THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WP Nos. 10287, 10167, & 10550 of 2008, WP (Sr) Nos.42079 & 41739 of 2008 COMMON ORDER : ( per Hon’ble Sri Justice Ghulam Mohammed ) WP No.10287 of 2008 is filed by the sole respondent in LGC No.37 of 2006. The other writ petitions are filed, with leave of the Court, by the parties who are not parties to the LGC and the IA being IA No.1206 of 2006. In all these writ petitions, the order dated 19-3-2008 passed in IA No.1206 of 2006 in LGC No.37 of 2006, is assailed. 2. As the order dated 19-3-2008 passed in IA No.1206 of 2006 is assailed in these writ petitions, they are heard together and are being disposed of by this common order. For convenience sake, parties hereinafter will be referred to as arrayed in the interlocutory application. 3. Water Development Employees Co-operative Housing Society Limited, (for short, ‘the applicant-Society’) represented by its Secretary, filed the LGC against the writ petitioner in WP No.10287 of 2008. Pending adjudication of the LGC, the applicant- Society filed the above IA under Order 40, Rule 1, r/w. Section 151 CPC to appoint a Receiver (Advocate) i) to take over the petition schedule property to the custody of the Court, ii) to measure the petition schedule property over which illegal constructions have come up, and to issue notices to the occupants to pay Rs.15 per sq. foot for commercial area and Rs.7 per sq. foot for residential area, iii) to protect the petition schedule property from further encroachment and to prevent further illegal constructions in the occupied areas, iv) to verify the structures which were raised by the respondent with or without permission from the Municipality, and if those structures are found without valid permission, the Receiver to approach the concerned officer to initiate action for demolition as per the provisions laid down therein & v) to provide Police protection to the Receiver to execute the warrant, in the interest of justice. 4. It is the case of the applicant-Society that the employees of the Water Development Society, Moulali, Hyderabad, having formed into a registered Society, purchased land in an extent of Ac.9-15 guntas in Sy.Nos.358/1 and 358/2 situate at Kapra Village, Keesara Mandal, Kapra Municipality vide agreement of sale dated 22/4/1975 through the GPA holder and financial advisor to H E H the Nizam at the rate of Rs.4450/- per acre. That originally the said land belonged to the Nizam and the same was later endowed to Muslim Jung Mosque and became a Wakf property governed by the provisions of the Wakf Act, 1954. That full sale consideration under the agreement of sale was paid by the applicant-Society to the H E H the Nizam and physical possession of the petition schedule property was taken on 22-4-1975 itself. It is stated that since the petition schedule property was the Wakf property, permission was obtained from the Government of AP, vide GO Ms. No.1329, dated 3-12-1985 and in the light of the said GO, the Secretary AP Wakf Board by proceedings dated 12-3-1986 forwarded the application of the applicant-Society to the Special Officer & Competent Authority, Urban Land Ceiling (SC & CA, ULC), Hydrabad to accord permission under the provisions of ULC Act, 1976 to implement the GO and also to execute the registered sale deed in favour of the applicant-Society. The Wakf Board has also confirmed the sale of the petition schedule property by the applicant-Society vide its letter dated 19-4-1987. That this Court in WP No.17957 of 1987 directed the ULC authorities to consider the application of the applicant-Society to grant exemption of the land ceiling. It is also stated that when unsocial elements interfered with the peaceful possession of the petition schedule property, the applicant-Society filed suit OS No.80 of 1981 on the file of District Munsif, East and North, Hyderabad, and the said suit was decreed in favour of the applicant-Society and aggrieved by the said judgment and decree the defendants carried the matter in appeal being AS No.30 of 1984 on the file of I Addl. District Judge, Ranga Reddy District, and the said appeal was dismissed on 29-9-1986 confirming the decree passed in favour of the applicant-Society. That suit OS No.188 of 1985 filed on the file of Principal Junior Civil Judge, Ranga Reddy District, by one Ghouse Khan against the applicant-Society claiming perpetual injunction in respect of the petition schedule property was also dismissed. It is stated that the then Mandal Revenue Officer of Keesara Mandal conducted enquiry and issued proceedings dated 24-5-1985 recording the name of the applicant-Society in Column No.16 of the Pahani for the years 1976-77 and for the years 1988- 1995 and the applicant-Society has also been paying non- agricultural tax to the Government. 