH

and

THE HON'BLE MR JUSTICE K.C. BHANU

WRIT PETITION NO : 17409 of 2004

Between:

Kunduru Ramakrishna Reddy S/o.Gopal Reddy R/o.8-2-269/1, Banjara Hills Presently residing at Gopi Krishna Function Hall Hanumakonda, Warangal

..... PETITIONER

AND

1 The State of A.P.represented by its District Collector Hyderabad.

2 A.Diwakar S/o.Late Lakshmi Narayana

R/o.H.No.8-2-310/A Road No.14, Banjara Hills, Hyderabad.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to to issue an appropriate order or direction more particularly onein the nature of writ of Certiorari by calling the records pertaining to theorder and decreee passed in L.G.C No.157 of 96 dated 22.6.2004 on thefile of the Special Court under A.P.Land Grabbing (Prohibition Act)Hyderabad inrespect of direction issued to the respondents therein LGCdeclaring that the respondents therein are not legally entitled for theapplication schedule land and quash the same and pass.

Counsel for the Petitioner:MR.A.RAVINDER

Counsel for the Respondent No.: GP FOR REVENUE

The Court made the following :

THE HON'BLE MR JUSTICE V.ESWARAIAHand THE HON'BLE MR JUSTICE K.C. BHANU

WRIT PETITION Nos.15316 and 17409 of 2004

COMMON ORDER:(per the Hon’ble Sri Justice V.Eswaraiah)

Heard both sides.

2. These two writ petitions arise out of a common judgment anddecree, dated 22-06-2004, in L.G.C.No.157 of 1996 on the file of theSpecial Court under the A.P. Land Grabbing (Prohibition) Act,Hyderabad. The said L.G.C. was filed by Y.S.M.Lakshmi and fifteenothers against the petitioners and the 1[st] respondent in both the writpetitions, under Section 8(1) of the A.P.Land Grabbing (Prohibition) Act,1982, (for short ‘the Act’) through their G.P.A. Holder SriP.Koteswara Rao stating that the petitioners herein grabbed an extent of800 sq. yards of land in Sy.No.403 of Shaikpet Village, Golconda Mandal,Hyderabad and, therefore, they are liable to be prosecuted and punishedfor committing the offence of land grabbing under the provisions of theAct and also to restrain them by way of perpetual injunction fromgrabbing the application schedule land either by way of causinginterference with the applicants’ possession in any manner whatsoever orin the alternative the applicants be put in possession over the scheduleproperty by evicting the respondents.

3. The Special Court took cognizance of the case under Section 8 ofthe Act and the same was published in the A.P. Gazette No.216, dated30-09-1996, under Section 8(6) of the Act calling for the objections, but noobjections were received. In response to the said notice, the MandalRevenue Officer filed his report as required under Rule 6 of the Rulesframed under the Act.

4. It is the case of the applicants before the Special Court that theywere allotted the land admeasuring 50 sq. yards each totaling an area of800 sq. yards in Sy.No.403, Indiranagar Slum, Shaikpet Village,Golconda Mandal, Hyderabad, and the premises numbers were alsogiven independently in relation to the lands allotted to them. The saidproperty was assigned to them by the then Revenue Divisional Officer,Hyderabad, vide proceedings, dated 15-08-1989 in File No.F/8406/84under “Welfare Scheme of State Government” and the said Authorityissued Form “D” Certificates in their favour way back in 1989 and sincethen they have been enjoying the continuous and peaceful possession ofthe said property. While so, the petitioner in W.P.No.15316 of 2004 alongwith the Mandal Revenue Officer, Golconda, tried to interfere with theirpeaceful possession and enjoyment of the property in question. Aggrieved by the said action, the applicants filed W.P.No.10522 of 1996before this court, wherein interim stay of dispossession was granted.

5. It is further stated that the petitioners herein filed O.S.No.1819 of1996 on the file of the IX Assistant Judge, City Civil Court, Hyderabad,against the State for perpetual injunction in respect of 792 sq. mtrs. of landgiving same descriptive particulars of the property claimed by theapplicants. In the said case, the Government filed a counter stating thatthe property, which the petitioners herein claimed, actually belonged tothe Government and the same was assigned in favour of the applicants. The Government also filed an application in the said suit to appoint aSurveyor to locate the property in dispute in the said suit. After filing thesaid application by the Government and also the implead petition filed bythe applicants, the petitioners herein had withdrawn the said suit.

