Andhra Pradesh High Court - Amravati
State Of Andhra Pradesh vs Dhulipalla Veeraiah Choudary Memorial ... on 1 February, 2023
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU
WRIT APPEAL No.803 OF 2021
State of Andhra Pradesh, Rep., by its
Principal Secretary to Government,
Sports Department, A.P. Secretariat,
Velagapudi, Guntur District and 10 others.
.. Appellant
Versus
Dhulipalla Veeraiah Chourdary Memorial Stadium,
Ponnur Nidubrolu Society, Regn.No.357 of 2003,
Rep., by its Secretary, Sri P.Ravindranadh,
Ponnuru, Guntur District.
.. Respondents
Counsel for the appellant : Government Pleader for Sports
Counsel for the respondents : Mr. Ghanta Rama Rao
JUDGMENT
Date: 01.02.2023 (per D.V.S.S.Somayajulu, J) This writ appeal has been filed by the Sports Department, State of Andhra Pradesh questioning the order of the learned single Judge in W.P.No.23016 of 2020 dated 23.09.2021.
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2. The writ petition was filed by the petitioner-society for a Mandamus declaring the action of the respondents-State and questioning the impugned notice dated 23.11.2020 along with the action of the respondents in affixing notice to the gate of the stadium and high-handedly breaking open the existing locks and putting new locks on the stadium and denying entry to the members of the society and others.
3. In the writ petition, the society claims to be in possession and enjoyment of the Dhulipalla Veeraiah Choundary Memorial Stadium. It is stated that the land belonging to the Zilla Parishad School; the super structure was constructed by the society and it is in possession and enjoyment of the same. It is stated that the respondents high-handedly entered into the premises, broke open the existing locks and fixed their locks on the stadium and prevented the entry of the members of the society into the stadium. This action was questioned. The learned single Judge, in the course of his order held that the action of the respondents in breaking open the locks, affixing new locks and preventing the petitioner and others from entering into the Stadium is illegal. A direction was given to remove the locks and to allow the petitioner-society to function from the stadium till it is lawfully evicted from the premises. An option was given to the respondents to proceed 3 as per law to evict the petitioner-society. This order is assailed in the writ appeal.
4. Learned Government Pleader for Sports argued the matter at length. He points out that the petitioner-society is not claiming any title to the land in question and that the averments in the writ petition do not show that the entire stadium i.e. the super structure was constructed by the society alone or that the society is in possession and enjoyment of the property. He points out that the documents filed show that Public Health Department was entrusted with the construction of the stadium that funds were donated by Members of Parliament etc., and that the sports authority had also donated a sum of Rs.89 lakhs and the construction was supervised by the Government Officials alone. It is pointed out that the stadium was thus completed in all respects by Officers of the State representing the various departments, but in view of the failure of the Public Health Department to physically handover the stadium, the writ petitioner-society claims to have exclusive possession of the premises. Learned Government Pleader submits that no record is filed to show that the super structure was completed solely by the petitioner-society or that they were put in exclusive possession of the premises. He also argues that no permission was granted to take over the management and to control the entry of people or the usage of the facilities. He points out that in the 4 counter affidavits filed, the right of the petitioner-society was expressly denied and despite the same, he submits that learned single Judge came to a conclusion that the petitioner-society was in exclusive possession of the property. He points out that settled possession must be effective, undisturbed and to the knowledge of the owner. For this proposition, learned Government Pleader relies upon Poona Ram v. Moti Ram1. He also argues that since the petitioner is not claiming any right in the property and is only alleging that due process was not followed and the rules of natural justice are not followed, a writ is not maintainable and in particular, a Mandamus cannot be sought. He relies upon Mani Subrat Jain and others v. State of Haryana and others2. Therefore, learned Government Pleader argues that the single Judge committed an error in granting a Mandamus in favour of the petitioner-society. In the alternative, he submits that if at all the writ petitioner claims to be wrongfully and high-handedly evicted from the property, the remedy open to them is an appropriate suit and that a writ is not a proper remedy.
