Andhra HC (Pre-Telangana)
T. Praveena And Anr. vs District Collector And Ors. on 9 October, 2002
Equivalent citations: 2002(6)ALT112
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT V. Eswaraiah, J.
1. The unsuccessful writ petitioners filed this writ appeal against the order dated 25-07-2002 in W.P. No. 9833 of 2002 of the learned Single Judge of this court.
2. The appellants-writ petitioners filed the writ petition to issue a Writ of Mandamus declaring the action of the 1st respondent-District Collector, Hyderabad, in not finally determining the boundary between the land of the 5th respondent-The Jubilee Hills Cooperative House Building Society Limited, Jubilee Hills, Hyderabad and the 2nd and 3rd respondents-Commandant, 1st Battalion, Andhra Pradesh Special Police, Yousufguda, Hyderabad and Inspector General of Police, Andhra Pradesh Special Police, Yousufguda, Hyderabad, respectively, situated in T.S. No. 3/Part, Block A and Ward 9, Shaikpet, Hyderabad; and not preventing the respondent Nos. 2 to 4 from encroaching the land of the 5th respondent allotted to the appellants-petitioners as illegal and arbitrary; and to direct the 1st respondent to finally demarcate the boundary between the lands of the 5th respondent and that of respondent Nos. 2 and 3.
3. It is stated by the appellants-petitioners that they are the members of the 5th respondent-society. 1st appellant was allotted plot No. 303-Q and the 2nd appellant was allotted the plot No. 303-O. The 5th respondent executed registered sale deeds in their favour on 27-06-1994 and 31-07-1996. The said plots were unapproachable because of land gradient and approach road shall have to be formed. The 5th respondent did not lay the road to enable the appellants to make constructions in their respective plots.
4. The State Government had allotted the land in an extent of Ac. 6-23 gts. in favour of the 2nd respondent vide G.O.Ms. No. 1989, Revenue dated 11-12-1965. The said land is abutting the land allotted to the 5th respondent. The said extent of land was not specifically delineated and demarcated. On the representation of the 5th respondent, the Minister for Revenue, Government of Andhra Pradesh, directed to localise the land allotted to the 2nd respondent and accordingly, the 1st respondent got the land localised through the Revenue Officials and demarcated the lands of the 2nd and 5th respondents vide letter dated 24-03-1994 in reference No. C3/8654/91 of the 1st respondent. Subsequently, the land in an extent of Ac.3-20 gts. was resumed out of the allotted land of Ac.6-23 gts. in favour of the 2nd respondent and allotted the same to the Vijaya Co-operative House Building Society Limited, which is not a party to the writ petition. It is alleged that on 25-05-2002, the 4th respondent, in the process of developing the land, at the instance of 2nd and 3rd respondents, encroached the land of the appellants-petitioners and also undertaking the developmental activities. Immediately, the appellants-petitioners informed the same to the 5th respondent and requested it to take necessary steps against the unauthorised activities of 2nd to 4th respondents; and that the 5th respondent addressed a letter dated 29-05-2002 requesting the 1st respondent to take necessary steps to prevent the unauthorised activities in the land belonging to the 5th respondent, which was allotted to the appellants-petitioners, by deputing the Revenue Officials. As it is alleged that the 1st respondent has not taken any steps pursuant to their letter dated 29-05-2002, they were constrained to file the writ petition seeking the aforesaid relief.