5. It is further the case of the applicant-Society that while the matter stood thus, on 19-4-1993, Water Development Society (WDS) had declared lock-out and was completely closed, as result of which all the employees of the applicant-Society were retrenched from service. That as they become un-employed, the members of the applicant-Society have been in search of jobs and were in helpless position. It is stated that taking advantage of this situation, the respondent in the LGC filed suit OS No.653 of 1993 on the file of Principal Senior Civil Judge, Hyderabad, East and North, against the applicant-Society claiming himself to be the Special Power of Attorney of Aga Ali. It is stated the suit filed by the respondent was dismissed and no appeal was filed against the dismissal of the suit and the judgment and decree in that suit became final. It is further the case of the applicant-Society that due to the closure of the Water Development Society, and when the members of the applicant-Society were out in search of jobs, the respondent in the LGC case grabbed the petition schedule property and raised structures and let out to the tenants for cheaper rate of Rs.7/- per sq. foot for residential and Rs.15/- per sq. foot for commercial plot. That the respondent and persons through him have been enjoying the petition schedule property without any legal right, title or possession. That after dismissal of the suit filed by the respondent in the LGC, the respondent has manipulated and forged documents of some of the members of the applicant-Society. That 2/3rd of the petition schedule property is now without any structures and 1/3rd of the portion with structures. That the sole respondent in the LGC has abused the process of law by taking law into his own hand by illegally and forcibly occupying the petition schedule property and thereby committed the act of land grabbing, which is punishable under law. Hence, pending disposal of the main LGC, the applicant-Society has filed the above said IA for appointment of Receiver for the purposes noted above. 6. The IA was contested by the sole respondent in LGC by filing counter affidavit. It was denied that the respondent has grabbed the petition schedule property, as alleged by the applicant-Society. It was denied that he is in physical possession of the petition schedule property or any part thereof. It was also denied that he let out on rent the so called structures and constructions to third parties on rent muchless collecting rents in the manner alleged. 7. The Special Court having considered the rival contentions, by the impugned order allowed the IA by appointing an advocate Receiver. 8. Mr. Mohd. Shafiuddin, learned counsel for the writ petitioner in WP No.10287 of 2008 (sole respondent in LGC) strenuously contended that the Special Court having called for a report from the MRO, Malkajgiri Mandal in respect of the petition schedule property, failed to appreciate the fact that in the report dated 21-8-2007 submitted by the MRO, the name of the respondent-petitioner herein was not shown as being in occupation of the petition schedule property or any part thereof. It was also contended that though in the report of the MRO, 20 persons are named to be in possession of part of the petition schedule property, including an area of Ac.1-29 guntas in occupation of Andhra Pradesh State Road Transport Corporation (APSRTC), out of the total extent of Ac.9-15 gunats, the impugned order is passed against the respondent in spite of the categorical averment made in the counter affidavit filed by him that he is not in possession of the petition schedule property nor any part thereof. 9. Mr. P. Radhive Reddy, learned counsel for the petitioners, who are not parties to the IA nor the LGC in WP Nos.10167 of 2008 and 10550 of 2008 and WP (Sr.) No.41739 of 2008 contended that the petitioners are bona-fide purchasers under registered sale deeds in respect of part of the petition schedule property and the sale transaction pertains to the years 1995, 1999 and 2000. It is further contended that the petitioners constructed pucca houses by their life time savings and they have been in possession from the date of the purchase of the lands. It is also contended that the impugned order passed was behind their back and without making them as parties to the LGC though their names were shown in the report submitted by the MRO, Malkajgiri Mandal. 