IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 9653 of 2007 Between: Voltas Employees Cooperative House Building Society Limited, (Regd.No. TA B 508), D.No. 4-161, Madhavi Nagar, Ferojiguda, Hyderabad - 500 011, \Rep. by its Secretary. ..... PETITIONER AND 1 The Cantonment Board, City Civil Court Complex, Secunderabad. Rep. byits Cantonment Executive Officer. 2 Sri Swamy Ayyappa Cooperative Housing Society, Regd. Office at 45, General Chowdary Road, Secunderabad-9, Rep. by its Secretary, Alladi Raghunatha Rao. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate Writ or direction particularly one in the nature of WRIT OF MANDAMUS, declaring the action of the 1st respondent in not taking any action on the representation dated 7-3- 2007made to it by the petitioner's society as illegal, unjust and in violation of Art. 14 & 300-A of the Constitution of India in the interest of justice and fair play and pass such other suitable orders. Counsel for the Petitioner:MR.V.NARASIMHA GOUD Counsel for the Respondent No.: MR.DEEPAK BHATTACHARJEE The Court made the following : ORDER:- Heard Sri V.Narasimha Goud, the leaned Counsel representing the writ petitioner and Sri P.Venugopal and Sri Deepak Bhattacharjee, the learned Counsel representing respondents. 2. This writ petition is filed for a Writ of Mandamus declaring the inaction of the 1st respondent in not taking any action on the representation dt.7-3-2007 made to it by the petitioner’s society as illegal, unjust and in violation of Article 14 and 300-A of the Constitution of India in the interest of justice and fair play and pass such other suitable orders. 3. It is stated that the employees who have been working in Voltas Employees Cooperative House Building Society Ltd. have formed the petitioner society and purchased land to the extent of Ac.1.14 gts. in Sy.No.233 situated in Chinna Tokatta, Bowinpally, Secunderabad in the year 1982 from B.V.Prakash Reddy vide registered document No.1183/02, dt.3-5-82 with a view to construct houses and flats for the members of the petitioner’s society. When the society has surveyed the said survey No.233 in order to fix the boundaries, the land was found encroached by the 2nd respondent’s society. For the same, the Secretary of the petitioner society made enquiry with the 1st respondent and got a copy of the provisional lay out sanctioned in favour of the 2nd respondent by the 1st respondent, and it came to know the 2nd respondent has encroached upon the petitioner’s society land taking advantage of not mentioning the details of neighbouring lands in the layout plan submitted to the 2nd respondent. In fact, the rules and by-law as approved by the Government of India in respect of sanctioning the lay out for the purpose of developing the residential colony, and individual houses situated within the territorial jurisdiction of the 1st respondent requires that the person who is seeking the sanction of lay out of residential colony and individual houses should furnish the a details of land as well as neighbouring lands and houses details in order to have a clear cut view. Thus it clearly reveals that the 1st respondent has done wrong in granting the provisional layout to the 2nd respondent for the extraneous reasons. As such the same is illegal on the part of the 1st respondent which is state instrumentality within the meaning of Article 12 of the Constitution of India. 4. It is also stated that when the boundaries of land of the petitioner is not correctly found, the petitioner’s society made an application to the Mandal Revenue Officer, Tirumalagiri, for surveying the land situated in Sy.No.233 so as to fix its boundaries. However, when the revenue authorities were not taking steps, the petitioner’s society filed W.P.No.12407/2002 wherein this Court directed the Mandal Revenue Officer to conduct the survey and fix the boundaries. When Mandal Surveyor had issued notice to all concerned including the 2nd respondent, the 2nd respondent submitted a letter dt.27-9-2002 stating that S.No.233 is along with survey No.231 and 235. Sy.No.231 and 235 are owned by the 2nd respondent whereas the survey No.233 is owned by the petitioner’s society and stated that issue notice to all the concerned who owned the houses and land to the sides of the 2nd respondent society. On seeing the above, expecting some adverse effect on the respondent society, the 2nd respondent approached this Court by filing W.P.No.16934/2003 showing the petitioner society at wrong address and got the status quo, when the survey was in progress in surveying the survey No.233 and it was hampered. Knowing the above case, the petitioner filed vacate stay petition in W.P.No.16934/2003 and when the vacate stay petition come up on 20-9-204 for hearing, the 2nd respondent withdrew the said Writ Petition W.P.No.16934/2003 sensing some adverse