THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6288 OF 2009 DATED:01.04.2010 Between: Telagana N.G.Os. Co-operative House Building Society Limited, Regd.No.TBC-74 (Mailardevpally), rep., by its President Mr.M.P.Narayana .. Petitioner And The State of Andhra Pradesh, rep., by its Principal Secretary to Government Department, Secretariat, Hyderabad and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6288 OF 2009 DATED:01.04.2010 ORDER: Telangana Non-Gazetted Officers Co-operative House Building Society Limited (Society) is a surrogate of Telangana Non-Gazetted Officers Union (Union). In June 1968, the Government allotted Acs.50.00 of land to the Union for a consideration of Rs.200/- per acre. In September of the same year, another extent of Acs.50.00 of land was allotted to the Union. The land was allotted for the purpose of distribution to the members of Non-Gazetted Officers of the Society as well as Union. Be it noted, the Society was formed in 1974 for the purpose of developing the land and distributing the same to the members. The Society got a layout (L.P.No.84/1973) and allotted land, statedly, to more than 1000 members who constructed houses. It is the case of the petitioner - Society that in the layout, the land was earmarked for park and community hall. An extent of Acs.4.00 of land was earmarked for construction of school building in future. According to the petitioner, this Acs.4.00 forms part of Acs.100.00 of land allotted to them in 1968. In February, 2009 by proceedings, dated 06.02.2009, the second respondent, namely, the District Collector, Ranga Reddy District, directed the fourth respondent, namely, the Tahsildar, Rajendranagar, to hand over an extent of Acs.4.00 of land 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 District Collector, the Revenue Officials handed over possession of Acs.4.00 to the Deputy Executive Engineer (Housing) of GHMC on 12.02.2009. The petitioner is aggrieved by the same. In this Writ Petition, they assail the proceedings of the District Collector, dated 06.02.2009, allotting an extent of Acs.4.00 of land in Survey Nos.156/1/P to GHMC as illegal, arbitrary and violative of Articles 14, 21 and 300-A of the Constitution of Indian. This Court, while admitting the Writ Petition, stayed all further proceedings pursuant to the orders of the District Collector. The respondents then moved applications for vacating the interim order. When the same were coming for enquiry, the Writ Petition was dismissed for default. The petitioner then moved appropriate application seeking to set aside the order dismissing the Writ Petition for default. The same was ordered in effect restoring the interim order. Aggrieved by the same, the State and its officials preferred appeal being W.A.No.26 of 2010. The Division Bench disposed of the same on 15.03.2010. As controversy is in narrow compass with the consent of the parties the matter has been heard finally and being disposed of at the interlocutory stage. The case of the respondent Nos.1 to 4 (as per counter affidavit filed by fourth respondent) is 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. 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. The members constructed houses. In June 2008, the petitioner requested the Assistant Director of Survey and Land Records to survey the land in Survey No.156/1 allotted to them in 1968. The survey was conducted on 24.06.2008 and 26.08.2008. After that, the petitioner requested the third respondent to fix boundaries as per the survey report. The fourth respondent also requested the Assistant Director to specify the extent of land in occupation of the petitioner - 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 vacant land, the answering respondents have taken possession of Acs.5.00 of land and handed over for public purpose as directed by the District Collector. Action will be taken to evict the petitioner from encroachment under the provisions of Andhra Pradesh Land Encroachment Act, 1905. Learned Senior Counsel for the Society submits that as per the survey conducted by the Assistant Director and as admitted by the respondents, the entire extent of land admeasuring Acs.130.09 guntas is in possession of the petitioner - Society. Therefore, without there being any notice and without recourse to any procedure as per law, the respondents cannot take possession and hand over to GHMC. Secondly submits that the land has been earmarked in the approved layout for the purpose of construction of school building and the same cannot be used for the purpose of construction of houses for GHMC. He has also placed reliance on a Division Bench judgment of this Court in P.Venkateswarlu v Government of Andhra Pradesh[1]. Learned Government Pleader for Revenue (Telangana Area) vehemently submits that when the petitioner was found to have encroached upon about Acs.30.00 of Government land, the land shall be deemed to be in possession of the Government, and therefore the requirement of notice is not necessary. According to him, if any part of the land admeasuring Acs.100.00, which was allotted to this petitioner is taken, a notice is required to be given. He seriously disputes the claim of the petitioner that they have been in possession of the land. He also submits that the layout filed in the Court by the petitioner- Society is