WP/15631/2007 of Andhra Bhasha Nilayam Telugu Grandhalayam situated at Vs Court of Special Tribunal for Land Grabbing on 24 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

WEDNESDAY, THE TWENTY FOURTH DAY OF DECEMBERTWO THOUSAND AND EIGHT

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

WRIT PETITION No.15631 of 2007

Between:

Andhra Bhasha Nilayam Telugu Grandhalayam situated atGrandhalayam Chourastha, Near Bharat Talkies of Karimnagar TTown and District Rep. by the President of Andhra Bhasha Nil TeluguGrandhalayam Society byname Brahma Chaitanya Gurudev son of Venkatesham. age 60 years Occ. Sangh Sevak residentof said Grandhalayam.

..... PETITIONER

AND

1 Court of Special Tribunal for Land Grabbing irst cases-cum-District Judge at Karimnagar District Judge.

2 MOhd.Naseeruddin s/o Jamaluddin,

3 Koppula Lakshmi d/o Mallaiah, aged

Occupant of a Tin Shed

4 A. Sathaiah s/o Lingaiah,

5 Gunda Shankariah s/p Mallaiah,

Occupant of a House

6 Kotta Ramaswamy Yadav s/o Aithu Ramulu, 7 Sandeboina Rajesham s/o late Odelu, 8 Pabba Vishwanadham s/o Venkaiah, 9 Sandeboina Kanakamma w/o Odelu, 10 Gunda Narasamma w/o Shankeriah, 11 Gunda Mallesham s/o SHANKERIAH, 12 Gunda Ramulu s/o Shankeriah, 13 Gunda Anjaiah s/o Shankariah, 14 Rajeshwari d/o Shankeriah, 15 GundA AnuraDHA D/O Shankeriah, under guardianship of G.Narsamma died through her elder brother 10th respondent G.Mallesham s/o Shankeriah, age 41 years, r/o Karimnagar.

.....RESPONDENTS

Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtwill be pleased to call for record of the Court of Special Tribunal ForLand Grabbing Cases-cum-District Judge at Karimnagar, FirstAddl.Dist.Judge, Karimnagar, F.A.C.III , Additional District Judge,Karimnagar, in C.F.No.4206 of 2006 in U/R I.A/ No. of 2007 inL.G.O.P.NO.240 OF 1989 relating to its order dated 19-6-2007 aNDquash the above order of respondent 1 by issuing an appropriate writorder or direction specially one in the nature of certiorari for beingarbitrary and violative of Article 14 and 300-A of the Constitution andbeing opposed to the principles of natural justice, and pass further orderor orders as and just necessary in the circumstances of the case.

Counsel for the Petitioner:MR.SRIRAM KRISHNA MURTHY

Counsel for the Respondent No.: .

The Court made the following:

Form-NIC-OGS/WP{SPJS}

THE HON'BLE SRI JUSTICE V.ESWARAIAH

&

THE HON’BLE SRI JUSTICE K.C.BHANU

WRIT PETITION No.15631 of 2007

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

The petitioner is the appellant in LGOP.240/1989 on the file of theIII Additional District Judge, Karimnagar. The said LGOP was filedagainst the respondents herein, alleging that the petitioner is havingright, title and ownership over the application schedule property and therespondents have grabbed some portion of the application scheduleproperty. Issues were also framed. At that stage, an application in CF No.4206/2006 in U/R.I.A.No……./2007 in LGOP.240/1989 was filedfor the appointment of the panel of Commissioners comprising oneknowing masonry work and another having experience in

Archaeological field, for the purpose of excavation of the foundationwalls of petitioner library and for analysis of physical remains in theinterests of justice. It is contended that the respondents 4 to 8 in the saidapplication as land grabbers have constructed their boundary wallsbeyond those of the already existing walls of petitioner library andfoundations of those walls are still traceable a little below the groundlevel. On appointment of panel of Commissioners, comprising oneknowing masonry work and another having field experience inArchaeological Survey of India, the foundation of petitioner library wallscan be localized by way of carrying out excavation of the existingfoundation walls of petitioner library. The said application has beendismissed by the Court below, holding that the appointment ofCommissioners is for the purpose of collection of the evidence toestablish the case of the petitioner, for which purpose the AdvocateCommissioners cannot be appointed in order to prove the case of anyparty.

Aggrieved by the same, this writ petition has been filed,contending that the Court below, without properly ascertaining thenature and extent of the land grabbed by the respondents, which woulddeprive the right of the petitioners, dismissed the said application. It isfurther stated that the appointment of the Advocate Commissionerscannot be said that it amounts to collection of the evidence, but it wasfiled only with a view to conduct local inspection by the panel of theAdvocate Commissioners and to file a report.

The tenor of the application filed by the petitioners before theCourt below clearly goes to show that the petitioner wanted the panel ofAdvocate Commissioners to be appointed to dig the foundation wallsand gather the evidence and file a report. It is for the petitioner toestablish his own case with regard to nature of grabbing of the land ofthe petitioner and he has to establish its case independently, but cannot take the assistance of the Advocate Commissioners in gatheringevidence. The Advocate Commissioners can be appointed only for thepurpose of making local inspection and to note down the physicalfeatures existing at the location. It is for the petitioner to independentlylead the evidence and establish his own case. Therefore, we do not seeany infirmities legal or otherwise to interfere with the impugned order.

The Writ Petition is, accordingly, dismissed. However, if anylocal investigation is required for the purpose of noting down thephysical features, it is left open for the petitioner to file a fresh applicationunder Or.26 Rule 9 CPC before the Court below for appointment of anAdvocate Commissioner. No order as to costs.

__________________

V.ESWARAIAH,J

Dated: 24.12.2008Dsr

______________________

K.C.BHANU,J

Note:Issue copy in three days B/o Dsr

..... REGISTRAR

// TRUE COPY //

To

SECTION OFFICER

1 Court of Special Tribunal for Land Grabbing irst cases-cum-District Judge at Karimnagar District Judge.

2. 2CCs to

3. 2CD copies