Telangana High Court
Shree Manjunatha Constructions vs The State Of Telangana on 18 September, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.23052 OF 2024
ORDER:
Heard Mr. N. Sreedhar Reddy, learned counsel for the petitioner and Mr. L. Ravinder, learned Assistant Government Pleader for Revenue appearing on behalf of the respondents.
2. This writ petition is filed challenging the order dated 09.08.2024 passed by respondent No.2 vide proceedings No.D/1422/2024.
3. FACTS:
i) Mohammed Abdul Mannan Khan, Mr. Mohammed Farrukh Azam Khan and Dr. Mohammed Abdul Rahman Khan, sons of Mr. M.A. Sami Khan, are the absolute owners and possessors of the land admeasuring Ac.1.00 guntas out of Acs.2.00 guntas in Survey No.41/7, situated at Khanamet Village, Seri Lingampally Mandal, Rangareddy District having purchased the same under a registered sale deed bearing document No.144 of 1995, dated 04.01.1995 from Mr. D. Ramesh and Mr. T. Sai Prakash, represented by their GPP Holders, Mr. K. Chenna Kesava Rao and Mr. G. Krishna vide registered GPA bearing document No.1507 of 1994.2
KL,J W.P. No.23052 of 2024
ii) Originally, Mr. D. Ramesh and Mr. T. Sai Prakash, the Vendors of Mr. Mohammed Abdul Mannan Khan and 2 others, had fled a suit vide O.S. No.82 of 1984 against one Mr. W. Gandaiah, for insertion of their names in the Record of Rights in respect of the land admeasuring Acs.2.00 guntas in Survey No.41/7 of Khanamet Village. Vide judgment and decree, dated 09.04.1984, learned Subordinate Judge, Ranga Reddy District, decreed the said suit. Thus, the Vendors of Mr. Mohammed Abdul Mannan Khan and 2 others became the absolute owners of the land admeasuring Acs.2.00 guntas in Survey No.41/7. Out of the said Acs.2.00 guntas, Mr. Mohammed Abdul Mannan Khan and 2 others purchased an extent of Ac.1.00 guntas under the aforesaid sale deed which is hereinafter recalled as 'subject land'. Thus, they are the absolute owners and possessors of the subject land.
iii) While so, the said Mr. Mohammed Abdul Mannan Khan and 2 others have entered into four different Development Agreements with i) M/s. Shree Manjunath Constructions; ii) Mr. M. Suresh Babu and iii) Mr. Goturi Amarnath Reddy, for developing the land by executing registered Development Agreement-cum-General Power of Attorneys (DAGPA) registered at the office of the Joint Sub-Registrar, Ranga Reddy, the details of which are as under:
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KL,J W.P. No.23052 of 2024 S.No. DGPA No. Date House No. Built up Area PTI No. Extent
01. 17609/22 25.08.22 2-41/41/7/2 100 sq.feet 1219992191 500 sq. yds.
02. 17610/22 25.08.22 2-41/41/7/4 100 sq.feet 1219992193 1180 sq.yds.
03. 17611/22 25.08.22 2-41/41/7/3 100 sq. feet 1219992192 1180 sq.yds.
04. 17612/22 25.08.22 2-41/41/7/1 100 sq.feet 1219992190 1100 sq.yds.
iv) Thereafter, Mr. Mohammed Abdul Mannan Khan and 2 others have also obtained building permit orders for construction of Stilt + 5 Upper Floors, the details of which are shown in the below tabular form:
S.No Permit No. Date House No. PTI No. Extent No. of Floors
01. 5801/GHMC/ 03.06.23 2-41/41/7/2 1219992191 500 sq. yds. 1 Stilt + 5 SLP/2023-BP Upper Floors
02. 1702/ -do- 01.06.23 2-41/41/7/4 1219992193 1180 sq.yds. -do-
03. 5802/ -do- 01.06.23 2-41/41/7/3 1219992192 1180 sq.yds. -do-
04. -- -- 2-41/41/7/1 1219992190 1100 sq.yds. --
4. CASE OF THE PETITIOENR:
i) According to the petitioner, it started construction pursuant to the aforesaid building permit orders. While the work was in progress, respondent No.3 came to the site and directed the petitioner firm to forthwith stop the construction work on the ground that the subject property is government land and that he has instructions from the District Collector to stop the construction. Therefore, the petitioner has filed writ petitions vide W.P. Nos.15112, 15097 and 15297 of 2023, questioning the said illegal action of respondent No.3 in directing the petitioner to stop the construction work. This Court granted interim orders.