orders are going to be passed against it. In the said Writ Petition, the 2nd respondent had prayed as consequential relief that not to hand over 0.16 guntas of land situated in Sy.No.233 which belongs to the petitioner union. Thus, it is clear case, where the 2nd respondent has encroached upon the petitioner land situated in Sy.No.233 taking advantage of layout sanctioned by the 1st respondent. As such, a representation was made on 7-3-2007 to the 1st respondent requesting that the 2nd respondent has no right over Sy.No.233 and 232 and thereby requested that the 1st respondent to get the survey of the 2nd respondent land situated in Sy.No.231 and 235 so as to fix the boundaries of survey number as well as its boundaries. Though more than one months period is over, the 1st is not taking any steps over the said representation nor passing any order on the said representation as the 2nd respondent has been enjoying the petitioner’s land as well as the Public Works Department land on the guise of the layout sanctioned by the 1st respondent in September,1999. While granting the said layout, the 1st respondent did not verify the actual land in possession nor called for the surveyor report nor gave any opportunity to the neighbouring land owners more particularly to the petitioner and as such the action of the 1st respondent is illegal and bad in law. Due to this sanctioning of the layout in favour of the 2nd respondent, the 2nd respondent encroached upon the petitioner’s land and making constructions illegally. Thus, it is affecting the rights of the petitioner’s Union as well as its property, which are supposed to be protected by the 1st respondent as petitioner’s Union rights are violated, as provided under Article 14 and 300-A of the Constitution of India. In such circumstances, the Writ Petitioner approached this Court by filing the present Writ Petition. 5. In the counter affidavit filed by the 1st respondent, it is stated that Sri Ayyappa Cooperative Housing Society – 2nd respondent submitted an application for sanction of layout on 4-3-98 covering an area of 8396sq.meters in Sy.No.231 and 235 of Chinna Thokatta village, Secunderabad. The application was returned in the first instance on 22- 4-98 on the ground that the notice given was invalid. The society was directed to submit the sale deed copies covering a total area of 13,552 Sq.Yds. A complaint was also received from the petitioner on 15-7-98 alleging that the 2nd respondent encroached land in Sy.No.233 of Chinna Thokatta village, Bowenpally, Secunderabad and while sanctioning the plan, it should be ensured that there is no overlapping of Sy.No.233 while the layout plan in Sy.No.231 and 235 is submitted by 2nd respondent is sanctioned. In view of the above circumstances, under a letter dt.7-11-98, the layout plan of 2nd respondent covering Sy.No.231 and 235 and GLR surveyno.587 of Chinna Thokatta village was referred to Mandal Revenue Officer, Thirumalgherry Mandal for seeking their No Objection. The Mandal Revenue Officer under letter dt.16-11-98 confirmed that the land in Sy.No.231 and 325 consisting of Ac.1.27 guntas in Sy.No.231 and Ac.1.19 gts in Sy.No.235 and that the land in question of Mafi Inam land. Based on the report of the Mandal Revenue Officer, the matter was placed before the Board and a resolution was accordingly passed on 16-9-98 under Resolution No.CBR (8). The layout plan was approved subject to 7 conditions mentioned in the said resolution. The 2nd respondent was again informed under letter dt.5-5-99 to rectify certain mistakes in the proposed layout plan and inform the Board. All the queries raised by the Board are replied by the 2nd respondent under letter dt.21-5-99. Thereafter as per the procedure in vogue, the layout plan of 2nd respondent was referred to the Director of Defence Estate Lands under covering letter dt.14-7-99. The Director, Defence Estates under letter dt.30-8-99 approved the layout of the 2nd respondent subject to several conditions as laid down from (a) to (hence) in terms of the letter given by the Director, Defence Estate and the layout was accordingly approved and release subject to the conditions under letter dt.21-10-1999. 