5. 2nd and 3rd respondents have filed counter stating that the Government allotted the land in an extent of Ac.26-34 gts. in favour of the 2nd respondent vide G.O.Ms. No. 1989 Revenue (P) Department dated 11-12-1965; and another land in an extent of Ac. 27-11 gts. of Shaikpet village was also allotted by the Government, by various orders, in favour of the 2nd respondent. The layout of the 5th respondent was approved by the Municipal Corporation of Hyderabad during the year 1991; and that as per the revised layout, the 1st appellant-petitioner was allotted Plot No. 303-Q and the 2nd appellant-petitioner was allotted Plot No. 303-O. As per the revised layout No. 310/59,180/TP/HO/86, dated 15-06-1991 of the Municipal Corporation of Hyderabad, the Plot No. 303-O, 303-P and 303-Q are behind plot Nos. 295, 294 and 293 respectively and the boundary of the 2nd respondent - 1st Battalion, APSP, starts after plot No. 303-Q. While the 2nd respondent is constructing the quarters for the Senior Police Officers, the appellants-petitioners approached the High Court under misconception that the Police Officers' quarters are being constructed on Plot No. 303-O and 303-Q. The construction was being undertaken in the area, which is demarcated and allotted in favour of the 2nd respondent and there is no encroachment upon the lands allotted to the appellants-petitioners as alleged by the appellants. It is further stated that the 4th respondent is constructing quarters for Senior Police Officers in the land belonging to the 2nd respondent and no land belonging to the appellants-petitioners is encroached upon by either the 2nd respondent or by the 4th respondent. The plots of the appellants-petitioners are behind plot Nos. 293,294 and 295 and the boundary of the lands belonging to the 2nd respondent starts after plot No. 303-Q on the eastern side. The land allotted to Vijaya Cooperative House Building Society Limited is a different piece of land and it was not the part and parcel of the land in an extent of Ac. 6-23 gts. allotted to the 2nd respondent. Even assuming without conceding that out of Ac.6-23 gts. of land belonging to the respondent Nos. 1 to 3, the land in an extent of Ac.3-20 gts. was resumed and allotted to Vijaya Co-operative House Building Society, the constructions are being taken up out of the remaining land of Ac.3-03 gts. The construction is in progress, which is far away from the lands of the appellants-petitioners. It is also stated that pursuant to the interim directions of the High Court, the 1st respondent deputed the Deputy Director, Survey and Land Records; and accordingly he has visited the plots of the appellants-petitioners and the constructions that are being made by the 4th respondent on behalf of the 2nd respondent, in the presence of Mandal Revenue Officer, Advocate-Commissioner and the parties and a report was submitted after physical verification of the approved layout of the 5th respondent. As per the said report submitted by the 1st respondent, the plots of the appellants having 120' x 250' dimensions each situated towards southern boundary of plot No. 303-N i.e., house of Chiranjeevi film actor. As per the said report, the land measuring 360' x 250' is still available and the Police Officers Quarters are not being constructed at the disputed land. It is also stated that the appellants-petitioners are entitled to the land in an extent of 120' and 250' each i.e., about 3333 Sq. yards each; and there is sufficient land still available, in which, no construction activities whatsoever is being undertaken.
6. 4th respondent also filed similar counter.
7. Learned single Judge, after perusing the relevant records and the counters filed by the respondents and the Advocate-Commissioner's Report with regard to the survey conducted by the Deputy Director, Survey and Land Records, observed that as per the layout plan, 1991, Plot Nos. 303-O, 303-P and 303-Q are abutting the northern boundaries of plot Nos. 295, 294 and 293; whereas on ground, the plot No. 303-N is existing on the northern boundaries of plot Nos. 294 and 295. As such, the layout plan is not tallying with the ground position and it is not plotted to scale. In view of the discrepancy between the layout plan and ground position, the Deputy Director, Survey and Land Records localised the plots abutting to the northern boundary of Road No. 25. It was noticed that on the western side of Plot No. 303, a road with a width of 50' is existing and it extends upto Plot No. 303-E and then road takes a turn and further extends towards East upto the disputed land i.e., Plot Nos. 303-O, P and Q. The said plots were identified on ground with reference to the measurements recorded on the layout plan taking into consideration of the northern boundaries of Plot Nos. 285 to 303 and accordingly sketch plan was prepared and submitted to the court. The report also reveals that the Advocate-Commissioner requested the Surveyor to survey and measure the plot Nos. 303-O, 303-P and 303-Q from the existing road on the northern side as shown in the Jubilee Hills Co-operative House