10. Mr.A. Shireesh, learned counsel for the petitioner in WP (Sr.) No.42079 of 2008 contended that the petitioner is the great grand son of late Mussallam Jung and as per the Firman issued by Mir Osman Ali Khan, HEH the Nizam VII, the petition schedule property and other properties of estate of Mussallam Jung were taken over under the supervision of Court of Wards and by order No.2290, dated 1-5-1950 passed by the Nizam Court of Wards, part of the properties were released and still some of the properties are yet to be released from the Court of Wards. Learned counsel also contended that the Receiver appointed forcibly taken possession of certain lands from the possession of the petitioner though the petitioner has been in possession and enjoyment of part of the petition schedule property in his own right and title. 11. Mr. Abdul Muqeeth Qureshi and Mr. C. Prakash Reddy, learned counsel for the applicant-Society, on the other hand, submitted that the Special Court considering the oral and documentary evidence adduced by the applicant-Society, more particularly Ex.A-3 judgment of the civil Court passed in OS No.653 of 1993 on the file Principal Junior Civil Judge, Hyderabad, East and Nort, Ranga Reddy District, wherein it was categorically recorded a finding that the applicant-Society was put in possession of the petition schedule property on the date of agreement of sale itself, and the respondent in the LGC was never in possession of the petition schedule property, and also considering the need and necessity that the respondent or any person/s through him commit acts of waste, rightly allowed the IA to protect the petition schedule property, pending disposal of the LGC. 12. Having heard learned counsel on either side and having perused the impugned order, the issue that falls for our consideration is whether the Advocate Receiver can be appointed in respect of the entire extent of Ac.9-15 guntas covered by Sy.Nos.358/1 and 358/2 of Malkajgiri Mandal, when the report of the MRO, Malkajgiri Mandal, indicates the names of 20 persons including an area of Ac.1-29 guntas in occupation of Andhra Pradesh State Road Transport Corporation (APSRTC), as being in possession of part of the petition schedule property. 13. It is settled proposition of law that appointment of a Receiver, pending adjudication of a suit, is the discretion of the Court and the party applying for appointment of a Receiver has to prove prima facie case in his favour and he has to inspire the confidence of the Court that he has every chance of success in the case. The party has to prove prima facie the nature of urgency or danger or loss that is going to cause to the property in issue. The party has to approach the Court with clean hands and free from any blemish. 14. In the instant case, the case of the applicant-Society is that it was delivered possession of the entire petition schedule property on the day of the agreement of sale i.e. 22-4-1975. To prove its case, the applicant himself was examined as PW-1 and got marked Exs.A-1 to A-25. Ex.A-6 is stated to be the agreement of sale dated 22-4-1975 executed by Nawab Mir Barkat Ali Khan HEH the Nizam in favour of the applicant-Society. As per Ex.A-6, the property purchased by the applicant-Society was in an extent of Ac.9-15 guntas covered by Sy. Nos.358/1 and 358/2 situate in then Malkajgiri Grampanchayat, Urban Tahsil, Hyderabad District, at the rate of Rs.4,450/- per acre and it is stated that an amount of Rs.40,000/- has been paid on the date of execution of Ex.A-6. It is also a matter of record that the respondent in the LGC admitted in the suit OS No.653 of 1993 filed by him against the applicant-Society that some where on 22nd April, 1975, an agreement of sale was executed by Sri Asadullah, as the GPA of Nizam to sell the land covered by Sy. Nos.358/1 and 358/2 in favour of the applicant-Society. The said suit filed by the respondent was dismissed observing that the respondent along with some unsocial elements tried to grab the petition schedule property. Thereafter, it appears, the applicant-Society filed suit OS No.80 of 1981 on the file of Principal Junior Civil Judge, Hyderabad, East and North, Ranga Reddy District, against the respondent for perpetual injunction and the said suit was decreed in favour of the applicant-Society, against which the matter was unsuccessful carried