6. It is also stated that a Writ Petition was filed by the petitioner society against Contonment Board and others questioning the layout plan sanctioned by the Board in favour of 2nd respondent and the said Writ Petition was disposed of by this Court on 8-1-2004 recording that the dispute raised in the Writ Petition is a boundary dispute between two private parties and the same cannot be a subject matter of Writ Petition following the ratio laid down by the Hon’ble Supreme Court in Mohan Pandey v. Usha Rani (AIR 1993 S.C., 1225). This Court directed the petitioner to approach the Civil Court and take steps to protect their property and establish its right over the property. The 2nd respondent also filed W.P.No.16394/2003 and an interim order was passed in W.P.M.P.No.21038/2003 on 13-8-2003 directing the parties to maintain status quo as regards to the lands in question. The petitioner therefore took up the issue once again with the respondent Board for reconsideration of the layout plan and the respondent Board therefore addressed a letter dt.28-11-2006 to the Director, Defence Estates bringing to their notice the subsequent developments and question of facts involved in the case. A letter was also again addressed on 24-11-2006 giving his comments to the Defence Estate Officer. Further it is stated that the above referred Writ Petition is filed seeking Writ of Mandamus to declare the inaction of respondent No.1 in not taking any action on the representation dt.7-3-2007 as illegal. It is stated that the allegation levelled is absolutely incorrect as the respondent No.1 is under obligation to follow the due procedure of Cantonment Board. The final sanctioning authority for release of the layout plan is the Principal Director, Defence Estates and the respondent No.1 has submitted a detailed report to the Director, Defence Estates on 28-11-2006 itself. The investigation made after receiving the representation revealed that no cantonment land (Class-C land or Defence land or B-1, B-3, B-4 or A-1 land) is encroached by respondent No.2 society and the same is confirmed by the custodian of Cantonment Land Records i.e., Defence Estate Officer. The layout plan submitted by the 2nd respondent covering the land in Sy.No.231 and 235 only with correspondence GLR No.587. As the layout submitted in respect of Revenue Sy.No.232 or 233 or 234, the question of issuing any notice to the petitioner did not arise. No irregularity was committed in the matter of sanctioning of layout and the allegation levelled against the Board and the Director, Defence Estates are devoid of any merits. The petitioner deliberately and wilfully had suppressed the fact in the writ affidavit that the earlier Writ Petition filed by the petitioner in W.P.No.552 of 2004 was disposed of by this Court on 8-1-2004 directing the petitioner to work out its remedies before the competent Civil Court, as the dispute raised is arbitrary and the dispute between two parties. The relief now sought for is hit by Principle of res judicata, as the similar relief was earlier sought for in W.P.No.552/2004 on 8-1-2004. Further, the approach of the petitioner is unclean, as the petitioner deliberately and wilfully have not disclosed about the disposal of earlier Writ Petition W.P.No.552/04 on 8- 1-2004 directing the petitioner to work out their remedies before the competent Civil Court placing reliance on the ratio laid down in Mohan Pandey v. Usha Rani (AIR 1993 S.C., 1225). In such circumstances, it is stated that the Writ Petition is not maintainable both on questions of fact and questions of law as well and the same is liable to be dismissed. 7. These are the respective stands taken by the parties. 8. Specific stand had been taken that the respondent No.1 is under an obligation to follow due process of Cantonment Board. The final sanctioning authority for release of the layout plan is the Principal Director, Defence Estates and the respondent No.1 had submitted a detailed report to the Director, Defence Estates on 28-11-2006. The investigation made after receiving the representation revealed that no cantonment land (Class-C land or Defence land or B-1, B-3, B-4 or A-1 land) is encroached by R.2 society and the same is confirmed by the Custodian of Cantonment Land Records i.e., the Defence Estate Officer. The layout plan submitted by Sri Swamy Ayyappa Cooperative Housing Society covering survey No.231 and 235 only with correspondence GLR No.587. As the layout plan was not submitted in respect of Revenue survey No.232 or 233 or 234, the question of issuing any notice to the petitioner did not arise. Hence, no irregularity was committed in the matter of sanctioning of the layout. Further the Writ Petition W.P.No.552/2004 had been referred to wherein the petitioner was directed to work-out the remedies before the competent Civil Court. In the light of the directions already issued in W.P.No.552/2004 and also in the light of the ratio laid down in MOHAN PANDEY v. USHA RANI (AIR 1993 S.C., 1225), this Court is of the considered opinion that the petitioner is not entitled to the relief prayed for in the Writ Petition and even if the representation of the petitioner to be considered, nothing further can be done and hence liberty is given to the petitioner to work out the remedies in accordance with law. Except making this observation, nothing else can be done. 9. With the above liberty, the Writ Petition is dismissed. No order as to costs. _____________________ Justice P.S. Narayana September, 2009 smr