IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE TWENTY NINTH DAY OF MARCH TWO THOUSAND AND ELEVEN THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WAMP No.143 of 2011 in WRIT APPEAL No.326 of 2010 and WRIT APPEAL No.326 of 2010 BETWEEN: State of A.P. rep. by Principal Secretary to Govt., Revenue Department, Secretariat, Hyderabad and others … APPELLANT(S) And Telangana N.G.Os Co-operative House Building Society Limited, rep. by its President M.P.Narayana and others … RESPONDENT(S) THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WAMP No.143 of 2011 in WRIT APPEAL No.326 of 2010 and WRIT APPEAL No.326 of 2010 JUDGMENT: (Per THE HON’BLE SRI JUSTICE A.GOPAL REDDY) This appeal under Clause 15 of the Letters Patent is filed assailing the order of a learned single Judge dated 01.04.2010 passed in W.P.No.6288 of 2009. 2. Appellants herein are the respondents 1 to 4 in WP No.6288 of 2009, first respondent herein is the writ petitioner and respondents 2 and 3 herein are the respondents 5 and 6 in the said writ petition. 3. The facts, in brief, that led to the filing of this appeal are these. The first respondent herein i.e. Telangana Non-Gazetted Officers Co-operative House Building Society Limited which is a society formed in 1974 for the purpose of developing the land and distributing the same to the members (hereinafter referred to as ‘society’) filed WP No.6288 of 2009 against the appellants and respondents 2 and 3 herein challenging the allotment of land to an extent of Ac.4-00 belonging to it in Sy.No.156/1/P situated at Mailardevpally Village, Rajendranagar Mandal, Ranga Reddy District (hereinafter referred to as ‘land in dispute’) to the other Government Departments contending that the same was earmarked for a High School, a College and a Play Ground for the purpose of the colony people. In the writ petition it is stated that in June 1968 the Government allotted Acs.50-00 of land to the Union for a consideration of Rs.200/- per acre and in September of the same year another extent of Acs.50-00 of land was allotted to the Union for the purpose of distribution to the members of Non-Gazetted Officers of the society as well as Union and that the society got a layout (L.P.No.84/1973) and allotted that land to more than 1000 members who constructed houses therein. It is the case of the society that in the layout a portion of the land was earmarked for park and community hall and also the land in dispute was earmarked for construction of school building etc., in future and that the land in dispute forms part of Acs.100.00 of land allotted to it in 1968 and in February 2009 by proceedings dated 06.02.2009 the second appellant directed the fourth appellant to hand over the land in dispute to Greater Hyderabad Municipal Corporation (GHMC). There is no dispute that the land was sought to be given to GHMC for the purpose of construction of houses to persons belonging to weaker sections. In furtherance of the proceedings of the second appellant, the revenue officials handed over possession of the land in dispute to the Deputy Executive Engineer (Housing) of GHMC on 12.02.2009. Hence the writ petition. 4. It may be noted that while admitting the Writ Petition this Court on 25.03.2009 stayed all further proceedings pursuant to the orders of the second appellant including dispossession of the society from the land in dispute. Aggrieved thereby the appellants herein moved application for vacating the said interim order and when the same was coming up for enquiry, the Writ Petition was dismissed for default on 22.09.2009. The society then filed an application WPMP No.28193 of 2009 in WP No.6288 of 2009 for setting aside the order dismissing the Writ Petition for default and the same was ordered by order of this Court dated 12.10.2009 in effect restoring the interim order granted earlier. Aggrieved thereby, the appellants herein preferred an appeal WA No.26 of 2010 along with WAMP No.90 of 2010 for suspension of the interim order passed in WPMP No.28193 of 2009 in WP No.6288 of 2009 dated 12.10.2009 and a Division Bench of this Court on 22.01.2010 granted interim suspension accordingly. Aggrieved by the same the society filed WAVMP No.159 of 2010 in WAMP No.90 of 2010 in WA No.26 of 2010 for vacating the interim order of suspension passed by the Division Bench on 22.01.2010 and a Division Bench of this Court on 05.02.2010 passed order directing the appellants to depute one of its revenue officials to identify an extent of 4.00 acres of land and submit a report to this Court within a period of two weeks. A report, along with a sketch plan of the Mandal Surveyor and report of the Additional Mandal Revenue Inspector, to that effect is filed by the fourth appellant stating that it is reported by the Mandal Surveyor and Additional Mandal Revenue Inspector that they have inspected the land and found that the entire land is covered by houses and plots and that there is no vacant un-allotted land available except the land to an extent of Acs.4-00 gts in Sy.No.156/1/P situated at Mailerdevpally village which was already allotted to D.M.(Housing), Hyderabad. On 15.03.2010 a Division Bench of this Court disposed of WA No.26 of 2010 with the following observations. “This writ appeal is disposed of without any intervention on the understanding that the learned counsel for the parties shall address the Bench when asked for. To achieve the objective, let the matter be listed on 17.3.2010 with liberty to the learned counsel for the parties to mention. In view of the consensus arrived at between the learned counsel for the parties, we would like to request the learned Single Judge to consider the disposal of the matter at the earliest. Interim direction granted by the Division Bench shall remain in force till the matter is considered and direction afresh is passed by the learned Single Judge.” 