in appeal by the respondent in AS No.30 of 1984 on the file of Addl. District Judge, Ranga Reddy District at Hyderabad. Ex.A-11 certificate dated 27-4-1987 issued by the Secretary of HEH, the Nizam is to the effect that a sum of Rs.40,000/- was deposited towards sale consideration in respect of the petition schedule property fortifies the case of the applicant- Society that there was a sale transaction and possession of the petition schedule property was delivered on the same day. Exs.A- 18 to 24 certified copies of the pahanies for the years 1976-77, 1988-89, 1989-90, 1990-91, 1992-93, 1993-94 and 1994-95 in possessory column, in all the exhibits, the name of the applicant-Society was shown to be in possession of the petition schedule property. It has also come on record that the respondent has been in the habit of filing suits against the applicant-Society and the suits filed by him are either dismissed on merits or dismissed for non-prosecution or default. 15. It is the allegation of the applicant-Society that the respondent has grabbed the petition schedule property with the help of an ex-parte interim injunction order by suppressing the ture facts. But the case of the respondent is otherwise. It is his case that he neither entered into nor intruded into the petition schedule property nor the respondent was in physical possession of the petition schedule property or any part thereof. The question whether the respondent has grabbed the petition schedule property or not and whether is a land grabber in the light of the averment that he is never ever been in possession of the petition schedule property or any part thereof, are all matters that shall have to be decided in the main LGC. 16. As far as the correctness or otherwise of the impugned order is concerned, in the light of the oral and documentary evidence adduced by the applicant-Society, and in the absence of any oral or documentary evidence adduced by the respondent, in rebuttal, there is no room of taking a conclusion, other than a conclusion that the applicant-Society has made out a prima facie case for appointment of a Receiver. 17. But, as per the report, after conducting enquiry, submitted by the MRO, Malkajgiri Mandal, out of the total Ac.9-15 guntas, Ac.3-15 guntas is in possession of 20 (twenty) persons and an extent of Ac.1-29 guntas is covered by the APSRTC Bus Depot and only an extent of Ac.4-21 guntas is vacant and open land including roads. This report of the MRO is not seriously disputed by the applicant-Society. The 20 persons named in the report of MRO are shown to be in possession of part of the petition schedule property, are admittedly not parties to the LGC or to the present interlocutory application filed for appointment of a Receiver. It is settled proposition of law that even an illegal encroacher has to be evicted by taking recourse to due process of law. Before passing the impugned order, the affected parties who are named in the MRO report are not given opportunity of being heard and without giving them opportunity to put forth their case, the impugned order effecting their rights, who are shown to be in possession of the Ac.3-15 guntas and also an extent of Ac.1-29 guntas in possession of APSRTC Bus Depot, cannot be sustained. 18. In this view of the matter, the impugned order appointing advocate Receiver is restricted to only to the land covered by Ac.4-21 guntas which is stated to be vacant and open land including roads. However, it is made clear that 20 persons named in the report of the MRO shall not make any further constructions and maintain status-quo as existing as on today till the adjudication of the LGC. 19. In the result, the impugned order dated 19-3-2008 passed in IA No.1206 of 2006 in LGC No.37 of 2006 is modified to the extent indicated above and the writ petitions are accordingly disposed of. 20. At this stage, Mr. Mohd. Shafiuddin, learned counsel for the writ petitioner in WP No.10287 of 2008 ( respondent in LGC) submitted that the Special Court while allowing the IA made certain observations touching the merits of the main LGC, and such remarks are un-called for and, therefore, requests to expunge them. It is needless to mention that the Special Court will dispose of the LGC on its own merits uninfluenced by the observations made by it in the impugned order or by the observations made by this Court in this order. There shall be no order as to costs. _____________________ Ghulam Mohammed, J ____________________ G. Bhavani Prasad, J Dated:15-10-2008 Nrg.