THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.49 of 2001 Dated: 21.06.2010 Between: N. Shobha Reddy. .. Petitioner. And The Mandal Revenue Officer, Shaikpet Mandal, Hyderabad, And others. .. Respondents. ORDER: Initially, this writ petition was filed against the Mandal Revenue Officer, Shaikpet Mandal, Hyderabad, alone, seeking the following substantive relief:- “… Hon’ble Court may be pleased to issue a writ, order or direction one in the nature of writ of Mandamus declaring the acts of the respondent as illegal, high- handed and arbitrary and consequently to direct the respondent not to demolish the structures of the petitioner over her property bearing Municipal No.8-2- 684/4/28 situated at Road No.12, Banjara Hills, Hyderabad and pass necessary orders in the circumstances of the case.” However, in view of the subsequent events that took place in the matter, the petitioner filed implead petition seeking impleadment of the Chief Engineer, Superintendent Engineer and the Executive Engineer of R & B Department as respondents 2 to 4, and also filed amendment petition seeking the following relief: “… Hon’ble Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in enclosing the property belonging to the petitioner bearing Municipal No.8-2-684/4/28 situated at Road No.12, Banjara Hills, Hyderabad by a compound wall and removing the gate on the western side, thereby preventing petitioner’s access to the said property, as arbitrary, illegal, highhanded, unjust, without jurisdiction, violative of the Fundamental and Constitutional Rights guaranteed to the petitioner under the Constitution of India, violative of principles of natural justice and consequently direct the respondents to erect the gate on the Western side of the property in question, as well as construct the compound wall on the Southern side and not to disturb the peaceful possession and enjoyment of the petitioner over the property in question and pass such other order or orders as are deemed fit and proper in the circumstances of the case and pass such other order or orders as are deemed fit and proper in the circumstances of the case.” According to the petitioner, she is the absolute owner and possessor of the property bearing Municipal No.8-2-684/4/28 situated at Road No.12, Banjara Hills, Hyderabad, admeasuring about 600 sq. yards, having purchased the same from one Ramachandraiah through a registered sale deed bearing document No.2310/84 dated 16.10.84. It is her case that prior to her purchase, her vendor got constructed the structures on the said property way back in the year 1967 and paid property tax in respect of it. The petitioner relies on a certificate dated 22.09.1984 issued by the office of the Deputy Commissioner, Circle-5, MCH, Hyderabad, certifying that the structures on the subject property stood in the name of her vendor. The petitioner contends that on the Eastern side of the subject property, which belongs to her, there exists the land of Birla Guest House, in which the Government of Andhra Pradesh has constructed buildings for Ministers and, while doing so, a compound wall has been raised abutting her property by separating the Government property and her property. While so, on 30.12.2000, the 1st respondent-Mandal Revenue Officer, Shaikpet Mandal, Hyderabad, along with other officials came to the said property and directed the watchman to demolish the structures existing on the subject property within 24 hours and threatened that on his failure to do so, the revenue officials will demolish the same. The grievance of the petitioner is that the 1st respondent has no authority to demolish her structures and even if he has any interest in the said property, he has to follow the due process of law. Hence, the petitioner filed this writ petition seeking appropriate directions. On 25.04.2001, while admitting the writ petition, this Court ordered status quo as on that day to be maintained. Thereafter, complaining that despite the status quo orders obtained on 25.04.2001, the 1st respondent along with his staff constructed compound wall enclosing the property belonging to her, the petitioner filed contempt case No.1486 of 2003. The 1st respondent filed a counter affidavit in the contempt case stating that the land in question claimed by the petitioner is the Government land and it is part of the larger extent of land comprising 1,95,714 sq. meters in T.S.No.3/1/1, which was transferred and handed over to the R & B Department long back for the purpose of construction of Ministers’ Quarters, and that, on verification, it was found that a wall was constructed by R & B Department in the Government land in T.S.No.3/1/1 and no structures over the disputed land were touched. Basing on these averments made in the counter affidavit, particularly, with regard to the contention that the possession of the petitioner was not interfered with, this Court closed the contempt case, by order dated 06.01.2004, observing that the access of the petitioner to the site in question shall not be interfered with till the disposal of the writ petition. It is the case of the petitioner that after closure of the contempt case, some persons posing themselves to be the Government Contractors removed the gate fixed on the Western side of the compound wall of her property and built a wall completely preventing her from entering into her property