5. In the counter affidavit filed by the fourth appellant in the writ petition the case of the appellants herein was that in June and September 1968, the Government allotted an extent of Acs.100.00 of land in Survey No.156/1 of Mailardevpally Village of Rajendranagar Mandal in Rangareddy District in favour of the Union for construction of houses of its members and as directed by the Government, the Union handed over the land to the society, who have got approved layout plan from the Director of Town Planning and allotted plots to their members who constructed houses therein. It was also their case that as the society requested the Assistant Director of Survey and Land Records to survey the land in Survey No.156/1 allotted to it in 1968, the survey was conducted on 24.06.2008 and 26.08.2008 and thereafter the society requested the third appellant herein to fix boundaries as per the survey report and that the fourth appellant also requested the Assistant Director to specify the extent of land in occupation of the society. The Assistant Director reported that an extent of Acs.130.09 guntas is in occupation of the society. Having come to know that the society encroached upon the land to an extent of Acs.30.09 guntas in excess of Acs.100.00 allotted to them and it is a Government land, they have taken possession of Acs.5.00 of land and handed over the same for public purpose as directed by the District Collector. It is also stated that at the time of handing over the site to the respondents 2 and 3 herein the fourth appellant conducted panchanama at the site and that there is no dispute with regard to the ownership of the society to an extent of Acs.100-00 and filed documents to show exchange of land between the revenue authorities of Ranga Reddy and Hyderabad. It is also stated that presently the society is in possession of Acs.130-09 gts instead of Acs.100-00 gts actually allotted to them and that action will be taken to evict the society from encroachment under the provisions of Andhra Pradesh Land Encroachment Act after disposal of the writ petition and they could not take any action in view of the interim orders passed by this Court in WPMP No.8206 of on 2009 in WP No.6288 of 2009 on 25.03.2009. 6. The learned single Judge after considering the material on record by order dated 01.04.2010 allowed the writ petition. It is questioning this order the present appeal is preferred. The relevant portion of the observations of the learned single Judge is as follows. “From the affidavit evidence as above as well as documentary evidence produced before the Court, the conclusion is inevitable. Though the petitioner – Society was allotted Acs.100.00 of land in June and September 1968, (see paragraph Nos.2, 3 and 5 of Writ affidavit where the petitioner admits this), they are in possession of Acs.130.09 guntas of land in Survey No.156/1/2 of Mailardevpally. If this is the position, any action of the Government to dispossess the petitioner without due process of law is illegal and constitutionally impermissible. Indeed, learned Government Pleader does not dispute it. Indeed the respondents in their counter themselves came forward saying that action will be taken to evict the petitioner - Society from the encroachment under the provisions of the Land Encroachment Act. Having admitted that the petitioner – Society was in occupation of the entire extent of Acs.130.09 guntas of land, the respondent Nos.2 and 3 would not have handed over possession to respondent Nos.5 and 6 nor is sustainable in law. The impugned proceedings of the District Collector and panchanama under which the land is allotted, therefore, suffer from defect and are vitiated by non-compliance with the principles of natural justice. As such they are liable to be set aside. The Writ Petition is accordingly allowed as prayed for. This, however, does not preclude the State from taking appropriate action for recovery of possession of excess land in possession of the petitioner – Society as per law. There shall be no order as to costs.” 7. It may be noted that along with the present appeal, the appellants have also filed WAMP No.746 of 2010 seeking suspension of the order dated 01.04.2010 passed in WP No.6288 of 2009 stating that the interim order passed by a Division Bench of this Court in WAMP No.90 of 2010 in WA No.26 of 2010 granted interim suspension of the order of the learned single Judge dated 12.10.2009 till the disposal of the writ petition and during the interregnum period, by virtue of the above interim orders of the Division Bench of this Court, the District Manager (Housing) entered into a contract with M/s.Safa Constructions and A.Ramu, Contractor, on 27.02.2009 and 26.02.2009 respectively and handed over the site and commenced the construction and the construction is at the stage of slab level and the said fact has been brought to the notice of the learned single Judge at the time of hearing of the Writ Petition. A Division Bench of this Court by order dated 17.08.2010 in WAMP No.746 2010 in the present appeal passed the following order. “Notice to the respondents. Shri Ranga Rao Nellutla, learned Counsel, accepts notice for first respondent and Shri R. Radhakrishna Reddy, learned Standing Counsel for Greater Hyderabad Municipal Corporation, accepts notice for respondent Nos.2 and 3. Indisputably construction has already commenced on 4.00 acres of land in survey No.156 of Mailardevpally Village of Rajendranagar Mandal when there was no direction from the Court to the contrary. That apart considering the matter in the given facts and circumstances of the case, we deem it appropriate to allow the appellants to go ahead with the construction subject to outcome of the Writ Appeal but they shall not allow third party interests to step in. Be listed after two weeks. Counters in the meantime.” 