Poonamchand v. Greater Hyderabad Municipal Corporation

At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. This writ petition is filed for a mandamus to declare the action of the respondents in interfering with the petitioner’s rights in respect of property bearing Nos.15-5-581/1, 15-5-581/2 and 15-5-581/3 in Survey Nos.17 and 19 of Thotaguda Village, Nampally Mandal, Hyderabad District as illegal and arbitrary. The petitioner claims that his father and uncle purchased land admeasuring Ac.0.30 guntas in Survey No.17 and Ac.0.24 guntas in Survey No.19 from one Mali Muthemma, who claimed to be the pattadar and possessor of the said land, by way of an unregistered sale deed on payment of Rs.925/- as consideration. After the demise of the petitioner’s father in the year 1960 and his uncle in the year 1979, the petitioner along with his two brothers claim to be in possession of the property. When the petitioner approached the Mandal Revenue Officer, Musheerabad, he was informed that the property was recorded as Government land in the pahanies for the year 1982-83. That the petitioner approached the District Revenue Officer, Hyderabad for correction of entries and after a detailed enquiry, the District Revenue Officer has issued proceedings, dated

07.03.1987, directing correction of entries and restore title of Mali Muthemma and that thereafter, the Mandal Revenue Officer has effected mutation in favour of the petitioner along with his two brothers and passbooks were also issued in the name of the petitioner and his two brothers. In the appeal filed against the said order by one Smt. Laxmamma and another, the parties are relegated to civil Court, which order was confirmed in W.P.No.5603 of 1991 and that the petitioner filed O.S.No.1796 of 1997 in the Court of the learned IV Additional District Judge, City Civil Court, Hyderabad for permanent injunction against the said person and the said suit was decreed on

23.10.1997. The appeal filed against the said judgment and decree in A.S.No.14 of 1998 was dismissed on 24.09.2001 by the Court of the learned X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. The petitioner further averred the Joint Collector, Hyderabad District issued proceedings, dated 20.01.1995, declaring that the schedule property is an escheat land. W.P.No.34794 of 1998 filed questioning the said order was disposed of by this Court by order, dated 31.08.2005, by setting aside the proceedings of the Joint Collector and held that the invocation of the provisions of Andhra Pradesh Escheats and Bona Vacantia Act, 1974 is not permissible. When respondent Nos.1 and 2 sought to remove the sheds erected by the petitioner in the year 2006 for carrying on banana fruit business, the petitioner filed W.P.No.27182 of 2006, wherein an order of status q u o was initially granted.

Thereafter, when the matter was further heard, the learned Standing Counsel appearing for respondent Nos.1 to 3 represented that they are not contemplating to interfere with the petitioner’s possession, and accordingly, the writ petition was disposed of recording the said submission. The petitioner averred that the respondents visited the premises in the month of June, 2009 and tried to interfere with his possession on which he approached respondent Nos.1 and 2 and has shown the order of this Court, on which, they have stopped interference. The petitioner further averred that again on 10.03.2011, the respondents visited his premises and tried to interfere with his possession and respondent No.5 had personally come with two trucks with men and labour with an intention to carry out demolition. Therefore, he filed the present writ petition. On behalf of respondent Nos.3, 4 and 5, a counter affidavit is filed by respondent No.5, wherein it is inter alia stated that Survey Nos.17 and 19 of Thotaguda Village, Nampally Mandal, Hyderabad District are located in the Moosi river bed, that initially survey of Thotaguda Village was conducted in the year 1947 and Survey No.17 is classified as inam Mori to the extent of Acs.1.06 guntas and Survey No.19 as sarkari Mori to the extent of Acs.2.00.

Respondent No.5 also relied upon sethwar and pahanies to show that they are government lands. It is further stated that from the beginning, the subject land forming part of Survey Nos.17 and 19 has been recorded as Government land covered by water body and the proceedings of the District Revenue Officer, Hyderabad are not sustainable and without jurisdiction. While asserting that the petitioner has no valid document of title, described the earlier suits as collusive and that the petitioner has to seek declaration of title by approaching the civil Court as observed by this Court in the previous writ petition. Respondent No.5 relied upon Section 24 of the A.P.Land Revenue Act, 1317 Fasli to assert that the lakes, streams, ponds and rivers vest with the Government, and that the Government has taken up Moosi Revitalisation Scheme for development and its beautification and that as the land in question forms part of Moosi river bed, it is the statutory duty of the respondents to protect the same encroachments by illegal claims.

From the facts noted hereinabove, it is clear that while the petitioner asserts his title through one Mali Muthemma, who claimed to be the original pattadar of the land, and on the basis of the proceedings of the District Revenue Officer by which the names of the petitioner and his two brothers were entered and pattadar pass books were issued, the respondents assert that the land is vested with the Government as the same is classified as Government land in various revenue records. The fact, however, remains that except asserting that the land belongs to the Government, the respondents have not so far initiated any proceedings worth the name to claim the land and evict the petitioners therefrom. The fact that the petitioner is in possession of the land in question is admitted by the respondents. What this Court is unable to comprehend is that if the land forms part of Moosi river bed, how the respondents have remained silent spectators for decades without initiating appropriate proceedings for the eviction of the petitioner.

The respondents cannot take law into their hands by causing physical interference or resorting to highhanded action of preventing the petitioner from enjoying the property. The learned Government Pleader for Revenue submitted that when the petitioner sought to level the land, which forms part of the Moosi river bed, the subordinate officials of the revenue department have sought to prevent him from doing so. Even assuming that this allegation is correct, such a conduct on the part of the Government and functionaries cannot be countenanced. If the respondents feel that the petitioner is carrying on unlawful activity on the land, which is perceived as Government land, they are under obligation to set the legal process into motion by taking recourse to the extant provisions of the law. On the respondents’ own showing, they have failed to follow this procedure. Even assuming that the petitioner is in unlawful possession of the property, his possession cannot be interfered with unless due process of law is followed by the respondents.