5. In reply to this, Sri Ghanta Rama Rao, learned senior counsel for the petitioner argues that it is a fact that the petitioner-society is not claiming any right or title to the stadium. He submits that the super 1 (2019) 11 SCC 309 2 (1977) 1 SCC 486 5 structure was constructed and completed by the petitioner-society and that they have been in exclusive possession of the same. He states that the stadium was developed for the purpose of meeting the sports infrastructure with contributions from the public, public representatives etc., and that the society was exercising control over the stadium. The access to the public etc., was being regulated and the facilities were also provided to the children of the school on a cost free basis. The other facilities like Gym, Shuttle Courts etc., were being allowed to be used on collection of nominal fee from the members of the society and the general public. He points out that the essential dispute in this case was about the procedure followed by the respondents and their action in high-handedly breaking open the locks that were existing, taking over the premises and putting new locks in place of the earlier locks. He also submits that access to the public and others is now stopped totally. It is this action of the respondents that is questioned. He, therefore, submits that the single Judge did not commit any mistake in passing the impugned order since as per the settled law, no person can be evicted forcefully from the property. He points out that the provisions of the A.P. Public Premises Act, 1968 etc., would apply and that the single Judge ultimately held that the procedure followed was not correct and left it open to the respondents to proceed as per law to evict the petitioner and to take possession. 6
6. This Court has heard the arguments at length. A perusal of the documents would show that it is admitted in the writ affidavit itself that the land on which the stadium is now constructed at Nidubrolu is acquired by the Zilla Parishad and was being used intermittently by the children of the Zilla Parishad school. Some of the old students of the school, philanthropic citizens formed the society which is registered on 27.06.2003. The name of the society is the Dhulipalla Veeraiah Choudary Memorial Stadium, Ponnur. Thereafter, the said society made a representation to the Guntur Zilla Parishad to allot a part of the site for construction of a stadium. The Chief Executive Officer of the Zilla Parishad, pursuant to resolution passed by the general body meeting, requested the Executive Engineer (Technical) to demarcate the boundaries. Thereafter, the land was identified and construction began with a foundation laying ceremony on 03.11.2003. The Public Health Department was accorded permission for construction of the sports stadium in the site and this is borne out by the letter date 16.06.2005 addressed by the Executive Engineer, Panchayat Raj, Tenali to the Executive Engineer, Public Health Division, Guntur. The plan submitted by the stadium committee was sent to the Ponnur Municipality for approval by a letter dated 08.11.2005. Director of Town and Country Planning approved the plan and the same was forwarded to the Executive Engineer, Public Health Division on 7 03.02.2006. Members of Parliament and other donated funds under the M.P. Local Area Development Scheme. The Sports Authority of Andhra Pradesh has also donated a sum of Rs.89 lakhs to complete the balance work of construction of indoor stadium. This estimate is signed by the Public Health Division Officers and also the District Sports Authorities. The abstract and the report of the works awarded are filed with the counter affidavit. These documents are of the year 2013. As per the counter affidavit, the works were completed in the year 2017.
7. A reading of the counter affidavit of the 1st respondent-State shows that they have very clearly pleaded that the petitioner is not claiming any right or title over the property. It is also asserted in the counter that the writ affidavit does not disclose when the stadium was completed and possession was actually taken over by the writ petitioner-society. It is also stated in para 13 of the counter affidavit that the society has no right over the stadium. The Government denies that there was pooling of funds by the petitioner-society and/or extension of financial support by the petitioner-society for construction of the stadium.
8. The counter of respondent No.2 also asserts that the stadium was constructed with the funds from the MPLADS and Assembly Constituency Development Grant and other sources. Rs.32 lakhs was so mobilized with the cooperation of the public representatives and the 8 general public. Further a sum of Rs.89 lakhs was sanctioned by the Sports Authority as per the estimates submitted by the Executing Agency. The stadium was completed with Government funds only in July, 2017. It is asserted that the petitioner-society without any orders or consent took over the Management. It is also asserted that the petitioner-society did not pool in any funds. It is categorically stated that the petitioner-society has not made any contribution or extended financial support for the construction of the stadium.
9. To the same effect is the counter filed by the 5th respondent. It is asserted that the funds have come from the MPLADS funds and other sources. The contribution of the Sports Authority of Rs.89 lakhs is also asserted. This respondent has also very categorically stated that the petitioner-society did not contribute any funds whatsoever.
10. This Court notices that the documents filed also show the contribution of Rs.89 lakhs from the Sports Authority. The abstracts and estimates prepared in 2013 are signed by the Officers of Public Health Division, Guntur and the Sports Authority, Guntur only. The contributions from 5 Hon'ble Members of Parliament and an MLA are also mentioned in the estimates. These contributions amounts to Rs.32 lakhs. These are the only sources of funds which are disclosed in the documents filed by either party. That the land belongs to the Zilla Parishad is also not in doubt. The letter of the Chief Executive Officer 9 of the Zilla Parishad in January, 2004 clearly shows that the land is allotted to Sports Development Agency for construction of a mini stadium. Permission was obtained by the Officers of the State and the Public Health Department was permitted to take up the construction. This is borne out by the Executive Engineers letter dated 16.06.2005. The approved plan sent by the Commissioner, Ponnur Municipality to the Executive Engineer Public Health Department only. Therefore, the available documents do not support the contention urged by the writ petitioners that they have constructed the entire stadium super structure with their own funds. Neither the audited accounts nor the annual returns of the petitioner-society are filed. This is all the more important in view of the express averment in the counter affidavit that the petitioner-society did not extend any funds for the sake of construction of the stadium.