8. Here it should be mentioned that third parties, six in number, filed WAMP No.143 of 2011 in the present appeal seeking their impleadment in the writ appeal stating that they belong to below poverty line and are being identified as eligible beneficiaries for allotment of flats in LIG housing scheme of weaker sections at Sy.No.166 at Bandlaguda, Hyderabad and that they were also issued possession certificates cum provisional order of allotment of flat in LIG housing scheme. This petition will be dealt with a litter later. 9. The learned Advocate General appearing on behalf of the appellants contended that since admittedly the society was allotted only Acs.100-00 of land, it cannot claim title to the land i.e. Acs.30-09 gts in excess of the allotment made to it. It is also contended that in view of the interim orders passed by this Court in WAMP No.90 of 2010 in WA No.26 of 2010 suspending the order of the learned single Judge dated 12.10.2009 till the disposal of the writ petition the construction was proceeded with and now it is in full swing and ground plus three floors were constructed by spending approximately Rs.2.5 crores and since the society cannot claim any land more than what was allotted to it more particularly the Acs.4-00 of land in which the construction work is going on as admittedly does not belong to the society. He also added that issuing of notice to it and taking further proceedings for taking possession of the excess land from it is only a mere formality. He also contended that the learned single Judge erred in allowing the writ petition in the circumstance of this case. 10. Per contra, Sri D.Prakash Reddy, the learned counsel appearing for the society contended that there is no demarcation of the excess land i.e. Acs.30-09 gts which is said to include the Acs.4-00 of land and therefore the petitioners are right in claiming that the Acs.4-00 of land on which the construction is going on forms part of Acs.100-00 allotted to it and which was earmarked for the purpose of construction of High School, College, play ground etc., for the purpose of colony people. It is also contended that the appellants having admitted in the counter filed by them in the writ petition to the effect that necessary procedure will be followed for taking possession of the excess land from the society, without issuing any notice to the society, they cannot unilaterally come to a conclusion that the society is in possession of the land in excess of what was allotted to it and say that it is a mere formality and therefore the order of the learned single Judge does not warrant any interference by this Court. 11. From the above rival contentions the point that arises for determination is whether the Acs.4-00 of land in dispute forms part of Acs.100-00 of land allotted to the society or forms part of the excess land i.e. Acs.39-09 of land said to be in possession of the society and belongs to the Government as claimed by the appellants. Admittedly no notice was issued to the society before specifying the excess land stated to be in its occupation than the land originally allotted to them and that the same is liable to be resumed to the Government for allotting the same to any other public purpose. In the lay out plan submitted along with the writ petition discloses that the land in dispute i.e. Acs.4-00 of land is in midst of the colony. The contention of the society is that the same is earmarked for future needs of the colony people i.e. for construction of High School, College, play ground etc., and so the possession of the same cannot be taken by the appellants for any other purposes. 12. Whether the Acs.4-00 of land in dispute forms part of Acs.100-00 of land allotted to the society or forms part of the excess land i.e. Acs.39-09 of land said to be in possession of the society and belongs to the Government as claimed by the appellants and whether possession of the same can be resumed by the Government for any other public purpose are all findings of facts which can be decided only after issuing notice to the society and conducting a detailed survey in the presence of both the parties with the boundaries specified in the allotment order made to the society. Unless and until such exercise is completed it is difficult to presume that the society is in excess of the land allotted to it. In view thereof the order of the learned single Judge challenged in this appeal does not suffer from any infirmity warranting interference by this Court. There are no merits in the appeal the same is liable to be dismissed. It is made clear that since the appellants are already granted liberty for taking appropriate action for recovery of possession of the excess land alleged to be in occupation of the society the same has to be done only by following due process of law but not unilaterally. 13. In view of the finding arrived at by us in this appeal and more particularly in view of the interim direction of this Court dated 17.08.2010 in WAMP No.746 of 2010 in this appeal, third parties cannot claim any interest in the land in dispute and so they are not necessary and proper parties to this appeal. Hence, WAMP No.143 of 2011 is dismissed. 14. The Writ Appeal is accordingly dismissed. There shall be no order as to costs. 15. However, in view of the peculiar circumstances of this case and since the appellants are already granted liberty in the writ petition for taking appropriate action for recovery of possession of the excess land alleged to be in occupation of the society and since the interim direction granted by this Court on 17.08.2010 in WAMP No.746 of 2010 to the effect not to allow third party interests to step in is in force till today, we deem it appropriate that such direction shall continue till the process of taking appropriate action for recovery of possession of the alleged excess land from the society is completed. Let there be a direction as such. ____________________ A.GOPAL REDDY, J _____________________ N.RAVI SHANKAR, J 29th March 2011 CVRK