THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.22050 of 2003 Dated:20th August, 2010 Between: Mohd. Sabjar Hussain ….Petitioner and 1. The District Collector, Nizamabad District & Ors. …Respondents **** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.22050 of 2003 ORDER: This Writ Petition has been filed by Mohd. Sabjar Hussain assailing the action of the respondents in forcibly evicting him from Mulgi bearing M.C.No.5-3-657/A, situated near New Bus Stand on National High Way No.7, Kamareddy Town and Mandal, Nizamabad District, as arbitrary, illegal and violative of Articles 14, 21 and 300A of the Constitution of India and consequently direct the respondent authorities to hand over possession of the mulgi bearing M.C.No.5-3- 657/A to the petitioner. 2. The petitioner claims to have purchased Mulgi bearing M.C.No.5-3-657/A. admeasuring 275 sq. feet, situated near New Bus Stand on National High Way No.7, Kamareddy Town and Mandal, Nizamabad District, under a registered sale deed, dated 01.10.2002, from Smt.M.Jaya Laxmi w/o.M.Venkata Swamy, for a valuable consideration of Rs.1,95,000/-. He got the Mulgi mutated in his name in the Municipal records of Kamareddy Municipality vide proceedings No.A1/PSK/8/2002, dated 20.01.2003. He obtained Service Connection for the Mulgi from the Northern Power Distribution Company and he has been paying the by-monthly bill issued by the Northern Power Distribution Company. He let out the premises to one M/s.K.G.N.Electricals. According to the petitioner, the respondent authorities removed electrical material of his tenant and locked the mulgi. Hence, he approached this Court invoking the jurisdiction of this Court under Articles 226 of the Constitution of India with the prayer stated supra. For better understanding of the grievance of the petitioner, I deem it appropriate to refer para.9 of the affidavit filed in support of the Writ Petition, which reads as hereunder: “9. It is respectfully submitted that the action of the Respondent authorities in evicting me and locking the mulgi is an arbitrary exercise of power. The Respondent authorities at no point of time either at the time of construction of mulgi or after the purchase made by me have ever claimed any right over the mulgie till 28.9.2003. The Respondent authorities forcibly removed the entire material of my tenant and locked the mulgie on the same day i.e, 28.9.2003. The action of the Respondent authorities in evicting my tenant and locking the mulgie is an arbitrary exercise of power The rent from the mulgie is the only source of livelihood of my family. In view of the tenant being vacated, I am not being paid my rents.” Initially the Writ Petition was dismissed on 31.10.2003. The petitioner carried the matter in appeal being W.A.No.632 of 2004. The Writ Appeal came to be allowed setting aside the order dated 31.10.2003 with a direction to dispose of the writ petition in accordance with law after bringing on record the version of respondent No.3. For better appreciation, I may refer the relevant portion of the order passed in the writ appeal, which reads as hereunder: “Without taking any counter affidavit on record, more particularly of the third respondent, in whom the respondents’ title vested, the writ petition was dismissed reserving liberty to the appellant for recovery of possession after establishing his title. In the absence of any counter affidavit from the respondents more particularly when appellant had supported the petition on the basis of title deeds, the learned single Judge ought not to have disposed of the writ petition at the admission stage basing on some letter, which was not placed on record by way of an affidavit and copy was not supplied to the appellant. The appeal is allowed and the impugned order is set aside with a direction for disposal of the writ petition in accordance with law after bringing on record the version of respondent No.3. Parties to appear before the learned single Judge on 12-4-2004.” 3. 2nd respondent filed counter-affidavit. Mr.K.Prakash Rao, Asst. Development Officer-and-Liquidator, of the 2nd respondent Society has sworn to the counter-affidavit. The counter-affidavit of the 2nd respondent in brief is: The petitioner is not the owner of the disputed mulgi and he is not in possession of the same. His vendor Smt.Jaya Laxmi was also not the owner of the mulgi and she was never in possession of the mulgi. The sale deeds of the petitioner and his vendor are bogus documents. The 2nd respondent Society ie., Kamareddy Handloom Weavers Cooperative Society, has purchased 11,362 sq. yards of land in S.No.778 situated on the highway No.7 at Kamareddy through two registered sale deeds in the years 1962 and 1964. In the year 1974, the APSRTC has acquired land in S.No.778 for the purpose of construction of bus station. In the said acquisition, the 2nd respondent Society lost most of its land and only a strip