Thereafter, respondent No.3 has issued a notice dated 28.03.2004 under Section - 7 of the Telangana Land Encroachment Act, 1905 (for short 4 KL,J W.P. No.23052 of 2024 'Act, 1905'), alleging that the land in question is a government land, the petitioner is in illegal occupation of the same and directed it to forthwith file its explanation. Vide letter dated 04.04.2024, the petitioner sought three (03) weeks time for submitting explanation effectively to the said notice dated 28.03.2024. On 07.05.2024, the petitioner approached respondent No.3 along with explanation. But, due to election to Lok Sabha, respondent No.3 was not available and his office informed the petitioner that respondentNo.3 is busy on Lok Sabha Elections and directed the petitioner to approach the office only after 04.06.2024.
ii) To the utter shock and surprise of the petitioner, respondent No.3 has issued order dated 27.05.2024 under Section - 6 of the Act, 1905 along with consequential eviction notice dated 27.05.2024 which was received by the petitioner on 29.05.2024 directing the petitioner and its principals to evict from the subject property.
iii) Feeling aggrieved by the said order, the petitioner preferred an appeal vide Appeal No.D/1422/2024 under Section - 10 of the Act, 1905 before respondent No.2 along with an Interlocutory Application seeking stay of further proceedings pursuant to the order dated 27.05.2024 of respondent No.3. The said appeal was filed on 01.06.2024 and it was numbered and taken on file on 03.06.2024.
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KL,J W.P. No.23052 of 2024
iv) Thereafter, respondent No.2 issued a notice dated 10.06.2024 to the petitioner to appear on 18.06.2024 at 11.00 A.M. for hearing along with documentary evidence in respect of its claim. According to the petitioner, it has received the said notice and appeared on 18.06.2024, on which date, respondent No.2 sought remarks from respondent No.3. No date was given. The petitioner was informed that the date would be given on receipt of report from respondent No.3. The petitioner was waiting for notice from respondent No.2. In the meanwhile, the petitioner received the impugned order dated 09.08.2024 dismissing the appeal filed by the petitioner before respondent No.2. Therefore, according to the petitioner, the impugned order is in violation of principles of natural justice and also the procedure laid down under the Act, 1905.
5. CONTENTIONS ON BEHALF OF THE PETITIONER:
i) Mr. N. Sreedhar Reddy, learned counsel for the petitioner, would contend that the petitioner has raised a specific ground in the appeal that its Principals are in long standing possession of the subject property and, therefore, initiation of the proceedings under the Act, 1905 seeking eviction of the petitioner and its Principals summarily is impermissible.6
KL,J W.P. No.23052 of 2024
ii) In support of his contention, learned counsel also placed reliance on the decision rendered by the Hon'ble Supreme Court in Government of Andhra Pradesh v. Thummala Krishna Rao 1.
iii) He would further contend that there is serious dispute with regard to the title of the subject property. Therefore, initiation of proceedings/action against the petitioner under the Act, 1905 is impermissible. The Authorities under the Act, 1905 cannot decide title of the subject property, and it is for the Civil Court to decide the same. Despite raising the said contentions specifically in the appeal, respondent No.2 did not consider the same. Therefore, the impugned order is in violation of the principles of natural justice and the procedure laid down under the Act, 1905 and is not a reasoned order. Therefore, he sought to set aside the same.
6. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
Whereas, learned Assistant Government Pleader for Revenue has produced written instructions of respondent No.3, wherein it is stated that the both the orders dated 27.05.2024 and 09.08.2024 passed by respondent Nos.3 and 2 respectively, are on consideration of entire record and affording an opportunity to the petitioner herein. Notice was 1 . (1982) 2 SCC 134 7 KL,J W.P. No.23052 of 2024 served on the petitioner by respondent No.2 fixing the date as 18.06.2024. The orders dated 09.08.2024 were passed by respondent No.2 by following the procedure laid down under law. Therefore, there is no error in it.
7. ANALYSIS AND FINDING OF THE COURT:
i) Since there is no answer with regard to the contention raised by learned counsel for the petitioner that respondent No.2 sought for report from respondent No.3 in the inquiry held on 18.06.2024 and informed the petitioner that they will inform the next date of hearing on receipt of report from respondentNo.3, this Court vide order dated 05.09.2024 directed learned Assistant Government Pleader for Revenue to produce the original record in respect of the impugned order from respondent No.2. He has produced the report from respondent No.2.
ii) Perusal of record would reveal that the petitioner filed the appeal on 03.06.2024. The same was put up before respondent No.2 on 10.06.2024, who issued notice dated 10.06.2024 fixing enquiry on 18.06.2024. In the original file of respondent No.2, the following proceedings are mentioned:
"Ref:- 1) The DC & Tah., S-pally Lr.No.B/935/2024, dt:15/7/2024 xxx Submitted:-8
KL,J W.P. No.23052 of 2024 Kindly peruse the ref., cited wherein the DC & Tah., S-pally (M) have forwarded the original No.B/225/2024.