doubtful, as the Deputy Director himself expressed his doubt, as to its correctness. The second submission of the learned Senior Counsel concerning the conversion of land earmarked for school for the purpose of housing would not arise for consideration for two reasons. First, no such plea appears to have been taken in the Writ Petition and therefore the petitioner cannot be permitted to raise such a ground. Secondly, if it is proved that the petitioner – Society alone has been in possession of Acs.130.09 guntas of land, though they were allotted Acs.100.00 of land in 1968, the question would be whether the Government can dispossess the petitioner without following the due process of law. In such an event, the other question would be relevant. Therefore, the only issue, which requires consideration is whether the impugned action of the State in handing over an extent of Acs.4.00 of land in Survey No.156/1/P of Mailardevpally Village to GHMC is sustainable in law. The petitioner relies on the layout being L.P.No.84/73 approved by the Director of Town Planning and the location sketch prepared by the Assistant Director of Survey and Land Records. They also rely on the admissions in the counter affidavit in support of their plea that it is a Society which has been in occupation of the land admeasuring Acs.100.00 plus Acs.30.09 guntas in Survey No.156/1. After carefully perusing these documents, this Court is compelled to countenance petitioner’s submissions. The location sketch showing the land in Survey No.156/1/2 was issued by the Assistant Director on 24.07.2008. Though does not mention the area, it shows the boundaries on the eight directions and it also shows the open space earmarked for high school, which is now in contention. Learned Government Pleader, however, relied on yet another similar location sketch given by the same Assistant Director without showing the area earmarked for school. A comparison of both would show that one shows the area in dispute, but does not mention the total extent. The location sketch relied on by the Government shows the area of Acs.130.09 guntas, but without showing the school land. If the copy obtained by the Government and the Assistant Director is the same location sketch supplied to the petitioner under Right to Information Act, 2005, the irresistible inference is that the total area in possession of the petitioner (which was surveyed by the Assistant Director) is Acs.130.09 guntas as rightly contended by the learned Senior Counsel. The layout plan shows the disputed Acs.4.00 of land as forming part of the approved plan and therefore any other argument cannot be accepted. There are clear admissions in the counter affidavit filed by the fourth respondent. It is admitted that the petitioner- Society is in occupation of Acs.130.09 guntas of land. It is also admitted that an extent of Acs.5.00 of land was taken over and was handed over to GHMC. It is further admitted that the provisions of the Land Encroachment Act are to be restored to evict the petitioner from the area, which is an excess of allotment made to them. For ready reference, the relevant statements of the counter affidavit are extracted as under. … The Assistant Director, Survey and Land Records supplied a copy of the sketch, which contains the total extent of the land in occupation of the Society Acs.130.09 gts. Thus, this respondent came to know about the excess land which has been encroached by the petitioner society about Acs.30.09 gts. of the Government land. The petitioner society is having right to retain and to enjoy the property about Acs.100.00 as per the orders but they cannot have an excess land over and above the land allotted to them. Since it is a Government land, this respondent ha taken Acs.5.00 of the land and handed over for the public purpose as per the request of the District Collector. The allegation that the alleged panchanama is not conducted on site is also factually incorrect. At the time of handing over the site to the respondents 5 and 6, this respondent conducted panchanama at the site and handed over the same to the respondents 5 and 6. There is no dispute with regard to the ownership of the society to an extent of Acs.100.00. This respondent is filing the documents which clearly establishes that there is an exchange of land between the Revenue authorities of Ranga Reddy and Hyderabad. Both the documents are filed before this Hon’ble Court for kind perusal. It is relevant to submit that since it is a Government vacant land, this respondent has taken possession and handed over to the respondents 5 and 6. If this respondent has taken the land out of Acs.100.00 then a notice is required to be given to the petitioner society. Presently the T.N.G.Os colony is in possession of Acs.130.09 gts. instead of Acs.100.00 actually allotted to them. Thus, it is crystal clear that the TNGOs Society has encroached the Government land to an extent of Acs.30.09 gts. and made plots in it. Action will be taken to evict the said encroachment under the provisions of Land Encroachment Act after finalization of the Writ Petition as there is an interim order passed by this Hon’ble Court on 25.03.2009. (emphasis supplied) 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. _____________ (V.V.S. RAO, J) 01.04.2010 KH [1] 2001 (6) ALD 533 = 2002 (2) ALT 791