6. It is further stated that the applicants also filed O.S.No.3102 of1996 on the file of the V Assistant Judge, City Civil Court, Hyderabad, forperpetual injunction and the applicants sought to withdraw the same, inview of the changed circumstances. In the said case, a counter has beenfiled by the G.P.A. holder of the petitioner in W.P.No.17409 of 2004stating that an extent of 20 acres of land in Sy.No.129/11/Paiki was originally belonged to one Narayana, Ramulu and Ramaiah, who sold thesame to one T.V.Ramachandraiah, S/o.Venkataramaiah under tworegistered Sale Deeds, dated 16-04-1964. The petitioner inW.P.No.17409 of 1994, who is the 2[nd] respondent in the said L.G.C.,purchased Plot No.22, out of the layout bearing No.13/65 from the saidT.V.Ramachandraiah under a registered Sale Deed, dated 10-12-1966 for an extent of 792 sq. mtrs. Since the date of purchase, he wasin peaceful possession and enjoyment of the said property. Afterpurchase, the petitioner in W.P.No17409 of 2004 executed a G.P.A. infavour of the petitioner in W.P.No.15316 of 2004 on 16-04-1988for obtaining necessary sanction from various authorities for constructionof the building in the scheduled land. The petitioner in W.P.No.15316 of2004 obtained sanctioned plan on 09-08-1995. After obtainingpermission from the Municipal Corporation of Hyderabad, while thepetitioner in W.P.No.15316 of 2004 was constructing ground floor and firstfloor, the Mandal Revenue Officer, Golconda, issued a notice underSection 7 of the Land Encroachment Act, against which, the petitioner inW.P.No.15316 of 2004 filed W.P.No.13083 of 1996 before this court andinitially obtained stay of all other proceedings. During pendency of thesaid writ petition, he applied for regularization of encroachment to theGovernment and subsequently, the said writ petition was dismissed aswithdrawn.

7. It is the case of the petitioner in W.P.No.17409 of 2004 before theSpecial Court that the applicants in the said L.G.C. have no right, title andpossession over the property in question and they have no locus standi tofile the said L.G.C. The G.P.A. executed by the applicants to sell or makeany construction etc., is contrary to the provisions of Act 9 of 1977.

8. It is the case of the Government before the Special Court that theproperty in question belongs to the Government and the assignment wasmade in favour of the applicants and ultimately they have violated theterms and conditions of the assignment orders and also obtained pattasby misrepresenting the officials, and therefore, the assignment was cancelled.

9. On behalf of the applicants, only one witness was examined asPW.1 and got marked Exs.A-1 to A-54.

10. On behalf of respondents 1 and 2 therein, the 1[st] respondenttherein was examined as RW.1.

11. On behalf of the 3[rd] respondent therein, the Mandal RevenueOfficer was examined as RW.2 and the Mandal Surveyor was examinedas RW.3 and got marked Exs.B-1 to B-28. The Commissioners report andsketch were marked as Exs.C-1 and C-2 respectively.

12. On considering the oral and documentary evidence, the SpecialCourt held that the said land is a Government land and the Government isthe owner of the said land. Admittedly, the applicants are the assigneesand whose assignments were cancelled and, therefore, they are not theowners of the scheduled land.

13. It is further held that even RW.1, power of attorney holder of thepetitioner in W.P.No.17409 of 2004, admitted that he did not verify thesurvey records to find out whether Sy.No.129/11/Paiki is existing or not atthe time of entering into development agreement with the petitioner inW.P.No.17409 of 2004. He has also admitted that he filed an applicationfor regularization of the application schedule property accepting that it is aGovernment land. Though the petitioners herein raised a plea that theapplication schedule property is situated in Sy.No.129/11/Paiki, theyaccepted it as a Government land and applied for regularization. Therefore, it was held that the application schedule property is notsituated in Sy.No.129/11/Paiki as claimed by the petitioners herein and itis situated in Sy.No.403 of Shaikpet Village. Thus, it is held that thepetitioners herein have no right and title over the said property.