If agreed the case may be RFO.,
Sd/ RDO Sd/ 9/8/2024.
07/8
Ref:- T/o prodgs. even dated 09/8/2024
xxx
Submitted:-
As per the instructions draft letter to DC & Tah S-pally is prepared & placed below.
Sd/ DAO Sd/- 14/8 RDO 14/8/24"
iii) Thus, respondent No.2 called for report from respondent No.3, who in turn submitted his report on 15.07.2024. There is no mention about the dates of hearing of respondent No.2 in respect of the said appeal either on 15.07.2024 or 09.08.2024. Note file does not reflect anything. However, respondent No.2 received the report from respondent No.3 on 15.07.2024. On receipt of the said report, respondent No.2 has to give a date requesting the petitioner to appear on such date. The said note file would also reveal that on 18.06.2024, the petitioner was present and that enquiry was adjourned. In the impugned order, there is reference with regard to the report dated 15.07.2024 of respondent No.3. In the impugned order dated 09.08.2024, there is no reference with regard to the service of notice dated 10.06.2024 on the 9 KL,J W.P. No.23052 of 2024 petitioner and its presence on 18.06.2024 and that on 09.08.2024, the petitioner was present. There is no reference to the said proceedings.
iv) It is relevant to note that Section - 10 of the Act, 1905 deals with appeals against the order passed by respondent No.3 under Section -
6 of the Act, 1905. Therefore, respondent No.2 while dealing with the appeal being a quasi-judicial authority has to conduct proceedings by following the procedure laid down under the Act, 1905 and also the principles of natural justice. In the present case, respondent No.2 did not conduct the proceedings by following the principles of natural justice. Therefore, on the said ground alone, the impugned order is liable to be set aside.
v) Perusal of appeal filed by the petitioner would reveal that the petitioner has specifically contended that its Principals are in long standing possession of the subject property. They have also placed reliance on the principle laid down by the Apex Court in Thummala Krishna Rao1.
vi) Perusal of record would reveal that originally Mr. W. Gandiah was the absolute owner and possessor of the land admeasuring Acs.2.00 guntas in Survey No.41/7 of Khanamet Village. Mr. D. Ramesh and Mr.T. Sai Prakash had filed the aforesaid suit O.S.No.82 of 1984 against 10 KL,J W.P. No.23052 of 2024 the said Mr. W. Gandaiah for insertion of their names in the Record of Rights. The said suit was decreed on 09.04.1984. On the strength of the said decree, Mr. D. Ramesh and Mr. T. Sai Prakash are claiming the right over the said property. They have executed a GPA in favour of Mr. G. Krishna and Mr. K.Chenna Kesava Rao vide registered GPA bearing document No.1507 of 1994, who in turn executed the aforesaid registered sale deed bearing document No.144 of 1995, dated 04.01.1995 in favour of Mr. Mohammed Abdul Mannan Khan and 2 others for sale an extent of Ac.1.00 guntas in Survey No.41/7 of Khanamet Village. The said Mr. Mohammed Abdul Mannan Khan and 2 others have executed the aforesaid four (04) DAGPAs in favour of the petitioner herein and 2 others.
vii) The petitioner herein has specifically contended before respondent No.2 that its Principals are in long standing possession of the subject property. Though there is specific contention, respondent No.2 did not consider the said aspect in the impugned order.
viii) It is relevant to note that Section - 7 of the Act, 1905 deals with 'prior notice to person in occupation', and it says that before taking proceedings under Section - 5 or Section - 6, the Collector or Tahsildar, or Deputy Tahsildar, as the case may be, shall cause to be served on the 11 KL,J W.P. No.23052 of 2024 person reputed to be in unauthorized occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Section - 5 or Section - 6. Therefore, respondent No.3 has issued a notice dated 28.03.2024 and, thereafter, passed an order dated 27.05.2024. Challenging the said order, the petitioner preferred an appeal in terms of Section - 10 of the Act, 1905 before respondent No.2.
ix) It is the specific contention of the petitioner that on receipt of the said notice dated 28.03.2024 from respondent No.3 under Section - 7 of the Act, 1905, it has submitted a representation dated 04.04.2024 seeking three (03) weeks time. Therefore, on 07.05.2024, they went to the office of respondent No.3 along with its explanation, but they were informed that respondent No.3 was not available and he is busy with Lok Sabha Elections and they have requested the petitioner to come after elections. Therefore, the petitioner was waiting for notice form respondent No.3. In the meanwhile, respondent No.3 has passed an order dated 27.05.2024. Therefore, according to the petitioners, the order dated 27.05.2024 of respondent No.3 is contrary to the Notification issued by the Election Commission of India directing all the quasi- 12
KL,J W.P. No.23052 of 2024 judicial officers not to conduct any proceedings and pass orders during Election Code. The said aspect was not considered by respondent No.2 in the impugned order though there is specific contention raised by the petitioner.
x) In Thummala Krishna Rao1, the Apex Court considered that where there is bona fide dispute of title between the Government and occupant of the land, the same must be adjudicated upon by the Ordinary Courts of law and the summary procedure is ill-suited.
xi) Relying on the said principle, in B.N. Manga Devi v. State of Andhra Pradesh2, the High Court of Andhra Pradesh at Hyderabad held that under Sections - 6 and 7 of the Act, 1905, the following conditions and steps of procedure have to be fulfilled and followed before a person could be legally evicted from the occupation of Government land.