11. The writ petitioner-society is not able to explain the total cost of construction of the stadium or the period of construction. As pointed out in the counter filed by respondent No.1, the date of taking over of possession is also not borne out by record. The manner of taking over the 'exclusive' possession is not clear from the record.
12. It is settled law that properties of the Government or the Government Instrumentalities cannot be handed over to or alienated to private parties without the sanction of law. Distribution of largesse like 10 allotment of land can only be by a fair and transparent process. (Ramana Dayaram Shetty v. International Airport Authority of India, 1979 (3) SCC 489 and Akhil Bhartiya Upbhokta Congress v. State of M.P., 2011 (5) SCC 29).
13. In the case on hand, this Court does not find any evidence to show that the petitioner-society has been given possession of the property in a manner known to law or that they have in fact constructed the stadium with their own funds. The available evidence does not justify this conclusion. The sources of funds which can be gleaned from the record are contributions by the public representatives which again are not their own personal fund, but is a fund allotted to them from the State and a sum of Rs.89 lakhs from the Sports Authority. Therefore, the contention of the writ petitioners that they are in exclusive possession of the property is not actually borne out by record. Settled possession as per the judgment of the Hon'ble Supreme Court in the case of Poona Ram (1 supra), should be: (a) effective (b) undisturbed and to the knowledge of the owner or without any attempt or concealment. It is also held as follows in para 15:
'15. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled 11 possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and
(iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.'
14. A reading of the pleadings would show that there is a gap in the period from 2017-2020. In this period, it appears that the petitioner- society has managed the stadium as pleaded. After noticing that the stadium was not handed over by the Public Health Department to the District Sports Authority, action was taken in November, 2020 to take over control of the stadium. This action of November, 2020 that is assailed in the writ petition. The fact however remains that the respondents acted high-handedly in the sense that they have entered into the premises with police aid and taken over possession of the 12 property by breaking open the existing locks and putting their locks. The panchanama was also drawn up on 28.11.2020. This is the action that is assailed.
15. The law on the subject is well settled, that even a trespasser cannot be evicted except by force of law. If a person is forcefully evicted, the remedy that is open to him is to file an appropriate suit. In the opinion of this Court, instead of doing so, the writ petitioner has approached this Court. The high-handed action if any of the respondents in forcefully trying to evict the petitioner could have been prevented by a writ Court, since the respondents are the State and the State Official are amenable to the writ jurisdiction, if the writ was filed before the alleged action. The fact remains that after the action was completed, the writ petition was filed. However, in the peculiar circumstances of this case, this Court has to deny relief to the writ petitioner. As mentioned earlier, the case of the petitioner is not supported by the available record. Their right to be in possession pursuant to their assertion that they have constructed the stadium with their funds etc., is not borne out by the record. The available record shows that some funds came from public representatives and some funds came from the Sports Authority. Construction was also entrusted to the Public Health Department alone. When and how the claimed exclusive possession was delivered is not clear. Therefore, in 13 these circumstances, the role of the petitioner-society either in the construction or in the Management is not clearly established from the available record. This Court cannot in these peculiar circumstances grant relief to the petitioner and permit them to 'exclusively' operate the stadium and to remain in possession till they are 'evicted' as per law.
16. This is an order that is pronounced in the circumstances of the case while making it clear that high-handed action to evict a person in settled possession is not proper. In the opinion of this Court, the single Judge did not examine the question whether the petitioner had a right to remain in control or in possession of the stadium in question or the source of funds etc. That land belongs to the Zilla Parishad-4th respondent is not considered. The petitioner-society could not prove that it had exclusively contributed for the construction of the stadium and that it had a legal right to regulate entry of people and members for the usage of the facilities. The facilities are 'public' facilities and as such this Court opines on the basis of the available record that it is the State and its instrumentalities that can control and use all facilities in the stadium. The public have a right to access/use the facilities. Therefore, this Court holds that the learned single Judge committed an error in allowing the writ petition and giving an option to the State to 'evict' the petitioner under due process. In the circumstances, the appropriate remedy for the petitioner-society was to approach a civil 14 Court. The opinions expressed are for the purpose of disposal of this writ appeal only and are not final findings on the facts. In case a suit is filed, it is clarified that all pleas; rights/defences are left open.
17. The writ petition is misconceived and the order of the single Judge is therefore set aside. The writ appeal is therefore allowed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.
PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU,J KLP