14. There is no dispute that the house site pattas granted in favour ofthe applicants were cancelled by the District Collector, through proceedings No.D4/2474/1997, dated 19-04-1997, and the cancellation ofthe said patta certificates for violation of the terms and conditions hasbecome final. Admittedly, the applicants had violated the terms andconditions of the assignment by entering into development agreementwith their general power of attorney holder Sri P.Koteswara Rao, whoconstructed commercial complex. Therefore, the Special Court held thatthe petitioners herein are the land grabbers and they have no legalentitlement and they are in unlawful possession. As the petitioners hereinare in possession of the application schedule property without any legalentitlement, in fact, they have applied for regularization of theiroccupation, which is said to have been pending before the authoritiesconcerned, the Special Court while dismissing the L.G.C. directed thepetitioners herein to handover vacant possession of the applicationschedule property to the State.

15. Though these two writ petitions have been filed on variousgrounds stating that they have perfected their title by adverse possession, during the course of examination, the petitioners realized that admittedlythe assignment of the house sites in favour of the applicants has beencancelled for violation of the terms and conditions of the assignmentorders and in fact, it is not disputed that they filed an application forregularization of their illegal possession, accepting that the land inquestion is not situated within the survey number as claimed by them, butit is situated in the survey number which belongs to the Government. They only restricted their relief that in a case filed by the applicants beforethe Land Grabbing Court, it is not open for the Special Court to grant reliefin favour of the Government, more so, when the Land Grabbing Case hasbeen dismissed. It is stated that the State Government is not the applicantin the L.G.C. and though the Special Court recorded a finding that theState Government is the owner of the said property and the petitionersherein are in illegal possession without having any legal entitlement,without taking recourse by the Government in appropriate proceedingseither under the Land Encroachment Act or the A.P.Assigned Lands(Prohibition of Transfers) Act, 1977 before the Special Court, it is not open for the Special Court to direct the petitioners herein to vacate andhandover vacant possession to the Government, as the Government is notan applicant, and more so, in somebody’s application, the Special Courtcannot direct the petitioners herein to vacate and handover vacantpossession to the Government.

16. We are not inclined to express any opinion with regard to theaforesaid contentions as the said contentions go beyond the scope of thecontroversy in the L.G.C. The controversy in the L.G.C. is whether theapplicants are the legal owners and whether the petitioners hereingrabbed their land. The Special Court held that the land admittedlybelongs to the Government and the said land was assigned in favour ofthe applicants and for violation of the terms and conditions of theassignment, the house pattas have been cancelled, and in fact, noticesgiven under the Land Encroachment Act are pending, it is always open forthe Government to evict the encroachers. But, we are of the opinion that ina Land Grabbing case filed by the applicants, which was dismissed, norelief can be granted directing respondents 1 and 2 therein, who arepetitioners herein, to handover vacant possession of the applicationschedule land to the Government.

17. Having regard to the facts and circumstances, we set aside theoperative portion of the judgment, which reads as follows:- “……… As respondents 1 and 2 are in possession of theapplication schedule land without any legal entitlement, they aredirected to handover vacant possession of the applicationschedule land to third respondent-State within two months fromthe date of this order. Else, the concerned Revenue DivisionalOfficer shall take possession of the same within two months afterexpiry of two months fixed above and submit compliance reportto the Court as per Rule 15(2) of the Rules framed under the Act.”

We confirm all other findings that the said land belongs to the Governmentand the possession of the petitioners herein in respect of the scheduledland is without any legal entitlement.

18. The writ petition is accordingly allowed-in-part as indicated above,keeping it open for the Government to recover possession of the land inquestion by evicting the petitioners herein, either by initiating proceedingsunder the Land Encroachment Act or taking any other legal recourse inaccordance with law. There shall be no order as to costs.

_________________

(V.ESWARAIAH, J)

Dated: 31-12-2008PrvL.R.copy

______________

(K.C.BHANU, J)

To

1.2CCs to2.2CD copiesForm-NIC-OGS/WP{JGK}

// TRUE COPY //

SECTION OFFICER