and, therefore, she addressed a letter dated 20.07.2007 to the 4th respondent-Executive Engineer, CBD, A.C.Guards, Hyderabad, requesting to build a compound wall on the southern side and dismantle the compound wall on the western side of her property enabling her to put a gate. In response of that letter, the petitioner received a letter dated 15.10.2007 from the 4th respondent stating that the property in question is listed in T.S.No.3/1/1, Block-C in Sy.No.403 and it is situated outside the compound wall of Government Ministers’ Quarters Complex in the North West corner. It is also stated in the said letter that the proposed layout of the said land was prepared by M.C. Consultants, duly conducting a detailed survey on the site, and the land claimed by the petitioner is purely a Government land and not a private land. While so, the 1st respondent filed a vacate petition seeking to vacate the interim order dated 25.04.2001 and, in support of the vacate petition, a counter affidavit is filed, wherein it is stated as under: “…It is also submitted that since the entire land in Sy.No.403 of Shaikpet village is a Government land and part of it was allotted to PWD Department for construction of Ministers Quarters and it is inside compound wall constructed by PWD Department. It is not out of place to submit here that the petitioner obtained status quo order in W.P.M.P.No.55/01 in this WP and subsequently filed CC.No.1486/03 (for Non Compliance of orders in the above WPMP) which was properly explained to the Hon’be Court and thereby the above said CC.No.1486/03 was closed on 06.01.2004. It is respectfully submitted that the petitioner herself admitted at para (6) of the petitioner’s affidavit that there is no structure or residence of the petitioner and only a watchman room is there this is only to show that she is in possession and enjoyment while the fact is that it is vacant land. It is further submitted that it is bounden duty of the respondent and their subordinates to visit, enter into and protect the Government land from unauthorized encroachments. An attempt was made by the petitioner to occupy the Government land which was resisted.” Controverting the averments made in the counter affidavit, the petitioner filed reply affidavit stating that the property in question is located in Sy.No.129/36, but not in T.S.No.3/1/1 as stated in the counter affidavit. It is also stated that the allegation that the property in question is located inside the compound wall of the Ministers Quarters is contrary to the averments made in the counter filed in the contempt case as well as the letter dated 15.10.2007 addressed by the 4th respondent. It is further stated that in view of the clear admission by the 1st respondent in his counter affidavit that there is a watchman room existing in the property in question, it cannot be said that the petitioner is not in possession and enjoyment of the property in question. Having observed that the balance of convenience does not lie in permitting the petitioner to change the physical features of the property, as the dispute relating to the rights of the parties over the subject land is yet to be adjudicated in the writ petition, this Court by order dated 14.08.2008 disposed of the vacate petition clarifying the interim order dated 25.04.2001 to the effect that neither of the parties shall change the physical features of the property pending the writ petition. In view of the letter dated 15.10.2007 addressed by the Executive Engineer (R & B), Central Buildings Division, A.C.Guards, Hyderabad, the petitioner filed W.P.M.P.No.23162 of 2008, seeking to implead the Chief Engineer (Buildings), Superintending Engineer and the Executive Engineer of R & B Department, as respondents 2 and 3 and the said implead petition was ordered on 14.08.2008. The petitioner also filed W.P.M.P.No.23163 of 2008, seeking to amend the prayer in the writ petition, and it was also ordered on 15.09.2008. The 4th respondent-Executive Engineer filed his counter affidavit stating that the compound wall has been constructed as per the sketch given by the Mandal Revenue Officer, and at paragraph 5 and 6, it is specifically stated as under: “It is submitted that the allegations of writ petitioner that the first respondent herein has given a statement before the Hon’ble Court in C.C.No.1486/2003, that the R & B department has constructed compound wall in Government Land in TS.No.1/1 is correct, but it is false to state that wall has been constructed on the petitioner’s property as per the sketch and not beyond the said sketch, hence the question of interfering the property of the petitioner doesn’t arise, this respondent is also not aware in regard to the availability of the petitioner property in TS.No.3/1/1, hence the allegations of the Writ Petition is unsustainable. It is submitted that, this Department is not aware of the issues pertaining to petitioner’s allegations & Court cases. In this regard, it is to submit that the R & B Department has taken over the land to an extent of 19.03 acres from the M.R.O., Shaikpet village, Golconda Mandal on 28.8.1986. The said land is listed in T.S.No.3/1/1, Block-S, Sy.No.403. A boundary wall was also constructed to safeguard the Govt. land. In this regard, it is to submit that the profile of the Govt. land in the north west corner is relatively low compared to the land Levels in other