(a) The land must be shown to be Government property in which Government have a subsisting right on the date of the proposed eviction;
(b) a notice should issue under Section 7 and should be served on the person concerned to show cause before a date to be fixed why he should not be proceeded against under Section 6 of the Act; 2 . 2011 SCC OnLine AP 442 13 KL,J W.P. No.23052 of 2024
(c) on service of such notice and if sufficient cause is not shown serving a notice requiring him within such time as the Collector may deem reasonable to vacate the land;
(d) if such notice is not obeyed directing removal of the person from the land; and
(e) if such person in occupation resists or obstructs, a summary enquiry by the Collector shall be held and only after the Collector is satisfied that the resistance or obstruction is without any just cause, he could issue a warrant for his arrest and on his appearance commit him to close custody.
xii) In the said case, the petitioners therein claimed possession over the land for nearly 30 years before initiating proceedings under the Act, 1905. Therefore, it was held leaving it open to the State to initiate appropriate legal proceedings for having its title declared and possession restored and until that is done, the petitioners therein cannot be evicted from the lands in question pursuant to the summary procedure followed under the Act. The said principle was also reiterated in Telangana NGO's Co-operative House Building Society Ltd., Hyderabad v. State of Andhra Pradesh3.
3 . 2012 SCC OnLine AP 538 14 KL,J W.P. No.23052 of 2024
xiii) In the light of the aforesaid legal principles, coming to the case on hand, the impugned order of respondent No.2 is liable to be set aside on the following two (02) grounds:
(a) Though notice dated 10.06.2024 was served on the petitioner fixing date of enquiry on 18.06.2024, there is no reference in the note file with regard to the details of enquiry on 18.06.2024 i.e., presence of the petitioner, calling for report from respondent No.3. In the note file, there is reference to submission of report dated 15.07.2024 by respondent No.3. Therefore, the impugned order is without affording an opportunity to the petitioner by serving notice after 18.06.2024. Thus, the impugned order is in violation of principles of natural justice;
(b) The petitioner specifically contended about the order dated 27.05.2024 passed by respondent No.3 when Election Code is in operation.
(c) The petitioner claimed that its Principals are in long standing possession over the subject property. Therefore, they cannot be evicted by initiating summary procedure under the Act, 1905.
(d) There is no consideration of the said aspects by respondent No.2 in the impugned order.
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KL,J W.P. No.23052 of 2024
8. CONCLUSION:
i) Viewed from any angle, the impugned order dated 09.08.2024 passed by respondent No.2 in file No.D/1422/2024 is liable to be set aside and accordingly the same is set aside.
ii) The matter is remanded back to respondent No.2 with a direction to decide the appeal filed by the petitioner under Section - 10 of the Act, 1905 afresh and pass orders strictly in accordance with law and by putting the petitioner on notice and affording it an opportunity and also by considering the following aspects:
a) The aforesaid four (04) DAGPAs were executed in favour of the petitioner and 2 others by the land owners, Mr. Mohammed Abdul Mannan Khan & 2 others, and the petitioner and 2 others are only Developers-cum-General Power of Attorney Holders, but not the land owners. Therefore, respondent No.2 has to serve notices on the land owners;
b) Though there are there (03) General Power of Attorney Holders, notice under Section - 7 of the Act, 1905 was served only on the petitioner. The petitioner is claiming that its Principals are long standing possession over the subject 16 KL,J W.P. No.23052 of 2024 property. Therefore, summary proceedings cannot be initiated;
and
c) Respondent No.3 passed the impugned order dated 27.05.2024 when Election Code was in operation.
iii) Respondent No.2 shall consider the aid aspects and decide the appeal as expeditiously as possible, preferably within a period of two (02) months from the date of receipt of copy of this order.
iv) Till then, respondent Nos.2 and 3 are directed not to proceed against the petitioner pursuant to the order dated 27.05.2024 of respondent No.3.
9. With the aforesaid observations and directions, this writ petition is allowed. In the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 18th September, 2024 Note:
The Registry is directed to return the original bundle to learned Asst. Govt. Pleader for Revenue so as to enable him to hand over it to R-2.
(B/O.) Mgr