of land measuring 4675 sq. yards remained to the society. Mr.M.Venkata Swamy, who is the husband of the vendor of the petitioner, started construction of mulgies in the society’s land without any right and without any sanction from the municipality. The Official Liquidator, on coming to know of the illegal constructions, complained to the Municipality. After due enquiry, the Municipality issued notice of demolition on 24.10.1999 under Section 228(iii) of District Municipalities Act. Thereupon, the said M.Venkataswamy filed WP No.24850 of 1999 claiming himself as the Secretary of the Society. He asserted in the writ petition that the land belongs to the Society and the construction was being done by the Society under deemed permission. The Official Liquidator got himself impleaded as one of the respondents in the said writ petition and disputed the claim of Mr.M.Venkataswamy as the Secretary of the Society. Pending the said writ petition, Smt.M.Jaya Laxmi, who is the wife of M.Venkataswamy, filed W.P.No.16703 of 2002 claiming to be the owner of the mulgi. The Official Liquidator filed a counter-affidavit in the said writ petition and brought to the notice of the Court about the pendency of the earlier writ petition filed by her husband. Pending the said writ petition, the said M.Jaya Laxmi executed the registered sale deed in favour of the petitioner. Ultimately, W.P.No.24850 of 1999 filed by Mr.M.Venkataswamy ended in dismissal on 07.11.2002 and W.P.No.16703 of 2002 filed by Smt.M.Jayalaxmi also ended in dismissal on 08.11.2002. At the time of dismissal of W.P.No.16703 of 2002, Smt.M.Jaya Laxmi sought leave of the Court to file civil suit to establish her right over the property. Smt.M.Jaya Laxmi did not choose to file civil suit to establish her right and instead she executed the sale deed in favour of the petitioner herein. Para.6 of the counter-affidavit needs to be noted and it is thus: “6. I further submit the mulgi which the petitioner claims to have purchased and the other semi-constructed malgies which were illegally sold by the petitioner’s vendor’s husband Venkataswamy have been seized by the Liquidator on 22.12.2001 in the presence of the Municipal Commissioner, Town Planning Officer, Asst. Director (Handlooms) and the police officials and a panchanama has been written duly signed by six panchas. Neither Smt.Jayalaxmi nor her husband Venkataswamy nor any of the illegal purchasers have raised any objection. However, some of the purchasers approached the civil and revenue courts and the petitioner choose to file the present writ petition. As submitted above, the petitioner or his vendor are in possession of the malgi nor they have any right in it. The tax payment receipts obtained by them in collusion with the staff in the municipal office do not confer any right on them. If fact, as stated above, the municipal authorities have given notice for the removal of the illegal constructions which includes the malgi which is the subject matter of the writ petition.” 4. Rule Nisi came to be issued on 19.04.2004. 5. Heard learned counsel appearing for the petitioner and perused the material brought on record. 6. Learned counsel appearing for the petitioner submits that the petitioner purchased Mulgi bearing No.M.C.5-3-657/A admeasuring 275 sq.ft. from Smt.M.Jayalaxmi under a registered sale deed dated 01.10.2002 and therefore, he is the rightful owner of the said premises. A further submission has been made that the respondents highhandedly dispossessed the tenant of the petitioner from the premises without following any due process of law and therefore, the action of the respondents is not legal and proper and the same is liable to be set aside restoring the possession of the premises to the petitioner. 7. I have given my anxious consideration to the contentions advanced by the learned counsel appearing for the petitioner and the material brought on record. The 2nd respondent has specifically stated in the counter-affidavit that the vendor of the petitioner filed W.P.No.16703 of 2002 claiming the property and subsequently the said writ petition ended in dismissal on 08.11.2002, wherein she sought for leave of the Court to file a civil suit to establish her right. Smt.M.Jayalaxmi, having sought the leave of the Court at the time of dismissal of the writ petition, did not choose to file a civil suit to establish her right and instead she executed the registered sale deed in favour of the petitioner. Smt.M.Jayalaxmi, vendor of the petitioner, who has not filed any civil suit to establish her right over the property in civil Court, cannot convey any better title than what she has. 8. In view of the above, I find that the writ petition is devoid of merits and accordingly, the same is hereby dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:20th August, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.22050 of 2003 Dated:20th August, 2010