directions, as such one retaining wall was constructed from technical aspects. In addition to the retaining wall, a boundary wall was also constructed to safeguard the Government land. In the northwest corner, the land between the retaining wall & the boundary wall also belongs to the Government. The property bearing MCH No.8-2-684/4/28 may be present outside the boundary wall constructed by the R & B Department & it is not inside the boundary wall which was clarified to the petitioner vide letter dt.15.10.2007 but the petitioner has misinterpreted assuming the retaining wall in the North west corner as the boundary wall of minister quarters. At this juncture, it is to high light that the retaining wall is inside relative to the boundary wall of Minister quarter’s…” Denying the allegations made in the counter affidavit filed by the 4th respondent, the petitioner filed her reply affidavit, wherein it is specifically stated that the contention of the 4th respondent to the effect that since the government land in the north west corner is relatively low compared to the land levels in other directions, one retaining wall was constructed from technical aspects and in addition to the retaining wall, a boundary wall was also constructed to safeguard the Government land, is contrary to what is stated by the R & B Department in its letter dated 15.10.2007. In view of the rival contentions of both the parties, this Court, having found it necessary to verify the land physically as to ground position of the land as per the pleadings, by order 13.07.2009 appointed an advocate commissioner to inspect the subject land and find out whether exactly the retaining wall is located and also the compound wall of Ministers Quarters and find out whether there are any structures available on the land in question, and its measurements. In pursuance thereof, the Advocate Commissioner inspected the subject land and submitted a report, the relevant portion of which reads as under:- “...The premises bearing Municipal No.8-2-684/4/28 is situated on the East of the road leading to Uday Nagar slums which branches of from road No.12, Banjara Hills. The premises has no access from the road directly. I am herewith filing a rough plan. The measurement of the premises is as follows. West (from points A to B) - 85 feet North (from points A to I) - 56 feet (length of compund wall) and without compound wall about 10 feet (exact measurement could not be taken) East (from points D to E ) 102’.23” and from Points E to G 8’ South ( from points B to C ) – 20’6”, from the point C to D 42.6” The height of the Western Wall is 11.5 feet ( on the road site ). On the North there is a compound wall to a length of 56’ and thereafter the house wall of one of the houses in the slums is serving as a compound wall. On the East there is a huge compound wall to a height of about 25’. On the East of the premises, quarter No.8 of the minister’s quarters is situated at an height of about 20’. On the Eastern Boundary wall of the premises, which is also the western boundary wall of the minister’s quarters, there is a solar fencing on the wall which extends from South to North to a length of 102.3 feet and then there is a depression of 2.6” towards East and to a further length of 8’ the boundary wall is constructed. And at that point the wall takes a turn towards East as shown in the rough plan. But there exists a basement at ground level connecting the compound wall straightly at the points G and H as shown in the rough plan. The fact that there is no solar fencing on the western and northern compound walls, and the existence of the solar fencing on the Eastern Compound wall of the premises (i.e. the Western Compound of Quarter No.8 indicates that the premises is not part of the ministers quarters. So far as the southern boundary is concerned from Points B to C there is a small CRS wall to a height of 2-9” to a length of 20 ½ feet and there after there is a pacca boundary wall constructed with granite stones to a height of about 25’ to a length of 42.6” from point C to D. The premises which appears to be rectangular in shape is full of wild grown up trees. There is a shed inside the premises without a roof. The shed appears to have been constructed on a existing granite stone at ground level. The gap between the Western Boundary Wall of the premises and the shed is 3.6”. The height of the walls of the shed on all sides is about 7’. There is an opening of 3’ for the door on the North-west corner of shed. But no door nor door frame is in existence. The measurements of the shed is given hereunder. East - 10’6” West – 10’6” North – 10’11” South – 10’11” On the West North and Southern Walls of the shed the following is written with red paint. “ N.SHOBHA REDDY, M.D. No.8-2-684/4/28, T.No.27633125” The petitioner’s counsel requested me to note the existence of broken asbestos sheets lying on the ground at Northern Corner of the premises stating that they are the remnants of the Ac Sheets used for roofing the shed. The officials who are present described the western boundary wall of the disputed premises as the retaining wall, whereas the General Power of Attorney of the petitioner described the said wall as the compound wall. Whatever name is given, the Western Boundary Wall is in alignment with the existing compound wall of other premises on its South. We entered premises from