Building Society Layout. As per the request of the Advocate-Commissioner, the disputed plots viz., 303-0,303-P and 303-Q are identified with reference to the measurements noted in the layout from the existing road on the northern side. When this exercise was done, it was noticed that the gap area got shifted from north to the middle of the two rows of plots i.e., 303-O, P and Q and Plot Nos. 288 to 293. But the situation is different from what is depicted in the layout plan. After surveying the entire area he concluded that there is an anomaly of more area being available on ground than shown in the layout plan and the society has occupied more area than the area noted in the sketch. Construction now made by the 4th respondent is in the gap area on the northern side, which is outside the disputed plot Nos. 303-O, P and Q and by making such construction, the areas of the above plots in no way reduced. The appellants-petitioners also filed their objections to the Advocate-Commissioner's report and after considering the contentions of the learned counsel appearing for the appellants-writ petitioners and the learned Additional Advocate General appearing on behalf of the respondents, learned Single Judge held that filing of regular suit is the appropriate remedy for settlement of disputes relating to the property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available, except where violation of some statutory duty on the part of the statutory authority is alleged. The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes for which remedies, under general law in civil, are available. It is not intended to replace the ordinary remedies by way of suit or application available for aggrieved party in the event of any encroachment as alleged. The appellants-petitioners themselves admitted that there is no approachable road to their lands and they have not disputed the layout prepared in the year 1991, where the petitioners'-appellants' plots were shown abutting to Plot Nos. 295, 294 and 293 and their plots are measured with the northern boundary of Road No. 25. As per the report of the Deputy Director, Survey and Land Records, the area of plots of the petitioners'-appellants' is not diminished or reduced and there is some land available in between the petitioners'-appellants' land and the land belonging to the 2nd and 3rd respondents. If there is any dispute, it is always open for the 5th respondent to lay a claim on the said land with regard to the boundaries of the 5th respondent and the respondent Nos. 2 and 3 before the civil court by leading evidence with necessary pleadings. Prima facie, the relevant records and the reports show that the 2nd and 3rd respondents are not making any constructions on the land belonging to the petitioners-appellants and the appellants-petitioners have in no way affected. If at all it affects, it is for the 5th respondent to come forward with necessary pleadings before the appropriate forum or can approach the authorities viz., the 1st respondent or before any authority, for demarcation of its land with that of 2nd and 3rd respondents, but it is not open for the petitioners-appellants to plead that 2nd to 4th respondents, without demarcation of the land belonging to the 5th respondent are encroaching into the land of the 5th respondent. The question whether there is any overlapping of land of 2nd and 3rd respondents to that of 5th respondent's land or any encroachment by the 2nd respondent cannot be decided in a summary manner under Article 226 of the Constitution of India. Learned single Judge, accordingly, dismissed the said writ petition.
8. We have elaborately heard the contentions of the learned counsel appearing for the petitioners-appellants and the respondents, at the stage of admission, and also perused the relevant records. We agree with the view of the learned single Judge that several disputed questions of fact relating to the title of the private individuals cannot be gone into under extraordinary jurisdiction of this court under Article 226 of the Constitution of India. It is stated by the learned Additional Advocate General that the appellants-petitioners have not filed any sale deeds showing the boundaries and as per the report, the land of the appellants-petitioners have not been encroached upon in any manner. This court cannot conduct a regular enquiry and receive evidence with regard to the disputed questions of fact. Learned single Judge, after considering the rival contentions has rightly refused to decide the disputed questions of fact. It is not stated how the lands of the appellants-petitioners have been encroached upon by the respondents. It is stated that even as per the Advocate-Commissioner's report, the plots of the petitioners-appellants have been localised and their property has not been affected in any manner and there is no encroachment whatsoever.
9. We do not see any merit in any of the contentions raised by the learned counsel appearing for the petitioners-appellants and the writ appeal is devoid of any merits and it is accordingly dismissed. No costs.