the ministers quarters by dissenting the steps situated in the open land on the south of the disputed property. We entered the premises by crossing the CRS wall of height of which is 2.9. between the points B and C.” The 4th respondent-Executive Engineer (CBD), Hyderabad, filed his objections to the Advocate Commissioner’s report, wherein it is stated as under: “..The officials present at the time of execution of the commission of warrant Mohammed Jazeeruddin Ahmad, Executive Engineer (R & B), Hyderabad, Surender Reddy, Inspector of Survey office of Deputy Director, Survey and lands records, Hyderabad, Roop Karan, Asst. Engineer ( R & B), (CB) Division, Hyderabad, described the western wall abutting the Ministers quarters as a retaining wall constructed at the earliest point of time to protect the falling of the land as the land is above 20 ft down gradient and temporarily at that point of time for the protection and security of the ministers quarters along with said retaining wall solar fencing was done as indicated in the plan submitted by the advocate commissioner. But the advocate commissioner finding given in the report stating that there is no solar fencing on the western and northern compound walls on the existence of solar fencing on the eastern compound wall of the premises indicates that the premises is not part of the ministers quarters is incorrect and not based on any legal evidence and outside the jurisdiction of the advocate commissioner’s warrant and same cannot be taken into consideration to decide the lis pending before this Hon’ble Court. In fact the said premises are part and parcel of the land Ac.19.03 gts. situated in Sy.No.403 (T.S.No.3/1 of Shaikpet village) property belongs to the Hyderabad Industries Guest House (Birla Guest House) which was allotted to the (R & B) Department for the construction of ministers quarters. The petitioner has no title to the land in dispute and no evidence is placed before this Hon’ble Court such as TSLR record which is earliest Town Survey and land records prepared in the Hyderabad District in support of his claim.” According to the 4th respondent, the subject property may be present outside the boundary wall constructed by R & B Department and it is not inside the boundary wall and the same was clarified to the petitioner vide letter dated 15.10.2007, but the petitioner has misinterpreted assuming the retaining wall in the north west corner as the boundary wall of the Ministers’ Quarters. It is the contention of the 4th respondent that the R & B has taken possession of the land to an extent of Ac.19.03 gts, belonging to the Hyderabad Industries Guest House (Birla Guest House) situated in Sy.No.403, T.S.No.3/1 of Shaikpet village, which has been demarcated for the purpose of construction of Ministers quarters, within the boundaries of Birla Guest House and has also started construction of Quarters for Ministers during the year 1999 and completed it in the year 2001. It is also the contention of the 4th respondent that after construction of the quarters, the work of the construction of the compound wall around the quarters has been taken up in the year 2003 and completed it in the year 2004, as per the sketch given by the Mandal Revenue Officer. However, in the sale deed executed in favour of the petitioner on 16.10.1984, i.e., much prior to taking possession by the R & B Department, the schedule annexed thereto indicates the neighbours land on the northern side, Birla Guest House compound wall on the Eastern side, neighbours house bearing H.No.8-2-684/4/30 on the Southern side and 30’ wide road on the Western side. This would prima facie indicate that R & B has taken possession of Birla Guest House, which is located on the Eastern side of the petitioner’s land. Therefore, the identity of the land is not in dispute either by the petitioner or by the respondents or by the Advocate Commissioner, but nonetheless the respondents dispute is as to the title of the subject land. It is an admitted fact that the name of the petitioner along with her address written with red paint on the walls is found at the structure existing on the subject land. So, when once the existence of the structure on the subject land is not in dispute and the sale deed further strengthened the contention of the petitioner, the contention of the 4th respondent that the officials present at the time of execution of the commission described the western wall abutting the Ministers quarters as a retaining wall constructed at the earliest point of time to protect the falling of the land as the land is above 20 feet down gradient and what is sought to be constructed is the compound wall as per the sketch furnished by the 1st respondent, appears to be not correct. No doubt, the petitioner is in possession and enjoyment of the subject property and the dispute is only with regard to the title and that cannot be decided in a writ petition like this. For the aforesaid reasons, the writ petition is disposed of directing the respondents not to interfere with the peaceful possession and enjoyment of the petitioner in respect of the property in question. However, so far as the dispute with regard to the title of the property in question is concerned, the respondents are at liberty to workout the remedies available to them as per law. No order as to costs. _____________ C.V.RAMULU,J 21.06.2010 v v